December 22, 2017
Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))
https://www.beynensonlaw.com/case-law/canon-chiropractic-p-c-v-metlife-ins-co-2017-ny-slip-op-51875u/
- Decided
- December 22, 2017
- Citation
- 2017 NY Slip Op 51875(U) · 58 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))
| Canon Chiropractic, P.C. v Metlife Ins. Co. |
| 2017 NY Slip Op 51875(U) [58 Misc 3d 141(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| This opinion is uncorrected and will not be published in the printed Official Reports.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
2015-1014 K C
against
Metlife Ins. Co., Respondent.
Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 19, 2014. The order granted 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 denied.
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 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).
Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the nonappearance by someone with personal knowledge
Held the insurer's motion should have been denied because it submitted no proof from anyone with personal knowledge of the assignor's nonappearance at the scheduled EUOs.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (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.
- Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
- Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Similar decisions
- Canon Chiropractic, P.C. v Travelers Prop. Cas. Co. of Am. (2017 NY Slip Op 51826(U))The insurer's summary judgment dismissal for IME nonappearances was reversed because mailing to the correct address was not established.
- 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.
- AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))The insurer established proper mailing of its denial forms and the assignor's failure to appear for EUOs. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits on the EUO nonappearance defense.
- BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground.
- July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))The insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts.