November 13, 2020
Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U))
https://www.beynensonlaw.com/case-law/island-life-chiropractic-pain-care-pllc-v-ameriprise-ins-2020-ny-slip-op51369u/
- Decided
- November 13, 2020
- Citation
- 2020 NY Slip Op 51369(U) · 69 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- EUO no-show
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 Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. (2020 NY Slip Op 51369(U))
| Island Life Chiropractic Pain Care, PLLC v Ameriprise Ins. |
| 2020 NY Slip Op 51369(U) [69 Misc 3d 143(A)] |
| Decided on November 13, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2321 K C
against
Ameriprise Insurance, Appellant.
Bruno, Gerbino, Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered July 23, 2018. 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 reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.
Defendant established that initial and follow-up letters scheduling an examination under oath had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020
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 established timely mailing of initial and follow-up EUO scheduling letters and the assignor's failure to appear on either date, and plaintiff raised no triable issue.
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 that the claims were timely denied on the EUO no-show ground as part of its entitlement to dismissal.
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 established that the initial and follow-up EUO scheduling letters were timely mailed and that the claims were timely denied.
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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Cited by
A label shows how the later decision treated this one.
- Glispy v Ameriprise Ins. Co. (2023 NY Slip Op 50338(U)) FollowedThe insurer's attorney affidavits and recorded statements established timely EUO notice mailing and the assignor's nonappearance.
Similar decisions
- Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U))The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted on appeal.
- Island Life Chiropractic, P.C. v National Liab. & Fire Ins. Co. (2017 NY Slip Op 51843(U))The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment.
- Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2020 NY Slip Op 51359(U))The provider's challenges to the insurer's summary judgment motion were unpreserved because they were raised for the first time on appeal.
- Island Life Chiropractic, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51824(U))The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless.
- Island Life Chiropractic, P.C. v Travelers Ins. Co. (2016 NY Slip Op 51413(U))The provider's mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature.