August 12, 2022
Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))
https://www.beynensonlaw.com/case-law/hands-on-physical-therapy-care-v-nationwide-ins-2022-ny-slip-op50797u/
- Decided
- August 12, 2022
- Citation
- 2022 NY Slip Op 50797(U)
- Posture
- Summary judgment
- Outcome
- Split result
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 Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Ins., 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 (Patria Frias-Colón, J.), dated April 15, 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 modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied; as so modified, the order is affirmed, without 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 failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment.
Plaintiff argues that defendant failed to deny the claims underlying the first through fourth causes of action within 30 days of the second EUO nonappearance and that, as to all seven causes of action, defendant’s mailing affidavits did not set forth practices and procedures sufficient to demonstrate proper mailing of the EUO scheduling letters and denial of claim forms on the dates alleged.
Plaintiff correctly argues that defendant failed to establish that it timely denied the claims underlying the first through third causes of action within 30 days of the second EUO nonappearance (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). However, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the proof submitted in support of its cross motion failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denial of claim forms that were conclusory, vague, or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
With respect to the fourth through seventh causes of action, the proof submitted by defendant was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim forms had been properly mailed on the dates alleged (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Finally, with respect to the fourth cause of action, the record establishes that a letter had been mailed on March 28, 2018 scheduling an EUO for April 28, 2018. The resulting toll applied to the claim underlying the fourth cause of action, which claim defendant had received on April 6, 2018 (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11tth & 13th Jud Dists 2011]). A follow-up letter was then timely mailed on April 30, 2018, scheduling an EUO for May 25, 2018. Thus, defendant’s June 5, 2018 denial of that claim was timely (see id.; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]).
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through third causes of action are denied.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 12, 2022
Legal questions (4)
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: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer not entitled to dismissal of three claims because it failed to show it denied them within 30 days of the second EUO nonappearance, while a fourth claim's denial was timely given the tolling scheduling letters.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider failed to establish its prima facie case on the first three claims because its proof did not show the claims had not been timely denied or that timely denials were conclusory, vague or without merit.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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
Rejected the provider's challenge to the insurer's mailing affidavits, holding the proof sufficient to presume the EUO scheduling letters and denial forms were properly mailed on the dates alleged for the remaining claims.
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 (rules on the question, but another ground decided the case)
Upheld the EUO no-show defense on four claims, finding the scheduling letters properly mailed and a timely follow-up letter sent, while the other claims failed only for lack of a timely denial.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340) FollowedAn untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
- Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U))The 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
- 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.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
Similar decisions
- MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
- FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U))An insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50830(U))The insurer established timely EUO requests, the provider's nonappearance at each scheduled EUO, and timely, proper denials.
- Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))The insurer established timely EUO notices, the provider's nonappearances and timely denials, and the provider failed to rebut that showing.
- Allstate Chiropractic, P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50299(U))The insurer failed to establish timely denials because scheduling another EUO did not extend the deadline after the second nonappearance.