July 7, 2014
Hillside OpenMRI, P.C. v Allstate Ins. Co. (2014 NY Slip Op 51143(U))
https://www.beynensonlaw.com/case-law/hillside-openmri-p-c-v-allstate-ins-co-2014-ny-slip-op51143u/
- Decided
- July 7, 2014
- Citation
- 2014 NY Slip Op 51143(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Hillside OpenMRI, P.C. v Allstate Ins. Co. (2014 NY Slip Op 51143(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated December 3, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based on the failure of plaintiff’s assignor to appear for scheduled examinations under oath (EUOs). The District Court denied defendant’s motion on the ground that defendant had not offered a reason why it had requested an EUO. This appeal by defendant ensued.
With respect to the fourth cause of action, seeking to recover upon a claim for $879.73, and the fifth cause of action, seeking attorney’s fees with respect thereto, defendant established that the time to pay or deny this claim had been tolled by the timely issuance of EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claim had been timely denied (see id.) on that ground. Contrary to the determination of the District Court, no “provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs” (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]). Moreover, the Insurance Department’s interpretation of the Regulations “is entitled to deference unless irrational or unreasonable” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006] [internal quotation marks omitted]). An assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d at 722). The opposing affirmation submitted by plaintiff’s counsel did not raise a triable issue of fact with respect to these causes of action. As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests, plaintiff’s remaining objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing the fourth and fifth causes of action should have been granted.
With respect to the second cause of action, seeking to recover upon a claim for $878.66, and the third cause of action, seeking attorney’s fees with respect thereto, defendant’s claim representative stated that defendant had received plaintiff’s claim for the sum of $878.66 on July 8, 2010 and that it had denied the claim on October 4, 2010. She also stated that defendant had [*2]sent delay letters, dated July 30, 2010 and September 9, 2010 to plaintiff after the receipt of the claim. The letters informed plaintiff that payment of the claim would be delayed pending an EUO of the injured party. However, an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to demonstrate that the claim underlying these causes of action had been timely denied. Thus, the branches of defendant’s motion seeking dismissal of the second and third causes of action were properly denied.
As the first cause of action does not allege a separate cause of action, it should also have been dismissed.
Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first, fourth and fifth causes of action of the complaint are granted.
Iannacci, J.P., Marano and Garguilo, JJ., concur.
Decision Date: July 07, 2014
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.
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
Granted the EUO no-show defense on one claim that was timely denied, but held another claim not shown timely denied because delay letters pending an EUO did not toll the 30 days.
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.
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 insurer proved timely EUO letters and two nonappearances for one claim, rejecting the lower court's view that the scheduling notice had to state reasons; unanswered objections were not heard.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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 established timely issuance of the EUO scheduling letters and timely denial of one claim, citing the standard-office-practice rule.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) FollowedThe insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
- Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) FollowedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
Cited by
A label shows how the later decision treated this one.
- Hempstead Regional Chiropractic, PC v Allstate Ins. Co. (2014 NY Slip Op 24259) FollowedThe insurer failed to establish an objective basis for its EUO request after the assignor timely objected to appearing.
Similar decisions
- Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U))The insurer proved the provider's EUO nonappearances but failed to establish timely payment of a separate claim.
- Hillside Open MRI, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50408(U))The insurer's medical-necessity summary judgment motion was premature because the provider needed outstanding discovery to oppose it.
- First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50593(U))The insurer established two EUO nonappearances and timely denials, warranting dismissal with prejudice rather than dismissal as premature.
- First Class Med., P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 50477(U))The insurer's EUO letters were sufficient because they identified the assignor, accident date and file number.
- Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51244(U))The provider failed to establish its prima facie case, while the insurer proved timely denial of the second claim.