September 23, 2022
Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))
https://www.beynensonlaw.com/case-law/wellness-plaza-acupuncture-p-c-v-nationwide-ins-2022-ny-slip-op50934u/
- Decided
- September 23, 2022
- Citation
- 2022 NY Slip Op 50934(U) · 76 Misc 3d 135(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 Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))
| Wellness Plaza Acupuncture, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50934(U) [76 Misc 3d 135(A)] |
| Decided on September 23, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 23, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHELLE WESTON, J.P., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2021-131 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Maksim Leyvi and Richard Rozhik of counsel), for appellant. Hollander Legal Group , P.C. (Allan S. Hollander and Christopher Volpe 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 February 26, 2021. 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 granting 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 (EUOs), and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contentions on appeal with respect to defendant’s motion, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and plaintiff failed to raise a triable issue of fact with respect to the timeliness of the mailings. Plaintiff’s contention that the initial EUO scheduling letter, which was mailed prior to the receipt of the claims at issue [*2]here, was required to be sent to plaintiff’s assignor within 15 business days of defendant’s receipt of either the NF-2 form or a claim received from another provider lacks merit (see 11 NYCRR 65-3.5 [b]; Appendix 13; UGP Acupuncture, P.C. v Metlife Auto & Home, 76 Misc 3d 129[A], 2022 NY Slip Op 50792[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co., 75 Misc 3d 141[A], 2022 NY Slip Op 50606[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Columbus Imaging Ctr., LLC v Erie Ins. Co. of NY, 75 Misc 3d 137[A], 2022 NY Slip Op 50569[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]).
Accordingly, the order is affirmed.
WESTON, J.P., GOLIA and BUGGS, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 23, 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.
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 proof raised a presumption that its no-show denials were timely mailed, and the provider raised no triable issue on their timeliness.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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
Held the insurer's proof, contrary to the provider's contentions, raised a presumption of timely mailing of the EUO letters and denials, and the provider raised no triable issue on timeliness of the mailings.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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 initial EUO letter, mailed before the claims were received, was not subject to the 15-business-day rule triggered by the NF-2 or another provider's claim, so the defense was established.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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.
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U)) FollowedAn insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Columbus Imaging Ctr., LLC v Erie Ins. Co. of N.Y. (2022 NY Slip Op 50569(U)) FollowedAn insurer need not prove that its first IME scheduling letter was sent within 15 days of receiving an NF-2 or another provider's claim.
- City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50135(U)) FollowedA pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2.
Similar decisions
- NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim.
- Wellness Plaza Acupuncture, P.C. v Erie Ins. (2017 NY Slip Op 51729(U))The provider failed to establish its prima facie case, and the insurer failed to prove timely mailing of EUO nonappearance denials.
- Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50915(U))The insurer proved timely mailing of the disputed EUO notice and the assignor's nonappearance through counsel's affirmation and a transcript.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.
- GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U))The provider raised no triable issue on the EUO nonappearance defense where the scheduling letters offered virtual attendance.