November 21, 2013
Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U))
https://www.beynensonlaw.com/case-law/ortho-prods-equip-inc-v-interboro-ins-co-2013-ny-slip-op52054u/
- Decided
- November 21, 2013
- Citation
- 2013 NY Slip Op 52054(U) · 41 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Issues
- EUO no-show
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 Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U))
| Ortho Prods. & Equip., Inc. v Interboro Ins. Co. |
| 2013 NY Slip Op 52054(U) [41 Misc 3d 143(A)] |
| Decided on November 21, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-551 K C.
against
Interboro Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered December 17, 2010. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes are granted.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied defendant’s motion for summary judgment dismissing the complaint. As limited by its brief, defendant appeals from so much of the order as denied the branches of defendant’s motion seeking to dismiss so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes.
Defendant established that it had timely denied the claims at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground that each assignor had failed to appear for examinations under oath (EUOs). It [*2]further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is reversed and the branches
of defendant’s motion seeking summary judgment dismissing so much of the
complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson
and Bradley Forbes are granted.
Pesce, P.J., and Solomon, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:
For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath. Consequently, in my opinion, the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claims assigned to plaintiff by Daniel Robinson and Bradley Forbes were properly denied.
Accordingly, I would affirm the order, insofar as appealed from.
Decision Date: November 21, 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 proved timely mailing of the EUO scheduling letters and that two assignors failed to appear at either scheduled EUO, and the provider raised no triable issue.
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.
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 established that it timely denied the claims on the ground that the assignors failed to appear for EUOs.
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.
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 mailing of its denials and of its EUO scheduling letters.
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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U)) FollowedThe insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
- 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.
- Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U)) FollowedThe insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
Cited by
A label shows how the later decision treated this one.
- Actual Chiropractic, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51435(U)) FollowedAn EUO nonappearance denial is not conclusory or vague as a matter of law merely because it omits the scheduled examination dates.
- St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51732(U)) FollowedOmitting scheduled EUO dates from a denial does not make the denial conclusory, vague, or legally meritless.
Similar decisions
- Big Apple Ortho Prods., Inc. v Allstate Ins. Co. (2018 NY Slip Op 50775(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
- Ortho Passive Motion, Inc. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51364(U))The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification.
- Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.