April 16, 2015

VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50603(U))

https://www.beynensonlaw.com/case-law/ve-med-care-p-c-v-state-farm-mut-auto-ins-co-2015-ny-slip-op50603u/

Court: Appellate Term, Second Department
Decided: April 16, 2015
Citation: 2015 NY Slip Op 50603(U) · 47 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 140(A), 2015 NY Slip Op 50603(U) (App Term, 2d Dept, 2d, 11th & 13th 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 summary judgment motion based on the provider's alleged EUO nonappearance was denied on appeal. The Appellate Term, Second Department, reversed the order dismissing the complaint because the insurer failed to establish that defense as a matter of law, citing Alrof, Inc. v Safeco Natl. Ins. Co. and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.

Reported in New York Official Reports at VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50603(U))

[*1]

VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co.

2015 NY Slip Op 50603(U) [47 Misc 3d 140(A)]

Decided on April 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1826 K C

VE Medical Care, P.C. as Assignee of ALEXIS GUERRERO, 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 (Devin P. Cohen, J.), entered March 23, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Defendant’s motion should have been denied, as defendant failed to establish, as a matter of law, its defense that plaintiff had failed to appear for properly scheduled EUOs (see e.g. Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the order is reversed and defendant’s motion is denied.

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

Decision Date: April 16, 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: Insurer failed to prove the nonappearance by someone with personal knowledge

Held the insurer failed to establish as a matter of law its defense that the provider did not appear for properly scheduled EUOs, and reversed summary judgment dismissing the complaint.

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

Cited in this decision

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.

Similar decisions

Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51446(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))The insurer proved timely denials and an unrebutted lack of medical necessity through its litigation examiner's affidavit and IME report.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50424(U))The insurer's motion for summary judgment dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal.