December 2, 2022

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))

https://www.beynensonlaw.com/case-law/first-spine-chiropractic-of-ny-p-c-v-nationwide-affinity-ins-co-of-am-2022-ny-slip-op-51252u/

Court: Appellate Term, Second Department
Decided: December 2, 2022
Citation: 2022 NY Slip Op 51252(U) · 77 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am., 77 Misc 3d 133(A), 2022 NY Slip Op 51252(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion. Rejecting the provider's sole appellate contention, it found the claims specialist's and mailing manager's affidavits sufficient to establish timely denial and found no triable issue in opposition.

Reported in New York Official Reports at First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))

[*1]

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am.

2022 NY Slip Op 51252(U) [77 Misc 3d 133(A)]

Decided on December 2, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2021-790 K C

First Spine Chiropractic of NY, P.C., as Assignee of Fabian, Angel, Appellant,
against
Nationwide Affinity Insurance Company of America, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered December 30, 2020. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s sole appellate contention with respect to defendant’s motion for summary judgment dismissing the complaint, the affidavits of defendant’s claim specialist and mailing manager were sufficient to establish, prima facie, that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; JCC Med., P.C. v Lancer Ins. Co., 71 Misc 3d 140[A], 2021 NY Slip Op 50485[U] [*2][App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). In opposition, plaintiff failed to raise a triable issue of fact.

Accordingly, the order is affirmed.

ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 2, 2022

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.

No-show: coverage defense or precludable?

Open the full map

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

Held the insurer's claim specialist and mailing manager affidavits established that it timely denied the claims on its EUO no-show defense, rejecting the provider's sole contention, so dismissal was affirmed.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

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.

Proof of mailing

Open the full map

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 claim specialist's and mailing manager's affidavits sufficient to establish prima facie that the denials were timely mailed, and the provider raised no triable issue.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
JCC Med., P.C. v Lancer Ins. Co. (2021 NY Slip Op 50485(U))Proof of timely first-class mailing of EUO scheduling letters makes proof that copies were also sent by certified mail unnecessary.

Similar decisions

ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50782(U))The insurer established that the provider's assignor failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's action for assigned first-party no-fault benefits and denying the provider's cross motion.
Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
Vital Chiropractic, P.C. v Nationwide Ins. Co. (2019 NY Slip Op 50425(U))The insurer proved IME nonappearances and timely denials for all but one claim, as to which receipt remained disputed.