July 14, 2017

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50918(U))

https://www.beynensonlaw.com/case-law/mind-body-acupuncture-p-c-v-american-commerce-ins-co-2017-ny-slip-op50918u/

Court: Appellate Term, Second Department
Decided: July 14, 2017
Citation: 2017 NY Slip Op 50918(U) · 56 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co., 56 Misc 3d 131(A), 2017 NY Slip Op 50918(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 prove the provider's EUO nonappearance through a person with personal knowledge. The insurer obtained summary judgment dismissing the provider's action for assigned no-fault benefits. In opposition and on appeal, the provider challenged an affirmation from a partner in the law firm retained to conduct the EUOs. Following Alrof, Inc. v Safeco Natl. Ins. Co. and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., the Appellate Term, Second Department, found that the affirmation did not satisfy the insurer's burden of proving nonappearance through someone with personal knowledge. It reversed the order and denied the insurer's motion.

Reported in New York Official Reports at Mind & Body Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50918(U))

[*1]

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co.

2017 NY Slip Op 50918(U) [56 Misc 3d 131(A)]

Decided on July 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 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
2014-928 K C

Mind & Body Acupuncture, P.C., as Assignee of Franks, Donald, Appellant,
against
American Commerce Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 16, 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.

As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see 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]; 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]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint.

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: July 14, 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 failed to prove the nonappearance by someone with personal knowledge

Held the affirmation of a partner in the law firm retained to conduct the EUOs did not prove the provider's nonappearance by someone with personal knowledge, so the insurer's summary judgment was reversed.

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

Cited in this decision

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.

Similar decisions

Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2017 NY Slip Op 50957(U))The insurer failed to establish timely mailing of the initial and follow-up EUO scheduling letters.
Mind & Body Acupuncture, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51658(U))The insurer established timely IME and EUO notices and denials and the assignor's nonappearances, warranting dismissal.
Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
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.
Mind & Body Acupuncture, P.C. v Infinity Prop. & Cas. Co. (2017 NY Slip Op 50396(U))The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted on appeal.