May 10, 2019
Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50760(U))
https://www.beynensonlaw.com/case-law/olegs-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2019-ny-slip-op50760u/
- Decided
- May 10, 2019
- Citation
- 2019 NY Slip Op 50760(U)
- 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 Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 50760(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Gary Tsirelman, P.C. (David M. Gottlieb of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered May 31, 2016. 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). By order entered May 31, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were plaintiff’s prima facie case and whether plaintiff had failed to appear for the EUOs “due to a discrepancy as to the person stated in the EUO request letters to report to at the EUO, and the person signing the affirmation alleging he was assigned and stating that plaintiff failed to appear.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d [*2]143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; 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]). A review of the record establishes that the Civil Court correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. As a result, the Civil Court should have granted defendant’s motion for summary judgment. We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 10, 2019
Legal questions (2)
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 scheduling letters and the provider's nonappearance, and that a different law-firm contact named in the scheduling letter than the attorney affirming nonappearance raised no triable issue.
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. One decision in other departments that cites or is cited by this one is on the full map.
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)
Applied the rule that the insurer must show it timely denied the claims and agreed the record established timely and proper mailing of the denial of claim forms, so the EUO no-show defense warranted summary judgment.
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. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U))The 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.
- Avamed Supply Inc v GEICO (2024 NY Slip Op 50688(U)) FollowedThe insurer's EUO defense failed because its second scheduling letter was mailed 15 days after the provider's first nonappearance.
- Kim v State Farm Ins. Co. (2024 NY Slip Op 51364(U)) FollowedThe insurer's EUO letters failed to give a specific objective justification tied to the claim, defeating summary judgment for nonappearance.
- New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) FollowedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))EUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
Similar decisions
- Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U))The insurer's transfer of claims between its offices did not raise a triable issue defeating summary judgment for EUO nonappearance.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 51041(U))The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue.