March 11, 2016

Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-allstate-ins-co-2016-ny-slip-op50311u/

Court: Appellate Term, Second Department
Decided: March 11, 2016
Citation: 2016 NY Slip Op 50311(U) · 50 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Great Health Care Chiropractic, P.C. v Allstate Ins. Co., 50 Misc 3d 146(A), 2016 NY Slip Op 50311(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 prove timely mailing of the initial and follow-up EUO letters, defeating summary judgment on nonappearance. The insurer sought dismissal of the provider's action for assigned no-fault benefits, alleging that it had timely and properly denied the claims because the assignor failed to appear for duly scheduled EUOs. Its supporting papers did not establish timely mailing of either set of scheduling letters. Consequently, it did not demonstrate that the EUOs were properly scheduled or that the assignor failed to attend duly scheduled EUOs. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))

[*1]

Great Health Care Chiropractic, P.C. v Allstate Ins. Co.

2016 NY Slip Op 50311(U) [50 Misc 3d 146(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1439 K C

Great Health Care Chiropractic, P.C. as Assignee of Remech Hall, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 2, 2013. 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, defendant moved for summary judgment dismissing the complaint, alleging that the claims at issue had been timely and properly denied on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered May 2, 2013, the Civil Court granted defendant’s motion.

In support of its motion, defendant failed to establish that the initial and follow-up EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the EUOs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled 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 Elliot, JJ., concur.

Decision Date: March 11, 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 failed to establish that its initial and follow-up EUO scheduling letters had been timely 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

Held the EUO no-show defense unproved because the insurer did not show timely mailing of the initial and follow-up scheduling letters, so the EUOs were not shown properly scheduled.

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.
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.

Similar decisions

Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))The insurer failed to establish a proper EUO nonappearance denial because its first EUO notice was mailed about 50 days after claim receipt.
Great Health Care Chiropractic, P.C. v Esurance (2015 NY Slip Op 50807(U))The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.