December 18, 2015

Excel Imaging, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51896(U))

https://www.beynensonlaw.com/case-law/excel-imaging-p-c-v-allstate-ins-co-2015-ny-slip-op-51896u/

Court: Appellate Term, Second Department
Decided: December 18, 2015
Citation: 2015 NY Slip Op 51896(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Excel Imaging, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51896(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2015)

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's EUO no-show defense presented a factual issue because the record did not resolve a prior adjournment request. The insurer alleged that the assignor missed two EUOs, but its submissions acknowledged an adjournment request made before the first appointment. Although appearance is a condition precedent to coverage, mutual rescheduling before the appointment does not constitute nonappearance. Counsel did not establish whether such rescheduling occurred, and the record omitted when the request was made and how the insurer responded. The court also left open whether other circumstances explained the alleged nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion.

Reported in New York Official Reports at Excel Imaging, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51896(U))

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

Excel Imaging, P.C. as Assignee of KENNETH OWENS, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated April 10, 2013. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant denied the claim at issue based upon the assignor’s alleged failure to appear at duly scheduled examinations under oath (EUOs). Defendant moved for summary judgment dismissing the complaint on the ground that, by failing to appear at the EUOs, plaintiff’s assignor had failed to comply with a condition precedent to coverage. Plaintiff cross-moved for summary judgment. Defendant appeals from so much of an order of the District Court as denied defendant’s motion.

On this record, we find that there is an issue of fact as to whether plaintiff’s assignor failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). An assignor’s appearance at a scheduled EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722). Here, defendant alleges that plaintiff’s assignor failed to appear for duly scheduled EUOs on January 28 and February 24, 2011. However, the papers submitted in support of defendant’s motion included a letter from defendant, dated February 7, 2011, which indicated that plaintiff had requested an adjournment of the January 28, 2011 date. At oral argument, defendant’s counsel conceded that this request was made before January 28, 2011, but he did not indicate whether or not there had been a mutual rescheduling prior to that date (see e.g. Five Boro Psychological Services, P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013] [a mutual rescheduling, which occurs prior to the date of a scheduled EUO, does not constitute a failure to appear]; DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

Even absent a prior mutual agreement to reschedule, there may be other reasons why plaintiff’s assignor should not be considered to have failed to appear for the January 28, 2011 appointment (see Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). [*2]However, the record does not reveal the surrounding circumstances, for example, when exactly plaintiff requested the adjournment or when or how defendant responded. Without such details, we cannot determine the reasonableness and/or timeliness of each party’s conduct. Therefore, we cannot determine if plaintiff’s assignor should be deemed to have failed to appear on January 28, 2011 and, thus, whether there was a failure to comply with a condition precedent to coverage.

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

Tolbert, J.P., Marano and Garguilo, JJ., concur.

Decision Date: December 18, 2015

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.

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: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law

Held a triable issue existed whether the assignor failed to appear, because the insurer's own letter showed an adjournment was requested before the first EUO and the record did not show whether it was mutually rescheduled.

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

Cited in this decision

A label shows how this decision treated the case it cites.

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.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.
Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U))Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
Vitality Chiropractic, P.C. v Kemper Ins. Co. (2006 NY Slip Op 26536)Preclaim IME requests do not toll the denial period, and mutually agreed rescheduling of initial IMEs is not a follow-up request.

Similar decisions

Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))The insurer established timely EUO requests, the assignor's nonappearance, and a timely denial based on that failure.
Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))The insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims.
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.
Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))The insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.