December 20, 2013
Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U))
https://www.beynensonlaw.com/case-law/concourse-chiropractic-pllc-v-state-farm-mut-ins-co-2013-ny-slip-op52225u/
- Decided
- December 20, 2013
- Citation
- 2013 NY Slip Op 52225(U) · 42 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Earlier history
- Appeal from Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 50676(U)) (Modified)
- Later treatment
- Followed in 2 later decisions (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 Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U))
| Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. |
| 2013 NY Slip Op 52225(U) [42 Misc 3d 131(A)] |
| Decided on December 20, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, J.P., NICOLAI and LaSALLE, JJ
.
against
State Farm Mutual Insurance Company, Appellant.
Appeal from an order of the District Court of Nassau County, First District (Fred J. Hirsh, J.), dated April 16, 2012. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through sixth and ninth and tenth causes of action of the complaint are granted; as so modified, 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 appeals, as limited by the brief, from so much of an order as denied its motion for summary judgment dismissing the complaint.
With respect to the first through sixth and ninth and tenth causes of action of the complaint, we find that the affidavits submitted by defendant established that the examination under oath (EUO) notices had been timely sent to plaintiff (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]), and that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The District Court correctly found that defendant demonstrated that the claims underlying these causes of action had been timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) based on plaintiff’s nonappearance at the EUOs. In light of the foregoing, since plaintiff’s appearance at the EUOs “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C., 35 AD3d at 722; see also Insurance Department Regulations [11 NYCRR] § 65-1.1), the burden shifted to plaintiff to rebut defendant’s prima facie showing. However, as the District Court found, plaintiff did not respond in any way to the EUO scheduling letters sent by defendant. Since the opposing affirmation submitted by plaintiff’s counsel was insufficient to raise a triable issue of fact with respect to the claims denied on the ground that plaintiff had failed to appear at the EUOs (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]), defendant is entitled to summary judgment dismissing the first through sixth and ninth and tenth causes of [*2]action.
With respect to the seventh and eighth causes of action, while it is undisputed that defendant paid the claim underlying these causes of action, defendant failed to establish that its payment was timely. Consequently, the branches of defendant’s motion seeking dismissal of these causes of action were properly denied.
Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first through sixth and ninth and tenth causes of action of the complaint are granted.
Marano, J.P., Nicolai and LaSalle, JJ., concur.
Decision Date: December 20, 2013
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 insurer's affidavits proved the EUO notices were timely sent and the provider failed to appear; counsel's affirmation raised no triable issue since the provider never responded to the letters.
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. One decision in other departments that cites or is cited by this one is on 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: 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 demonstrated that the claims were timely denied based on the provider's nonappearance at the EUOs, supporting dismissal of those causes of action.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
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 affidavits established that the EUO notices were timely sent and the denials timely issued.
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.
- Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U)) FollowedThe insurer's cross motion for summary judgment on IME nonappearance was upheld upon sufficient proof of mailing of the requests.
- 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.
- Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 50676(U)) ModifiedAn insurer may not use an EUO request to demand corporate records concerning a Mallela defense as verification of a claim.
Cited by
A label shows how the later decision treated this one.
- New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 24277) FollowedThe insurer's attorney affirmation established personal knowledge of the provider's failure to appear for two scheduled EUOs. The attorney was present on both dates and stated unequivocally that, had the provider appeared, the attorney would have conducted the EUO or assigned another attorney to do so.
- NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.
- Boulevard Multispec Med., P.C. v Tri-State Consumer Ins. Co. (2014 NY Slip Op 24080)An IME nonappearance supports denial only if there is some relationship between the missed IME and the treatment at issue.
- Arthur Ave. Med. Servs., PC v GEICO Ins. Co. (2021 NY Slip Op 21108)An insurer's post-EUO verification requests concerning fraudulent incorporation are subject to judicial review for reasonableness.
Similar decisions
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U))The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.
- Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 51058(U))The insurer's untimely follow-up EUO request failed to toll the claim-determination period, making its denial untimely.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 51041(U))The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.