August 2, 2019
Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))
https://www.beynensonlaw.com/case-law/acupuncture-now-p-c-v-travelers-ins-co-2019-ny-slip-op-51255u/
- Decided
- August 2, 2019
- Citation
- 2019 NY Slip Op 51255(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 Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Travelers Insurance Company, Appellant.
Law Office of Aloy O. Ibuzor (Gini Spiteri 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 (John J. Kelley, J.), dated November 18, 2016, deemed from a judgment of that court entered January 3, 2017 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 18, 2016 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $2,626.86.
ORDERED that the judgment is reversed, without costs, so much of the order dated November 18, 2016 as denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action and granted plaintiff’s cross motion for summary judgment is vacated, that branch of defendant’s motion is granted, and plaintiff’s cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff’s cross motion for summary judgment.
Contrary to defendant’s contention, to the extent its follow-up requests for verification upon the claims underlying the first and second causes of action also stated that an EUO of plaintiff was needed, the letters were actually delay letters because the letters do not specify the time and place the EUOs would take place (see e.g. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [*2][App Term, 2d Dept, 2d & 11th Jud Dists 2005]). As a result, defendant failed to establish that it had issued timely EUO notices with respect to the claims underlying the first and second causes of action.
As to the third cause of action, however, defendant established that proper EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that defendant’s time to pay or deny this claim was tolled (see 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]), that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that the claim was timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the third cause of action should have been granted.
Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claims underlying the first and second causes of action had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment is reversed, so much of the order dated November 18, 2016 as denied the branch of defendant’s motion seeking summary judgment dismissing the third cause of action and granted plaintiff’s cross motion for summary judgment is vacated, that branch of defendant’s motion is granted, and plaintiff’s cross motion is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)
Held the provider's cross motion should have been denied because its proof did not show the claims had not been timely denied or that timely denials were conclusory, vague or without merit.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 that, for one claim, the insurer established its EUO no-show defense including that its time was tolled and the claim was timely denied on that ground.
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 proper EUO scheduling letters were timely mailed and that the claim was timely denied, supporting dismissal of one cause of action.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements (rules on the question, but another ground decided the case)
Held follow-up letters that did not specify the EUO time and place were mere delay letters, so the insurer failed to show timely EUO notices for two claims, while it established mailing and nonappearance for the third.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2005 NY Slip Op 25456)The providers obtained partial summary judgment because defective EUO requests and incomplete IME follow-up failed to toll denial time.
- 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.
- 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.
- 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.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Similar decisions
- Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
- 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.
- 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.
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))The insurer's untimely follow-up EUO notice rendered its denial untimely and precluded the nonappearance defense.
- 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.