December 12, 2017

Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U))

https://www.beynensonlaw.com/case-law/sama-physical-therapy-p-c-v-ids-prop-cas-ins-co-2017-ny-slip-op51751u/

Court: Appellate Term, Second Department
Decided: December 12, 2017
Citation: 2017 NY Slip Op 51751(U) · 58 Misc 3d 130(A)
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

Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co., 58 Misc 3d 130(A), 2017 NY Slip Op 51751(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 failed to establish timely EUO scheduling for the first two claims but timely denied the third claim for nonappearance. The first EUO letter was sent more than 30 days after receipt of the claims underlying the first and second causes of action, defeating summary judgment on the EUO defense as to those claims. For the third cause of action, the letter was mailed more than 15 business days after receipt, but the denial remained timely under 11 NYCRR 65-3.8 (l), which reduces the payment or denial period by the verification request's lateness. The Appellate Term, Second Department, modified the order to deny dismissal of the first two causes of action and affirmed dismissal of the third.

Reported in New York Official Reports at Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U))

[*1]

Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co.

2017 NY Slip Op 51751(U) [58 Misc 3d 130(A)]

Decided on December 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 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
2014-2773 Q C

Sama Physical Therapy, P.C., as Assignee of Solis, Gregorio, Appellant,
against
IDS Property Casualty Insurance Company, Respondent.

The Rybak Firm, PLLC (Joseph D. DePalma, 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, Queens County (Larry Love, J.), entered November 6, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 6, 2014, the Civil Court granted defendant’s motion.

Defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff was timely with respect to the claims underlying the first and second causes of action, as defendant stated that the letter had been sent more than 30 days after [*2]defendant had received those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant failed to demonstrate that it had properly and timely denied those claims based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

However, although the first EUO scheduling letter was mailed more than 15 business days after the claim underlying the third cause of action had been received, the NF-10 denying this claim was nevertheless timely (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 12, 2017

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

Held the insurer failed to show it properly and timely denied two claims on the EUO no-show ground because its first scheduling letter went out more than 30 days after receipt; the third claim's denial remained timely under 65-3.8 (l).

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

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 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 defense unproved for two claims because the insurer's own papers showed its first EUO scheduling letter was sent more than 30 days after it received those claims.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

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

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
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

Sama Physical Therapy, P.C. v Global Liberty Ins. (2017 NY Slip Op 51736(U))The insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims.
Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51186(U))The insurer's proof supported a presumption that the IME scheduling letters and denial forms had been properly mailed.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co. (2019 NY Slip Op 51148(U))The insurer's first-class EUO notices sufficed despite the disputed proof of certified mailing of the follow-up notice.
Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.