October 2, 2020
Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))
https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-nationwide-ins-2020-ny-slip-op-51133u/
- Decided
- October 2, 2020
- Citation
- 2020 NY Slip Op 51133(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Ins., Appellant.
Hollander Legal Group , P.C. (Allan S. Hollander 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 (Richard J. Montelione, J.), entered November 13, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. As limited by the brief, defendant appeals from so much of an order of the Civil Court entered November 13, 2018 as denied defendant’s motion.
We find that defendant established that the EUO scheduling letters 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 for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]), and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [2011]). Plaintiff failed to raise a triable issue of fact in opposition. Contrary to the Civil Court’s determination, “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C., 35 AD3d at 721; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, although the first EUO scheduling letter was mailed to the assignor before defendant received plaintiff’s first claim form, the scheduling letter was not a nullity (id.).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 2, 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 proved timely mailing of EUO letters and the assignor's nonappearance, and that an EUO letter mailed before the first claim form was received was not a nullity because appearance is required either way.
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 EUO scheduling letters were timely mailed and the claims 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.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U)) FollowedThe insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.
Cited by
A label shows how the later decision treated this one.
- Island Life Chiropractic Pain Care, PLLC v Nationwide Ins. (2021 NY Slip Op 50436(U)) FollowedThe insurer's summary judgment motion to dismiss the complaint for the assignor's failure to attend duly scheduled EUOs was granted on appeal.
- 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.
- Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form.
Similar decisions
- AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50558(U))The insurer established timely mailing of EUO scheduling letters and the assignor's failure to appear, warranting dismissal.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.
- Longevity Med. Supply, Inc. v Geico Ins. Co. (2015 NY Slip Op 50392(U))The insurer's affidavits established that the assignor failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss.
- NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
- LPM Pharm., Inc. v Nationwide Prop. & Cas. Ins. Co. (2024 NY Slip Op 51191(U))The no-fault regulations do not require EUO notices to be provided in writing.