December 11, 2014

Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co. (2014 NY Slip Op 51786(U))

https://www.beynensonlaw.com/case-law/foster-comprehensive-med-p-c-v-travelers-prop-cas-ins-co-2014-nyslip-op-51786u/

Court: Appellate Term, Second Department
Decided: December 11, 2014
Citation: 2014 NY Slip Op 51786(U) · 46 Misc 3d 127(A)
Posture: Trial
Outcome: Provider prevailed
Issues: Trial and evidence Timeliness and preclusion
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co., 46 Misc 3d 127(A), 2014 NY Slip Op 51786(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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.

The insurer failed to offer trial evidence on timely EUO notices and denials after stipulating to the provider's prima facie case. At the nonjury trial of the provider's assigned no-fault action, the sole remaining issues were whether the insurer timely sent EUO scheduling letters and timely denied the claims. After counsel discussed the underlying facts with Civil Court, Kings County, the insurer called no witnesses and presented no evidence. The Civil Court, Kings County, awarded judgment to the provider. Following Dilon Med. Supply Corp. v Travelers Ins. Co., the Appellate Term, Second Department, found no basis to reverse in light of the stipulation and the insurer's failure of proof, and affirmed the judgment.

Reported in New York Official Reports at Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co. (2014 NY Slip Op 51786(U))

[*1]

Foster Comprehensive Med., P.C. v Travelers Prop. Cas. Ins. Co.

2014 NY Slip Op 51786(U) [46 Misc 3d 127(A)]

Decided on December 11, 2014

Appellate Term, Second 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 11, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1380 K C

Foster Comprehensive Medical, P.C. as Assignee of CLIFF LAWRENCE, Respondent,
against
Travelers Property Casualty Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Leonard Scholnick, J.H.O.), entered August 8, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $791.35.

ORDERED that the judgment is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated, among other things, that plaintiff had satisfied its prima facie burden. The sole issues before the Civil Court were whether defendant had timely sent letters scheduling examinations under oath and whether defendant had timely denied plaintiff’s claims. After counsel for the parties discussed the facts underlying the issues with the court, defense counsel did not call any witnesses. The court awarded judgment to plaintiff.

Inasmuch as the parties stipulated to plaintiff’s prima facie case and defendant failed to present any evidence, there is no basis to reverse the judgment (see Dilon Med. Supply Corp. v Travelers Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50737[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 11, 2014

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed

Affirmed judgment for the provider after a nonjury trial because, the issues being whether the insurer timely sent EUO scheduling letters and timely denied the claims, the insurer called no witnesses and presented no evidence.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Dilon Med. Supply Corp. v Travelers Ins. Co. (2009 NY Slip Op 50737(U)) FollowedThe insurer's credited peer-review testimony established lack of medical necessity for the supplies, and the provider offered no rebuttal.

Similar decisions

PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
Flatlands Med., P.C. v Travelers Ins. Co. (2014 NY Slip Op 51856(U))The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others.
V.S. Med. Servs., P.C. v Travelers Ins. Co. (2013 NY Slip Op 50973(U))The provider failed to identify the claims sued upon or prove they remained unpaid, so it did not establish a prima facie case at trial.
Globe Med. Care O.L.P.C. v Travelers Ins. Co. (2010 NY Slip Op 50020(U))The insurer waived any objection to the provider's failure to file proof of service by never raising it in the action.
Treka Med., P.C. v Travelers Ins. Co. (2016 NY Slip Op 51411(U))The insurer established nonreceipt of one claim and outstanding verification for five others.