July 21, 2023
Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50796(U))
https://www.beynensonlaw.com/case-law/shafai-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2023-ny-slip-op50796u/
- Decided
- July 21, 2023
- Citation
- 2023 NY Slip Op 50796(U) · 79 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50796(U))
| Shafai Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2023 NY Slip Op 50796(U) [79 Misc 3d 132(A)] |
| Decided on July 21, 2023 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 July 21, 2023
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MARINA CORA MUNDY, J.P., LISA S. OTTLEY, LOURDES M. VENTURA, JJ
2023-62 K C
against
State Farm Mutual Automobile Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (D. Bernadette Neckles, J.), entered July 29, 2022. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action of the complaint and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.
Contrary to plaintiff’s sole contention with respect to the branches of defendant’s motion seeking summary judgment upon the first and second causes of action, the affidavit of defendant’s employee was sufficient to give rise to a presumption that the examination under oath scheduling letters and denial of claim forms as to the claims underlying those causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co., 78 Misc 3d 133[A], 2023 NY Slip Op 50442[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2023]). [*2]Thus, plaintiff has not demonstrated any basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action, and denied the branches of plaintiff’s cross-motion seeking summary judgment upon those causes of action.
Accordingly, the order, insofar as appealed from, is affirmed.
MUNDY, J.P., OTTLEY and VENTURA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: July 21, 2023
Legal questions (3)
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the insurer employee's affidavit sufficient to raise a presumption that the EUO scheduling letters and denial of claim forms were timely mailed, which was the provider's only challenge.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer's employee affidavit raised a presumption that the EUO scheduling letters were timely mailed, rejecting the provider's sole challenge, so dismissal of the causes of action on the EUO defense was affirmed.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer proved timely mailing of the denial of claim forms on its EUO no-show defense, rejecting the provider's challenge and affirming dismissal of the first and second causes of action.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Horizon P.T. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2023 NY Slip Op 50442(U)) FollowedThe provider's claims were dismissed based on res judicata and sufficient proof of timely mailing for the EUO nonappearance defense.
Similar decisions
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.
- Acupuncture Healthcare Plaza I, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50738(U))The insurer's cross motion for summary judgment dismissing the provider's complaint for EUO nonappearance was granted.
- Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form.