August 2, 2019
Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))
https://www.beynensonlaw.com/case-law/ocean-one-physical-therapy-p-c-v-21st-century-centennial-ins-co-2019-ny-slipop-51272u/
- Decided
- August 2, 2019
- Citation
- 2019 NY Slip Op 51272(U) · 64 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))
| Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. |
| 2019 NY Slip Op 51272(U) [64 Misc 3d 143(A)] |
| Decided on August 2, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1778 K C
against
21st Century Centennial Insurance Company, Respondent.
Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered July 7, 2017. 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 affirmed, with $25 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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.
Plaintiff’s contention that defendant failed to establish that its time to pay or deny the claims at issue were tolled lacks merit. While plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “D” were delay letters which failed to toll defendant’s time to pay or deny the claims, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]). Plaintiff’s remaining contention is not properly before this court, as the argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.
Accordingly, the order is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019
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.
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
Rejected the provider's argument that the time to deny was not tolled, holding that although the delay letters did not toll it, the EUO scheduling letters did.
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)
Accepted copies of EUO scheduling letters mailed by the insurer's law firm as sufficient where the provider raised no issue with them.
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 (rules on the question, but another ground decided the case)
Affirmed dismissal on the EUO no-show defense, holding the EUO scheduling letters sufficient where the provider raised no issue with them.
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.
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.
- Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied.
Similar decisions
- NL Quality Med., P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51269(U))The insurer's summary judgment dismissal based on the assignor's failure to appear for duly scheduled EUOs was affirmed.
- Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
- Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
- A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U))The insurer was precluded from asserting an EUO nonappearance defense because it failed to send the provider a required delay letter.
- Compas Med., P.C. v American Tr. Ins. Co. (2019 NY Slip Op 51257(U))The insurer established timely mailing of the EUO scheduling letters and the assignor's failure to appear.