October 13, 2016

Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U))

https://www.beynensonlaw.com/case-law/integrative-pain-medicine-p-c-v-praetorian-ins-co-2016-ny-slip-op51520u/

Court: Appellate Term, Second Department
Decided: October 13, 2016
Citation: 2016 NY Slip Op 51520(U) · 53 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140(A), 2016 NY Slip Op 51520(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed. The insurer cross-moved for summary judgment dismissing the provider's assigned no-fault claims based on the assignor's EUO nonappearance. The Civil Court denied both parties' motions and, under CPLR 3212 (g), effectively limited trial to the mailing issue. The insurer appealed only the denial of its cross motion. Because its proof did not establish the required mailing practice and procedure, the Appellate Term, Second Department, affirmed the order, insofar as appealed from.

Reported in New York Official Reports at Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U))

[*1]

Integrative Pain Medicine, P.C. v Praetorian Ins. Co.

2016 NY Slip Op 51520(U) [53 Misc 3d 140(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-2771 Q C

Integrative Pain Medicine, P.C., as Assignee of AHMAD MAQSOOD, Respondent,
against
Praetorian Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 19, 2013. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-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). The Civil Court denied both motions, but, in effect, limited the issue for trial, pursuant to CPLR 3212 (g), to whether the EUO scheduling letters had been properly mailed. As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.

The proof submitted by defendant in support of its cross motion failed to establish a practice and procedure sufficient to give rise to a presumption that the EUO scheduling letters had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51348[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 13, 2016

Legal questions (2)

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer's proof failed to describe a practice and procedure sufficient to raise a presumption that the EUO scheduling letters had been properly mailed.

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

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 scheduling letters were mailed or properly addressed

Denied the insurer summary judgment on the EUO no-show because its proof did not establish an office practice sufficient to presume proper mailing of the scheduling letters.

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, 118 (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.
J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 51348(U)) FollowedThe insurer failed to establish timely mailing of EUO notices or tolling of the 30-day claim determination period.

Cited by

A label shows how the later decision treated this one.

Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50736(U)) FollowedAn insurer seeking judgment for EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denials.
Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U)) FollowedThe insurer's transfer of claims between its offices did not raise a triable issue defeating summary judgment for EUO nonappearance.
Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51681(U)) FollowedThe insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter.
Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.
Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51763(U))The insurer's mail-receipt practices were irrelevant to the provider's challenge to timely mailing of the first EUO scheduling letter.
Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51045(U))An EUO letter's different contact at the same law firm does not undermine an otherwise sufficient affirmation of nonappearance.

Similar decisions

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.
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.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52067(U))The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims.
MDJ Med., P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50895(U))The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances.
Pro Health Acupuncture, P.C. v Praetorian Ins. (2016 NY Slip Op 50380(U))The insurer's affidavits established timely mailing of the IME requests and denials and the assignor's failure to attend duly scheduled IMEs. The provider sought assigned first-party no-fault benefits.