April 27, 2017

First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50593(U))

https://www.beynensonlaw.com/case-law/first-class-med-p-c-v-state-farm-mut-auto-ins-co-2017-ny-slip-op50593u/

Court: Appellate Term, Second Department
Decided: April 27, 2017
Citation: 2017 NY Slip Op 50593(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

First Class Med., P.C. v State Farm Mut. Auto. Ins. Co., 2017 NY Slip Op 50593(U) (App Term, 2d Dept, 9th & 10th 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 established two EUO nonappearances and timely denials, warranting dismissal with prejudice rather than dismissal as premature. The provider failed to prove mailing of its objection letters, and its principal's prior EUO concerned claims received before those underlying the new requests. Under 11 NYCRR 65-1.1 (b), an insurer may reasonably require a provider's EUO. Office-practice affidavits established timely scheduling and denials; the conducting attorney's personal knowledge established nonappearance. The Appellate Term, Second Department, searched the record and modified the order to grant the insurer summary judgment with prejudice, leaving the provider's cross motion denied. It also rejected the provider's CPLR 4213 (b) objection because the motion ruling complied with CPLR 2219 (a).

Reported in New York Official Reports at First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50593(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

First Class Medical, P.C., as Assignee of Bamidele Akinyooye, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated Jfune 1, 2015. The order, upon a motion by defendant for summary judgment dismissing the complaint with prejudice on the ground that plaintiff’s assignor failed to appear for examinations under oath, granted defendant’s motion to the extent of dismissing the complaint without prejudice on the ground that the action was premature, and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted; 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 plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. In opposition to defendant’s motion, plaintiff attached copies of letters to defendant stating, among other things, that, since its principal had testified at a previous EUO on January 11, 2013, plaintiff had “complied with its obligations under the no-fault regulations.” Plaintiff appeals from an order of the District Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that the action was premature, and denied plaintiff’s cross motion.

At the outset we note that plaintiff failed to establish that it had mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the objection letters that it attached to its opposition papers (see generally Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists [*2]2011] [where a plaintiff fails to object to an EUO request at the time it is requested, the plaintiff’s objections to the request may not be raised for the first time during litigation]). In any event, the no-fault regulations provide that an insurer may request that a provider submit to an EUO as may reasonably be required (see 11 NYCRR 65-1.1 [b]) and, here, defendant demonstrated that the requests for the EUOs at issue pertain to claims which it had received after the January 11, 2013 EUO had been conducted.

Upon a review of the record, we find that the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

We note that the District Court stated that it was granting defendant’s motion because “defendant’s verification request remained outstanding[,] leaving the defendant insurer under no obligation to pay or deny the claim rendering the plaintiff’s claim for payment premature.” Thus, the District Court’s dismissal of the complaint was implicitly without prejudice. However, an appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), and defendant timely denied the claims at issue on that ground. As a result, upon searching the record (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]), we find that defendant is entitled to summary judgment dismissing the complaint with prejudice.

We further note that there is no merit to plaintiff’s argument that the order of the District Court should be reversed because it was not made in accordance with CPLR 4213 (b), as that statute pertains to decisions after a bench trial. The record shows that the court determined the parties’ motion and cross motion in accordance with CPLR 2219 (a), the applicable statute.

Accordingly, the order is modified by providing that, upon searching the record, defendant’s motion for summary judgment dismissing the complaint with prejudice is granted.

Iannacci, J.P., Tolbert and Brands, JJ., concur.

Legal questions (3)

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 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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved timely mailing of the EUO scheduling letters and, through the attorney who was to conduct the EUOs, the provider's nonappearance. The requests concerned claims received after an earlier 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, 527 (this one included) are in the same category.

No-show: coverage defense or precludable?

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Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)

Held the insurer entitled to dismissal with prejudice because the provider's appearance at an EUO is a condition precedent to liability and the insurer timely denied the claims on that ground.

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

Proof of mailing

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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 the insurer's affidavits established that the EUO scheduling letters and denial forms were timely mailed under its standard office practices. The provider failed to show it mailed its objection letters.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U))The insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
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.

Cited by

A label shows how the later decision treated this one.

Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.
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.
NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.
New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.

Similar decisions

First Class Med., P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 50477(U))The insurer's EUO letters were sufficient because they identified the assignor, accident date and file number.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.
GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50997(U))The provider failed to show a timely objection to EUO requests and could not challenge their reasonableness in litigation.
Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U))The insurer proved the provider's EUO nonappearances but failed to establish timely payment of a separate claim.