December 2, 2022
Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))
https://www.beynensonlaw.com/case-law/heal-rite-p-t-p-c-v-state-farm-mut-auto-ins-co-2022-ny-slip-op51246u/
- Decided
- December 2, 2022
- Citation
- 2022 NY Slip Op 51246(U) · 77 Misc 3d 133(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 Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))
| Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2022 NY Slip Op 51246(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2021-637 K C
against
State Farm Mutual Auto. Ins. Co., Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair 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 (Nicholas W. Moyne, J.), entered October 27, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint.
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 granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the EUOs, had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and defendant’s mailing logs, submitted in conjunction with the affidavit, provided additional proof that they were delivered to the post office on the dates set forth in the affidavit. In addition, defendant submitted an affirmation by its attorney who was scheduled to conduct the [*2]EUOs, which was sufficient to establish the assignor’s failure to appear (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As defendant established its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]), and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
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 (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 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 proved timely mailing of the EUO scheduling letters and, through the affirmation of the attorney scheduled to conduct the EUOs, the assignor's failure to appear.
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 established that its denials on the EUO no-show ground were timely mailed, as part of its prima facie entitlement to dismissal.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer's standard-office-practice affidavit, supported by mailing logs showing delivery to the post office, established timely mailing of the EUO letters and denials.
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
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.
- Pavlova v Nationwide Ins. (2021 NY Slip Op 50213(U))An assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor.
- TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))The insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
Similar decisions
- New York Wellness PT, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50608(U))The insurer failed to prove the assignor's EUO nonappearances through personal knowledge or to establish timely denial after the alleged failures.
- Sanford Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50576(U))The insurer's attorney's affirmation established the provider's EUO nonappearances despite a challenge to proof of presence at the start times.
- 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.
- NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))The insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.