March 12, 2015

Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50382(U))

https://www.beynensonlaw.com/case-law/avicenna-med-arts-pllc-v-unitrin-advantage-ins-co-2015-ny-slip-op50382u/

Court: Appellate Term, Second Department
Decided: March 12, 2015
Citation: 2015 NY Slip Op 50382(U) · 47 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · No-show defense: insurer's proof · Claimant's prima facie case on motions (see the maps)

Cite as

Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co., 47 Misc 3d 130(A), 2015 NY Slip Op 50382(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 untimely follow-up EUO requests and late denials precluded its EUO nonappearance defense to the provider's first six claims. The provider failed to establish prima facie entitlement to summary judgment because it proved neither nonpayment or denial within 30 days under Insurance Law § 5106 (a), nor a timely denial legally insufficient on its face. Nevertheless, the insurer's cross-motion papers established that its follow-up EUO requests were untimely under 11 NYCRR 65-3.6 (b) and that the claims were not denied within 30 days of receipt under 11 NYCRR 65-3.8 (a) (1). The Appellate Term, Second Department, affirmed the judgment awarding the provider recovery on its first six causes of action.

Reported in New York Official Reports at Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50382(U))

[*1]

Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co.

2015 NY Slip Op 50382(U) [47 Misc 3d 130(A)]

Decided on March 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 12, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2454 Q C

Avicenna Medical Arts, PLLC as Assignee of SAMUEL DARWA, Respondent,
against
Unitrin Advantage Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 16, 2012. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. The appeal from the order is deemed to be from a judgment of the same court entered October 17, 2012 awarding plaintiff the principal sum of $2,903 (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, with $25 costs.

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 on the ground that the bills at issue had been timely and properly denied based on plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). Insofar as is relevant to this appeal, by order entered August 16, 2012, the Civil Court granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s first six causes of action. A judgment was subsequently entered awarding plaintiff the principal sum of $2,903.

Defendant correctly argues on appeal that plaintiff did not demonstrate its prima facie entitlement to summary judgment, as it failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). However, as the Civil Court found, the papers submitted in support of defendant’s cross motion demonstrated that defendant’s follow-up EUO requests were untimely (see 11 NYCRR 65-3.6 [b]; Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 35 Misc 3d 146[A], 2012 NY Slip Op 51058[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). As the claims at issue were not denied within 30 days of their receipt (see 11 NYCRR 65-3.8 [a] [1]), defendant is precluded from asserting its defense that there had been a failure to appear for EUOs as to those claims (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), and, thus, plaintiff was properly granted judgment on its first six causes of action.

Accordingly, the judgment is affirmed.

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

Decision Date: March 12, 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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer precluded from its EUO no-show defense because its untimely follow-up requests did not toll the 30 days and the claims were not denied within 30 days of receipt.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer's own papers showed its follow-up EUO requests were untimely under the 10-day follow-up rule, so its no-show defense failed for those claims.

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

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied) (rules on the question, but another ground decided the case)

Held the provider did not show the claims were not paid or denied within 30 days or that a timely denial was conclusory, vague or without merit, though judgment was affirmed on the insurer's own papers.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 51058(U)) FollowedThe insurer's untimely follow-up EUO request failed to toll the claim-determination period, making its denial untimely.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by

A label shows how the later decision treated this one.

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50678(U)) FollowedThe insurer failed to establish timely mailing of the follow-up EUO notice for the first cause of action.
New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U))A provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).

Similar decisions

A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Avicenna Med. Arts, P.L.L.C. v GEICO Ins. Co. (2014 NY Slip Op 50871(U))The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's IME findings of lack of medical necessity.
AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52256(U))The insurer failed to prove mailing of IME requests and therefore failed to establish tolling or timely denial of the provider's claims.
Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion.
Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim.