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May 3, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50678(U))

https://www.beynensonlaw.com/case-law/gentlecare-ambulatory-anesthesia-servs-v-geico-ins-co-2019-ny-slip-op50678u/

Court
Appellate Term, Second Department
Decided
May 3, 2019
Citation
2019 NY Slip Op 50678(U)
Posture
Summary judgment
Outcome
Split result
Issues
EUO no-show Timeliness and preclusion
Legal questions
No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)
Cite as
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 50678(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 failed to establish timely mailing of the follow-up EUO notice for the first cause of action. To obtain summary judgment on a provider's EUO nonappearance, an insurer must show two duly demanded EUOs, two failures to appear, and a timely denial. The insurer satisfied those requirements for the second cause of action, but the record did not establish compliance with 11 NYCRR 65-3.6 (b) for the first. It therefore failed to show that its defense to the first claim was not precluded. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the second cause of action and affirmed denial of dismissal of the first.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50678(U))

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

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Perez, Dionicio, Respondent,

against

GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff 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 (Steven Z. Mostofsky, J.), entered September 30, 2016. The order, insofar as appealed from, denied defendant’s motion seeking summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion for 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 examination under oath (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 claim (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & [*2]Home, 54 Misc 3d 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]). While defendant made such a showing regarding the second cause of action, as to the first cause of action, the record does not establish that the follow-up letter scheduling the second EUO was timely sent (see 11 NYCRR 65-3.6 [b]; Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). As a result, defendant did not demonstrate that it is not precluded from interposing its proffered defense with respect to the first cause of action. Consequently, defendant is not entitled to summary judgment dismissing the first cause of action.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the second cause of action is granted.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 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.

No-show: coverage defense or precludable?

Open 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: No-show defense is subject to preclusion and fails for want of a timely, proper denial (rules on the question, but another ground decided the case)

Held that, because the follow-up EUO letter for the first cause of action was not shown timely sent, the insurer did not demonstrate it was not precluded from its no-show defense on that claim, while it established the elements including timely denial on the second.

  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 447
  • Trial courtsTrial 46
2023, Appellate Division: 1 decision (1 Precludable: denial timely)2022, Appellate Division: 1 decision (1 Precludable: denial lacking)2020, Appellate Division: 1 decision (1 Precludable: denial timely)2015, Appellate Division: 1 decision (1 Precludable: denial lacking)2014, Appellate Division: 2 decisions (2 Precludable: denial timely)2009, Appellate Division: 1 decision (1 Precludable: denial lacking)2023, Appellate Term: 4 decisions (1 Precludable: denial lacking, 3 Precludable: denial timely)2022, Appellate Term: 32 decisions (12 Precludable: denial lacking, 20 Precludable: denial timely)2021, Appellate Term: 12 decisions (4 Precludable: denial lacking, 8 Precludable: denial timely)2020, Appellate Term: 25 decisions (4 Precludable: denial lacking, 21 Precludable: denial timely)2019, Appellate Term: 38 decisions (5 Precludable: denial lacking, 33 Precludable: denial timely)2018, Appellate Term: 31 decisions (11 Precludable: denial lacking, 20 Precludable: denial timely)2017, Appellate Term: 49 decisions (12 Precludable: denial lacking, 37 Precludable: denial timely)2016, Appellate Term: 35 decisions (15 Precludable: denial lacking, 20 Precludable: denial timely)2015, Appellate Term: 45 decisions (5 Precludable: denial lacking, 40 Precludable: denial timely)2014, Appellate Term: 33 decisions (13 Precludable: denial lacking, 20 Precludable: denial timely)2013, Appellate Term: 30 decisions (6 Precludable: denial lacking, 24 Precludable: denial timely)2012, Appellate Term: 41 decisions (15 Precludable: denial lacking, 26 Precludable: denial timely)2011, Appellate Term: 24 decisions (5 Precludable: denial lacking, 19 Precludable: denial timely)2010, Appellate Term: 8 decisions (5 Precludable: denial lacking, 3 Precludable: denial timely)2009, Appellate Term: 3 decisions (3 Precludable: denial lacking)2007, Appellate Term: 2 decisions (2 Precludable: denial lacking)2006, Appellate Term: 8 decisions (7 Precludable: denial lacking, 1 Precludable: denial timely)2005, Appellate Term: 10 decisions (9 Precludable: denial lacking, 1 Precludable: denial timely)2004, Appellate Term: 4 decisions (4 Precludable: denial lacking)2024, Appellate Term: 5 decisions (1 Precludable: denial lacking, 4 Precludable: denial timely)2025, Appellate Term: 5 decisions (2 Precludable: denial lacking, 3 Precludable: denial timely)2026, Appellate Term: 2 decisions (2 Precludable: denial timely)2003, Appellate Term: 1 decision (1 Precludable: denial lacking)2023, Trial courts: 1 decision (1 Precludable: denial timely)2022, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2021, Trial courts: 8 decisions (2 Precludable: denial lacking, 6 Precludable: denial timely)2020, Trial courts: 2 decisions (1 Precludable: denial lacking, 1 Precludable: denial timely)2019, Trial courts: 5 decisions (5 Precludable: denial lacking)2018, Trial courts: 1 decision (1 Precludable: denial timely)2017, Trial courts: 2 decisions (2 Precludable: denial timely)2016, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2014, Trial courts: 3 decisions (3 Precludable: denial timely)2013, Trial courts: 3 decisions (2 Coverage defense, 1 Precludable: denial timely)2012, Trial courts: 1 decision (1 Precludable: denial timely)2011, Trial courts: 2 decisions (2 Coverage defense)2009, Trial courts: 2 decisions (2 Precludable: denial timely)2008, Trial courts: 1 decision (1 Precludable: denial lacking)2006, Trial courts: 1 decision (1 Precludable: denial lacking)2005, Trial courts: 1 decision (1 Precludable: denial lacking)2004, Trial courts: 3 decisions (3 Precludable: denial lacking)2025, Trial courts: 2 decisions (2 Precludable: denial timely)2026, Trial courts: 1 decision (1 Precludable: denial timely)2015, Trial courts: 1 decision (1 Precludable: denial lacking)This decision
20052010201520202025
Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

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 the insurer established the EUO no-show elements for the second cause of action but not the first, because the record did not show the follow-up letter scheduling the second EUO was timely sent under 11 NYCRR 65-3.6 (b).

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 753
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 68 decisions (52 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 86 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 74 decisions (34 Defense proved, 14 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 19 decisions (1 Defense proved, 8 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

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.

  • Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe 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)) FollowedThe provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.
  • Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50382(U)) FollowedThe insurer's untimely follow-up EUO requests and late denials precluded its EUO nonappearance defense to the provider's first six claims.

Similar decisions

  • Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))The insurer's proof established presumptively timely mailing of EUO notices and the denial, as well as the provider's nonappearances.
  • Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51773(U))An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance.
  • Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
  • Gentlecare Ambulatory Anesthesia Servs. v American Tr. Ins. Co. (2018 NY Slip Op 50770(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted.
  • Gentlecare Ambulatory Anesthesia Servs. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51152(U))The insurer's summary judgment dismissal for EUO nonappearance was affirmed after the provider's mailing challenges were rejected.
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