July 21, 2017
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))
https://www.beynensonlaw.com/case-law/acupuncture-healthcare-plaza-i-p-c-v-allstate-ins-co-2017-ny-slip-op50939u/
- Decided
- July 21, 2017
- Citation
- 2017 NY Slip Op 50939(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Ins. Co., Respondent.
Korsunskiy Legal Group, P.C. (Michael Hoenig, 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 (Katherine A. Levine, J.), entered January 17, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees.
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 plaintiff’s assignor had failed to appear for scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. By order entered January 17, 2014, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.
In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]). Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely. Consequently, defendant is precluded from raising its proferred defense and, thus, defendant’s motion for summary judgment dismissing the [*2]complaint should have been denied (see 11 NYCRR 65-3.8; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).
As plaintiff’s cross motion papers established its prima facie case (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 506 [2015]), plaintiff is entitled to summary judgment.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the compliant is denied, plaintiff’s cross motion for summary judgment is granted, and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees, pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017
Legal questions (4)
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.
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 that because the follow-up EUO letter was untimely, the denial eventually sent was untimely, so the insurer was precluded from raising its EUO no-show defense.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the provider's cross-motion papers established its prima facie case, the insurer having admitted receipt of the claim, entitling it to summary judgment.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
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
Held the follow-up EUO letter was not mailed within the 65-3.6 (b) time frame, and 65-3.8 (l) does not excuse late follow-ups, so the untimely request defeated the no-show defense.
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.
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 counsel's affirmation established that the initial EUO scheduling letter was timely mailed, though the result turned on the follow-up letter's untimeliness.
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
A label shows how this decision treated the case it cites.
- 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.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Similar decisions
- Gl Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50830(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
- Mind & Body Acupuncture, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50779(U))The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule.
- IMA Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50926(U))The insurer's EUO proof lacked personal knowledge, and the provider failed to establish that the nonappearance defense lacked legal merit.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
- Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form.