May 14, 2021
BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))
https://www.beynensonlaw.com/case-law/bne-clinton-med-p-c-v-republic-w-ins-co-2021-ny-slip-op50433u/
- Decided
- May 14, 2021
- Citation
- 2021 NY Slip Op 50433(U)
- 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 BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Republic Western Ins. Co., Appellant.
Bryan Cave Leighton Paisner, LLP (Amanda C. Scuder and Matthew A. Sarles 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 (Lorna J. McAllister, J.), entered August 2, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
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 grounds that defendant had previously paid four of the claims involved in this action and that the remaining six claims were denied because plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
The affidavit of defendant’s claims manager established that defendant had previously paid four of the claims sought to be recovered in the complaint. In opposition, plaintiff did not oppose the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those four claims and, on appeal, plaintiff concedes that the branch of defendant’s motion seeking summary judgment dismissing those claims should be granted.
As to the remaining six claims, the affidavit submitted by defendant established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office [*2]practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In addition, the affirmation submitted by defendant’s attorney was sufficient to establish that the EUO scheduling letters had been timely mailed (see id.) and, since she was present in her office to conduct the EUO of plaintiff on the scheduled dates, that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement upon the branch of defendant’s motion seeking summary judgment dismissing those six claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; NL Quality Med., P.C. v GEICO Ins. Co., 68 Misc 3d 131[A], 2020 NY Slip Op 50997[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; Big Apple Med. Supply, Inc. v Titan & Nationwide, 66 Misc 3d 131[A], 2019 NY Slip Op 52067[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Plaintiff failed to raise a triable issue of fact in opposition to this branch of defendant’s motion.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 14, 2021
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 letters and, through the attorney present to conduct the EUOs, the provider's nonappearance, and no triable issue was raised.
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 timely mailing of the denials of the six claims denied on the EUO no-show ground as part of its prima facie case.
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 office-practice affidavit established timely mailing of the denials and its attorney's affirmation established timely mailing of the EUO scheduling letters.
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.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- 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.
- Big Apple Med. Supply, Inc. v Titan & Nationwide (2019 NY Slip Op 52067(U))An insurer establishes an EUO nonappearance defense by showing two duly demanded EUOs, two assignor nonappearances, and a timely denial.
Similar decisions
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
- BNE Clinton Med., P.C. v State Farm Mut. Auto Ins. Co. (2021 NY Slip Op 50083(U))An insurer seeking summary judgment for EUO nonappearance need not prove timely mailing of prescribed forms upon learning of the accident.
- NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U))The insurer proved EUO nonappearance and a policy deductible on four causes of action, but its fee-schedule proof failed on the second.
- Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))EUO scheduling letters identifying the accident date and assignor need not specify the bills to which they pertain.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50960(U))The insurer's litigation examiner affidavit established timely mailing of the denials based on the assignor's IME nonappearance.