October 13, 2016
Integrative Pain Medicine, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51525(U))
https://www.beynensonlaw.com/case-law/integrative-pain-medicine-p-c-v-allstate-ins-co-2016-ny-slip-op51525u/
- Decided
- October 13, 2016
- Citation
- 2016 NY Slip Op 51525(U) · 53 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 Integrative Pain Medicine, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51525(U))
| Integrative Pain Medicine, P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 51525(U) [53 Misc 3d 141(A)] |
| Decided on October 13, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-82 K C October 13, 2016
against
Allstate Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered January 7, 2014. The order, insofar as appealed from, upon granting defendant’s cross motion for summary judgment dismissing the complaint, imposed conditions.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the conditions imposed by the Civil Court are vacated.
In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the Civil Court granted defendant’s cross motion for summary judgment dismissing the complaint on condition that plaintiff’s assignor fail to appear for a new examination under oath (EUO) to be “re-notice[d]” by defendant in accordance with instructions set out in the order. Defendant appeals from so much of the order as imposed those conditions.
Appearance at an EUO is a condition precedent to coverage (see 11 NYCRR 65—1.1; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Upon finding that defendant demonstrated that it had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs, the Civil Court should not have given plaintiff’s assignor an opportunity to cure its failure to act during claims processing (see IDS Prop. Cas. Ins. Co. v Stracar Med. Services, P.C., 116 AD3d 1005 [2014]). Under the circumstances, the court should have granted defendant’s cross motion for summary judgment unconditionally.
Accordingly, the order, insofar as appealed from, is reversed, and the conditions imposed by the Civil Court are vacated.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 13, 2016
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.
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 (rules on the question, but another ground decided the case)
Held that once the insurer established the assignor's failure to appear for duly scheduled EUOs, the assignor could not be given a chance to cure by attending a re-noticed EUO, so summary judgment was granted unconditionally.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092)The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- 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.
- IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. (2014 NY Slip Op 02902) FollowedThe providers' unexcused EUO nonappearances materially breached a condition precedent to indemnity and warranted summary judgment for the insurer.
Similar decisions
- Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U))The insurer failed to establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.
- Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))The insurer failed to prove timely mailing of the initial and follow-up EUO letters, defeating summary judgment on nonappearance.
- Synergy First Med., P.L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51365(U))An insurer seeking judgment for an assignor's EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denial.