November 30, 2018

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))

https://www.beynensonlaw.com/case-law/oriental-health-acupuncture-p-c-v-21st-century-ins-co-2018-ny-slip-op-51761u/

Court: Appellate Term, Second Department
Decided: November 30, 2018
Citation: 2018 NY Slip Op 51761(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Verification requests
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co., 2018 NY Slip Op 51761(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance. The provider correctly argued that the delay letters did not toll the insurer's time to pay or deny its assigned no-fault claims. The motion also included EUO scheduling letters mailed by the law firm retained to conduct the assignor's EUOs, however, and the provider raised no issue concerning their sufficiency. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and rejected the provider's remaining contention.

Reported in New York Official Reports at Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))

[*1]

Oriental Health Acupuncture, P.C. v 21st Century Ins. Co.

2018 NY Slip Op 51761(U)

Decided on November 30, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-268 Q C

Oriental Health Acupuncture, P.C., as Assignee of Davis, Christina, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 22, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

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 on the ground that plaintiff’s assignor had failed to appear for examinations under oath (EUOs).

Plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “C” were delay letters which failed to toll defendant’s time to pay or deny the claims. However, 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 & 13th Jud Dists 2014]).

In view of the foregoing, and since plaintiff’s remaining contention lacks merit, plaintiff has provided no basis upon which to reverse the order.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 30, 2018

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 defense: insurer's proof

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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 no-show defense stood because the insurer submitted EUO scheduling letters mailed by its law firm whose sufficiency the provider did not challenge, although other letters were only delay letters.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

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.

Proof of mailing

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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 EUO scheduling letters mailed by the insurer's retained law firm supported the defense because the provider raised no issue as to their sufficiency, even though other letters were delay letters that did not toll.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The 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

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.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))The insurer's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed.
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.
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.
Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.