August 28, 2020
NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))
https://www.beynensonlaw.com/case-law/nl-quality-med-p-c-v-geico-ins-co-2020-ny-slip-op-50997u/
- Decided
- August 28, 2020
- Citation
- 2020 NY Slip Op 50997(U) · 68 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 4 later decisions (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 NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))
| NL Quality Med., P.C. v GEICO Ins. Co. |
| 2020 NY Slip Op 50997(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-2004 K C
against
GEICO Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman 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 (Michael Gerstein, J.), entered September 5, 2018. The order, insofar as appealed from, 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 had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the Civil Court as denied defendant’s motion.
The affidavit submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office 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, who was present in her office to conduct the EUO of plaintiff on the scheduled dates, was sufficient to establish that plaintiff had failed to appear on those dates. As a result, defendant demonstrated its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 63 Misc 3d 152[A], 2019 NY Slip Op 50759[A] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 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 the EUO letters, and the affirmation of its attorney, present in her office on the scheduled dates, established the provider's nonappearance; no triable issue was raised.
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.
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)
Found the insurer established timely mailing of its denials as part of its prima facie EUO no-show defense under the two-demands, two-nonappearances, timely-denial formula.
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.
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 affidavit established that the EUO scheduling letters and the denial forms were timely mailed under its standard office practices and procedures.
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.
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) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50759(U)) FollowedAn insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
- Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U)) FollowedThe provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.
Cited by
A label shows how the later decision treated this one.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
- SVP Med Supply, Inc. (B) v GEICO (2022 NY Slip Op 50585(U)) FollowedThe insurer's submissions established timely mailing of EUO notices and denials and the provider's failure to appear for scheduled EUOs. An affidavit described the insurer's standard office practices and procedures for mailing the scheduling letters and denial forms.
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U)) FollowedThe 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.
- Warton Supplies, Inc. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50554(U)) FollowedThe insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs, supporting summary judgment.
- Nassau Chiropractic Servs., P.C. v Travelers Indem. Co. (2022 NY Slip Op 50933(U))The insurer established timely mailing of EUO notices and the denial, and the provider's failure to appear for the EUOs. Office-practice affidavits proved mailing, and affirmations from attorneys present to conduct the EUOs established the nonappearances.
- 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.
Similar decisions
- New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
- 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.
- 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.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50744(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.