April 25, 2016

Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))

https://www.beynensonlaw.com/case-law/professional-health-imaging-p-c-v-state-farm-mut-auto-ins-co-2016-nyslip-op-50698u/

Court
Appellate Term, Second Department
Decided
April 25, 2016
Citation
2016 NY Slip Op 50698(U)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 17 later decisions (see Cited by)
Issues
EUO no-show Discovery and procedure Verification requests
Legal questions
No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)
Cite as
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50698(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 provider could not challenge the reasons for EUO requests in litigation after failing to object during claims processing. The insurer established the provider's nonappearance at two duly scheduled EUOs and proper tolling under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The provider had demanded a flat upfront attendance fee rather than reimbursement for lost earnings and reasonable transportation expenses under 11 NYCRR 65-3.5 (e). Because it had not challenged the requests' reasonableness when made, related discovery was unnecessary to oppose summary judgment under CPLR 3212 (f). The Appellate Term, Second Department, affirmed dismissal on the insurer's motion and denial of the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery.

Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))

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

Professional Health Imaging, P.C., as Assignee of JENNIFER DONOFRIO, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.

ORDERED that the order is affirmed, with $25 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 had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.

Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Indeed, in support of plaintiff’s cross motion, plaintiff’s counsel virtually conceded that plaintiff had failed to appear for the EUOs. Contrary to plaintiff’s further argument, defendant established that it had properly tolled its time to pay the two claims in question (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

We also reject plaintiff’s contention that defendant’s motion was premature in light of outstanding discovery (see CPLR 3212 [f]). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff did not object to defendant’s reasons for [*2]seeking the EUO during the claims processing stage, plaintiff may not raise such objections in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (cf. CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).

Plaintiff’s remaining arguments are moot and/or lack merit.

Accordingly, the order is affirmed.

Elliot, J.P., Weston and Solomon, JJ., concur.


Decision Date: April 25, 2016

Similar decisions