December 13, 2019

Crystal Acupuncture, P.C. v Travelers Ins. (2019 NY Slip Op 52055(U))

https://www.beynensonlaw.com/case-law/crystal-acupuncture-p-c-v-travelers-ins-2019-ny-slip-op-52055u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52055(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Verification requests Fee schedule EUO no-show
Legal questions: No-show: coverage defense or precludable? · Proof of mailing · No-show defense: insurer's proof · Outstanding verification and premature actions · Proving a fee schedule defense (see the maps)

Cite as

Crystal Acupuncture, P.C. v Travelers Ins., 2019 NY Slip Op 52055(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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.

The insurer established defenses based on missing verification, fee-schedule payment, and EUO nonappearance, warranting dismissal of all claims. Four claims were denied because requested verification was not supplied within 120 days under 11 NYCRR 65-3.5 (o); the provider raised no factual issue. For two other claims, the insurer established proper payment under the workers' compensation fee schedule, defeating recovery of the unpaid portions. The remaining claims were dismissed on EUO nonappearance proof that the provider failed to rebut. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Crystal Acupuncture, P.C. v Travelers Ins. (2019 NY Slip Op 52055(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Crystal Acupuncture, P.C., as Assignee of Julian Andrianov, Denis Medvedchikov, Respondent,
against
Travelers Insurance, Appellant.

Law Office of Aloy O. Ibuzor (Tricia Prettypaul of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 17, 2018, deemed from a judgment of that court entered June 5, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 17, 2018 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,977.73.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 17, 2018 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 entered April 17, 2018 granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered on June 5, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the verification requests, 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]).

With respect to the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon the claims in the amounts of $281.98, $140.99, $422.97, and $140.99, which claims defendant had denied on the [*2]ground that plaintiff had failed to provide requested verification within 120 days of the initial verification requests (see 11 NYCRR 65-3.5 [o]), defendant demonstrated, prima facie, that it had not received all of the requested verification. Plaintiff failed to raise a triable issue of fact to rebut defendant’s showing.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing the unpaid portion of claims which had sought the sums of $1,452.90 and $1,281.91, which defendant had denied on the ground that the amount sought exceeded the amount permitted by the workers’ compensation fee schedule, defendant’s proof was sufficient to establish that defendant had properly paid those claims pursuant to the workers’ compensation fee schedule. In opposition, plaintiff’s affidavit failed to raise a triable issue of fact with respect to those branches of defendant’s cross motion.

With respect to the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s remaining claims, which defendant had denied on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, defendant established that plaintiff had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise an issue of fact in response.

Accordingly, the judgment is reversed, the order entered April 17, 2018 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

Legal questions (5)

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.

No-show: coverage defense or precludable?

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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 raised a presumption that its denials of the EUO no-show claims were timely mailed, supporting dismissal of those claims.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

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.

Proof of mailing

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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 proof sufficient to raise a presumption that its verification requests, EUO scheduling letters and denial forms were timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

No-show defense: insurer's proof

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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 (rules on the question, but another ground decided the case)

Held the insurer proved timely mailing of the EUO scheduling letters and the assignor's failure to appear on both dates, and the provider raised no issue of fact.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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.

Outstanding verification and premature actions

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Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Insurer properly denied the claim because verification was not provided (120-day rule) (rules on the question, but another ground decided the case)

Upheld denials of several claims for failure to provide requested verification within 120 days because the insurer showed it never received all requested verification and the provider raised no triable issue.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 27 (this one included) are in the same category.

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule (rules on the question, but another ground decided the case)

Held the insurer's proof established that it properly paid two claims under the workers' compensation fee schedule, and the provider's affidavit raised no triable issue.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (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

Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U))The provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.

Similar decisions

Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling.
Charles Deng Acupuncture, P.C. v Travelers Ins. Co. (2020 NY Slip Op 51320(U))The insurer proved timely EUO notices and denials and the assignor's nonappearance, while the provider raised no triable issue.
Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))The provider failed to establish that its claim was untimely denied or that a timely denial was legally insufficient.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))The insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue.
Sovereigh Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50922(U))The insurer's EUO defense failed because scheduling was late for some claims and the insurer rescheduled each EUO before its date.