July 21, 2017

Apple Massage Therapy, P.C. v Adirondack Ins. Exch. (2017 NY Slip Op 50935(U))

https://www.beynensonlaw.com/case-law/apple-massage-therapy-p-c-v-adirondack-ins-exch-2017-ny-slip-op50935u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50935(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Apple Massage Therapy, P.C. v Adirondack Ins. Exch., 2017 NY Slip Op 50935(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.

An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear. The insurer sought summary judgment based on the assignor's EUO nonappearance, alternatively seeking dismissal of amounts exceeding the workers' compensation fee schedule. Its affidavit showed that the initial EUO had been rescheduled twice by mutual agreement before the scheduled dates. Following Vitality Chiropractic, P.C. v Kemper Ins. Co., the Appellate Term, Second Department, concluded that the insurer had not established nonappearance at both an initial and a follow-up EUO or breach of a coverage condition. It reversed, denied the EUO branch, and remitted for determination of the unresolved fee-schedule branch.

Reported in New York Official Reports at Apple Massage Therapy, P.C. v Adirondack Ins. Exch. (2017 NY Slip Op 50935(U))

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

Apple Massage Therapy, P.C., as Assignee of Jarrett Houston, Appellant,
against
Adirondack Insurance Exchange, Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. McDonnell & Adels, PLLC (Stephanie A. Tebbett, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 16, 2012. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.

ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). In the alternative, defendant, in effect, sought summary judgment dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule. By order entered March 16, 2012, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at the EUOs.

According to the affidavit submitted by defendant in support of its motion, the initial EUO had been rescheduled two times by mutual agreement, each time prior to the scheduled date. We do not consider a mutual rescheduling, which occurs prior to the date of a scheduled [*2]EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Consequently, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not establish as a matter of law that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As a result, the branch of defendant’s motion seeking summary judgment dismissing the complaint based upon the assignor’s failure to appear at two duly scheduled EUOs should have been denied.

Since the Civil Court did not determine the branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule, the matter is remitted to the Civil Court for a determination of that branch of defendant’s motion.

Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the remaining branch of defendant’s motion seeking summary judgment, in effect, dismissing so much of the complaint as sought to recover in excess of the amount permitted by the workers’ compensation fee schedule.

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

Decision Date: July 21, 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: Claimant showed the nonappearance was excused or the request unreasonable or waived

Held that the initial EUO had twice been rescheduled by mutual agreement before its date, which is not a failure to appear, so the insurer did not show nonappearance at both an initial and a follow-up EUO.

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

Cited in this decision

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

Vitality Chiropractic, P.C. v Kemper Ins. Co. (2006 NY Slip Op 26536) FollowedPreclaim IME requests do not toll the denial period, and mutually agreed rescheduling of initial IMEs is not a follow-up request.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U))Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.

Cited by

A label shows how the later decision treated this one.

Kings County Physicians Group v Nationwide Ins. Co. (2021 NY Slip Op 50337(U)) FollowedThe assignor's attendance at one EUO did not cure the failure to appear for two scheduled continued EUOs. The Civil Court, Queens County, granted the insurer summary judgment dismissing the provider's complaint.

Similar decisions

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.
City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U))The assignor's appearance at an EUO did not defeat the insurer's motion because the parties mutually agreed to reschedule it.
Integrative Pain Medicine, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51525(U))An assignor may not cure an EUO nonappearance after an insurer establishes a timely and proper denial on that ground.
Focus Chiropractic, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 51006(U))The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue.
Sufficient Chiropractic Care, P.C. v Global Liberty Ins. Co. (2021 NY Slip Op 50959(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability on the policy.