November 13, 2015
Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))
https://www.beynensonlaw.com/case-law/active-chiropractic-p-c-v-praetorian-ins-co-2015-ny-slip-op51668u/
- Decided
- November 13, 2015
- Citation
- 2015 NY Slip Op 51668(U) · 49 Misc 3d 145(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))
| Active Chiropractic, P.C. v Praetorian Ins. Co. |
| 2015 NY Slip Op 51668(U) [49 Misc 3d 145(A)] |
| Decided on November 13, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-803 Q C
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered February 19, 2013. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
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, alleging that the claim at issue had been timely and properly denied based upon plaintiff’s assignor’s failure to appear at duly scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, the Civil Court denied defendant’s cross motion, finding that there was an issue of fact as to whether plaintiff’s assignor had failed to appear for the duly scheduled EUOs.
The affirmation submitted by defendant’s attorney in support of defendant’s cross motion sufficiently described the standard practices and procedures of his office for mailing EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant established, based upon the personal knowledge of the attorney who was responsible for conducting the EUOs at issue, that plaintiff’s assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52031[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Contrary to the determination of the Civil Court, defendant’s annexation of EUO transcripts demonstrating that a different assignor had also failed to appear for that assignor’s EUOs did not demonstrate the existence of a triable issue of fact in the instant action. Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C., 35 AD3d at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claim on that ground, defendant was entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 13, 2015
Legal questions (3)
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.
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
Held the no-show defense established through the conducting attorney's personal knowledge of both nonappearances, and that transcripts showing a different assignor's no-shows raised no triable issue.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer entitled to dismissal because it showed both the EUO no-shows and that it had timely denied the claim on that ground.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (this one included) are in the same category.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)
Held the insurer's attorney's affirmation sufficiently described his office's standard practices for mailing the EUO scheduling letters.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U)) FollowedThe insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
Similar decisions
- BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground.
- AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))The insurer established proper mailing of its denial forms and the assignor's failure to appear for EUOs. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits on the EUO nonappearance defense.
- 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.
- Park Slope Med. v Praetorian Ins. Co. (2011 NY Slip Op 52062(U))An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy.
- Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.