November 6, 2020
NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U))
https://www.beynensonlaw.com/case-law/nl-quality-med-p-c-v-geico-ins-co-2020-ny-slip-op-51340u/
- Decided
- November 6, 2020
- Citation
- 2020 NY Slip Op 51340(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 NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered September 5, 2018. 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 branch of defendant’s motion seeking summary judgment dismissing the second cause of action 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Contrary to plaintiff’s contentions, with respect to the branch of defendant’s motion seeking summary judgment dismissing the third through fifth causes of action, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Thus, defendant demonstrated, prima facie, that plaintiff had failed to comply with a condition precedent to coverage with respect to the third though fifth causes of action (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). In addition, defendant demonstrated its prima facie entitlement to [*2]judgment dismissing the first cause of action on the ground that the automobile insurance policy in question had a $200 personal injury protection deductible. As plaintiff failed to raise a triable issue of fact in opposition to these branches of defendant’s motion, we find no basis to disturb the Civil Court’s determination that defendant was entitled to summary judgment upon the first and third through fifth causes of action.
With respect to the second cause of action, defendant failed to establish, as a matter of law, its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]), because, among other things, defendant attempted to rely on certain documents which were attached to defendant’s motion papers without authentication, foundation or even discussion (see Liberty Chiropractic, P.C. v 21st Century Ins. Co., 53 Misc 3d 133[A], 2016 NY Slip Op 51409[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). However, contrary to plaintiff’s contention, an issue of fact exists as to whether plaintiff is entitled to recover any additional reimbursement with respect to these services; therefore, the branch of plaintiff’s cross motion seeking summary judgment upon the second cause of action was properly denied.
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020
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.
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
Held the insurer's proof sufficient, over the provider's contentions, to raise a presumption that the EUO scheduling letters and denial forms were timely mailed.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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
Held the insurer established timely mailing of the EUO scheduling letters and the provider's failure to appear, and the provider raised no triable issue, so three causes of action were dismissed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial
Held the insurer failed to establish its fee schedule defense because it relied on unauthenticated, unexplained documents, while an issue of fact remained whether further reimbursement was due.
Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (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's proof established timely mailing of its denials along with the EUO letters and nonappearance, supporting the no-show defense on three causes of action.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50864(U)) FollowedAn insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for EUO nonappearance.
- Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
- Liberty Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51409(U)) FollowedThe insurer failed to establish the correct fee-schedule conversion factor or exhaustion of the daily physical medicine unit limit.
Similar decisions
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50678(U))The insurer failed to establish timely mailing of the follow-up EUO notice for the first cause of action.
- K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
- BNE Clinton Med., P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50433(U))The insurer established prior payment of four claims and the provider's failure to attend duly scheduled EUOs for the remaining six claims.
- EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2020 NY Slip Op 51331(U))The insurer proved its IME nonappearance defense to one claim but failed to establish timely EUO denials for the remaining claims.
- Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51773(U))An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance.