July 14, 2006
West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))
https://www.beynensonlaw.com/case-law/west-tremont-med-diagnostic-p-c-v-allstate-ins-co-2006-ny-slip-op-51374u/
- Decided
- July 14, 2006
- Citation
- 2006 NY Slip Op 51374(U) · 12 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show defense: insurer's proof · Claimant's prima facie case on motions (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))
| West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. |
| 2006 NY Slip Op 51374(U) [12 Misc 3d 141(A)] |
| Decided on July 14, 2006 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McCOOE, J.P. DAVIS, GANGEL JACOB, JJ
570039/06.
against
Allstate Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court, Bronx County (Julia I. Rodriguez, J.), dated October 11, 2005, which granted plaintiff’s motion for summary judgment.
PER CURIAM:
Order (Julia I. Rodriguez, J.) dated October 31, 2005, affirmed, with $10 costs.
Plaintiff, a health care provider seeking to recover no-fault benefits for services rendered to its assignor, established a prima facie entitlement to summary judgment by proof that it submitted its claim form setting forth the fact and the amount of the loss and that payment of benefits was overdue (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue of fact since its submissions did not establish that the insurance policy in effect contained an endorsement authorizing examinations under oath (EUO) pursuant to 11 NYCRR 65-1.1(d). While plaintiff’s claim was submitted after the effective date of the revised insurance regulations which include EUOs in the Mandatory Personal Injury Protection Endorsement, the provisions of the revised regulations are inapplicable until the issuance of new or renewal policies containing the revised endorsement (see SZ Med. Servs. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A][2005]). Nor may defendant base its right to an EUO on the provisions of the policy requiring the claimant’s “cooperation” because the no-fault protection created by statute may not be qualified by the conditions of the liability portion of the insurance policy (see Utica Mut. Ins. Co. v Timms, 293 AD2d 669, 670 [2002], lv dismissed 98 NY2d 727 [2002]).
This constitutes the decision and order of the court.
Decision Date: July 14, 2006
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer's EUO defense raised no triable issue because it did not show the policy in force contained the revised endorsement authorizing EUOs, and the liability policy's cooperation clause could not supply that authority.
Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider established its prima facie case by proof that it submitted the claim form showing the fact and amount of loss and that payment was overdue, shifting the burden to the insurer.
Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 45 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Similar decisions
- SZ Med. P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 51842(U))The insurer's EUO defense failed because it did not establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, First Department, reversed the denial of the providers' summary judgment motion, granted the motion, and remanded for statutory interest, attorney fees, and entry of judgment.
- Elite Psychological Servs., P.C. v Trumbull Ins. Co. (2005 NY Slip Op 51427(U))The insurer failed to establish that the policy authorized EUOs, so its denial based on the assignor's nonattendance was untimely.
- Star Med. Servs. P.C. v Eagle Ins. Co. (2004 NY Slip Op 24482)The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
- Star Med. Servs. P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 50505(U))The insurer failed to establish an EUO-authorizing endorsement or submit admissible evidence of a staged-accident defense.
- Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 25336)The insurer's investigator affidavit raised a triable coverage issue based on a founded belief that the collision furthered insurance fraud.