December 22, 2017

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

https://www.beynensonlaw.com/case-law/easy-care-acupuncture-p-c-v-21-century-advantage-ins-co-2017-ny-slip-op51879u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51879(U) · 58 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co., 58 Misc 3d 142(A), 2017 NY Slip Op 51879(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed. The Appellate Term, Second Department, found the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Active Chiropractic, P.C. v Praetorian Ins. Co. The court rejected the provider's remaining contention without identifying it or supplying further reasoning.

Reported in New York Official Reports at Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))

[*1]

Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co.

2017 NY Slip Op 51879(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1090 K C

Easy Care Acupuncture, P.C., as Assignee of Pinto Thompson, Appellant,
against
21 Century Advantage Ins. Co., Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. Law Offices of Buratti, Rothenberg & Burns (Sharon Brennan, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 5, 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 dismissing the complaint based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to demonstrate 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]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Plaintiff’s remaining contention lacks merit (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

Legal questions

A question 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

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer's proof sufficient to show the assignor failed to appear for the scheduled EUOs and found the provider's remaining contention meritless, affirming summary judgment dismissing the complaint.

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, 525 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

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.
Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U)) FollowedAn out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.
T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50402(U))The provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal.

Similar decisions

Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))The insurer established timely mailing of EUO scheduling letters and nonappearance at the scheduled EUOs for the six claims on appeal.
Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
Easy Care Acupuncture P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51524(U))An insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1.
Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.