May 3, 2019
BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))
https://www.beynensonlaw.com/case-law/bcc-chiropractic-p-c-v-farmers-new-century-ins-co-2019-ny-slip-op50680u/
- Decided
- May 3, 2019
- Citation
- 2019 NY Slip Op 50680(U) · 63 Misc 3d 146(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 BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))
| BC Chiropractic, P.C. v Farmers New Century Ins. Co. |
| 2019 NY Slip Op 50680(U) [63 Misc 3d 146(A)] |
| Decided on May 3, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2912 K C
against
Farmers New Century Insurance Co., Appellant.
Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for appellant. Petre and Zabokritsky, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered September 12, 2016. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order 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 appeals from an order of the Civil Court which denied defendant’s motion, which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
While the Civil Court correctly noted that defendant’s January 13, 2012 letter was a delay letter, which did not toll defendant’s time to pay or deny the claim, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]); and that the claim had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order 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 03, 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
Held the EUO no-show claim timely denied, although the insurer's delay letter did not toll its time, because the EUO scheduling letters were timely mailed and the denial on that ground timely followed.
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 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 established that initial and follow-up EUO scheduling letters were timely mailed and that the assignor failed to appear on either date, and the provider 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.
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 established timely mailing of the initial and follow-up EUO scheduling letters and of the denial of claim based on the nonappearance.
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.
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.
Similar decisions
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
- Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U))The insurer's follow-up EUO letter was untimely because it was mailed more than 10 days after the assignor's first nonappearance.
- Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51551(U))The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted on appeal.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- BLR Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51770(U))The insurer's litigation examiner established timely mailing of the denial based on the assignor's failure to attend EUOs. Civil Court denied both sides' summary judgment motions, finding that the provider established its prima facie case and that the assignor failed to attend properly scheduled EUOs, but leaving denial timeliness for trial.