May 6, 2022

Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y. (2022 NY Slip Op 50366(U))

https://www.beynensonlaw.com/case-law/psychology-after-acc-p-c-v-nationwide-ins-co-of-n-y-2022-ny-slip-op50366u/

Court: Appellate Term, Second Department
Decided: May 6, 2022
Citation: 2022 NY Slip Op 50366(U)
Posture: Summary judgment
Outcome: Split result
Issues: EUO no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions (see the maps)

Cite as

Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y., 2022 NY Slip Op 50366(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 failed to prove timely denials after two missed EUOs, while the provider also failed to establish entitlement to summary judgment. Following Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., the Appellate Term, Second Department, held that the insurer had not shown it was free from preclusion of its EUO defense, so denial of its dismissal motion was proper. The provider's proof established neither that the claims were untimely denied nor that timely denials were conclusory, vague, or legally meritless. The court modified the order to deny the provider's cross motion and otherwise affirmed, leaving both sides without summary judgment.

Reported in New York Official Reports at Psychology After Acc., P.C. v Nationwide Ins. Co. of N.Y. (2022 NY Slip Op 50366(U))

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

Psychology After Accident, P.C., as Assignee of Timothy Jenkins Simmons, Bianca Lawrence, Yolanda Drouillard, Maria Gonzalez and Mercedes Gonzalez, Respondent,
against
Nationwide Insurance Company of New York, Appellant.

Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, Esq., P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered February 18, 2020. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

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

Contrary to defendant’s contention, defendant failed to establish that it had timely denied plaintiff’s claims after plaintiff failed to appear at two duly scheduled EUOs (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]). As defendant did not demonstrate that it was not precluded from raising its proffered defense (see [*2]Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied.

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the proof submitted in support of its cross motion failed to establish either that the claims at issue had not been timely denied 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]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 6, 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?

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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 failed to establish it timely denied the claims after the provider's second EUO nonappearance, so it did not show it was not precluded from the no-show defense.

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, 162 (this one included) are in the same category.

Claimant's prima facie case on motions

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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's cross-motion proof failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit, so its cross motion was denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

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)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
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.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe 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)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

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.
MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))The insurer failed to establish timely denial after the provider's second EUO nonappearance or raise a triable issue on that defense.
Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action.
JPF Med. Servs., P.C. v Nationwide Ins. (2020 NY Slip Op 51122(U))The insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation.
Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U))The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518.