July 1, 2022
Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U))
https://www.beynensonlaw.com/case-law/clear-water-psychological-servs-p-c-v-mid-century-ins-co-2022-ny-slip-op50621u/
- Decided
- July 1, 2022
- Citation
- 2022 NY Slip Op 50621(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? (see the maps)
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 Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Mid-Century Ins. Co., Appellant.
Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sandra E. Roper, J.), dated March 19, 2021. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.
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, defendant moved to amend the caption and for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing the complaint.
Defendant scheduled EUOs after receipt of the claims at issue here. To establish its prima facie entitlement to summary judgment dismissing the complaint, defendant had to demonstrate, as a matter of law, that it twice duly demanded an EUO, that the assignor twice failed to appear, and that defendant issued a timely denial as to each claim after the second failure to appear (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Quality Health [*2]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]).
In its motion, defendant set forth three scheduled EUO dates: June 8, 2018, June 25, 2018 and July 10, 2018. Defendant’s motion papers assert that the June 8, 2018 EUO was mutually rescheduled, which, if such rescheduling “occur[red] prior to the date of the scheduled EUO, does not constitute a failure to appear” (Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). However, defendant failed to demonstrate that fact as a matter of law (cf. Sovereign Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 132[A], 2017 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Indeed, defendant’s denial of claim forms list all three dates as failures to appear. As defendant denied the claims on July 27, 2018, more than 30 days after June 25, 2018, the second scheduled EUO date (see 11 NYCRR 65-3.8 [c]), and as defendant did not establish that the first EUO had been mutually rescheduled, an issue of fact remains as to whether defendant’s denials were timely and, thus, whether defendant is precluded from interposing its defense that plaintiff’s assignor failed to appear for duly scheduled EUOs (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).
Accordingly, the order, insofar as appealed from, is affirmed.
WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 1, 2022
Legal questions
A question 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 a triable issue whether the denials were timely, since they issued more than 30 days after the second scheduled EUO and the insurer did not prove the first was mutually rescheduled, so preclusion was unresolved.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
- Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U)) FollowedAn EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.
- Sovereigh Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50922(U)) Contrasted (cf., but see)The insurer's EUO defense failed because scheduling was late for some claims and the insurer rescheduled each EUO before its date.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Cited by
- 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.
Similar decisions
- Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))An insurer may timely schedule more than two EUOs and deny a claim within the required period after the last scheduled EUO. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
- Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))The insurer failed to establish that EUO scheduling letters were mailed before the scheduled EUO dates, defeating summary judgment.
- July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))The insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts.