March 21, 2013

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

https://www.beynensonlaw.com/case-law/alrof-inc-v-safeco-natl-ins-co-2013-ny-slip-op-50458u/

Court: Appellate Term, Second Department
Decided: March 21, 2013
Citation: 2013 NY Slip Op 50458(U) · 39 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 2 and followed in 30 later decisions (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130(A), 2013 NY Slip Op 50458(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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.

An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts. The insurer relied on its attorney's review of an office file and familiarity with office procedures, without demonstrating personal knowledge of the provider's nonappearance. That conclusory submission had no probative value under CPLR 3212 (b). Although 11 NYCRR 65-1.1 makes compliance with requested EUOs a condition precedent to payment, alleged noncompliance still requires admissible proof. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion. It expressly directed that W & Z Acupuncture v Amex Assur. Co. and Points of Health Acupuncture v Lancer Ins. Co. no longer be followed to the extent inconsistent.

Reported in New York Official Reports at Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

[*1]

Alrof, Inc. v Safeco Natl. Ins. Co.

2013 NY Slip Op 50458(U) [39 Misc 3d 130(A)]

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2756 K C.

Alrof, Inc. as Assignee of JONATHAN ROSARIO, Respondent, —
against
Safeco National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 20, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and “knowledge of his office practices and procedures,” plaintiff failed to appear at a properly noticed examination under oath (EUO).

The affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR [*2]3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment (Zuckerman v City of New York, 49 NY2d 557 [1980]; Piltser v Donna Lee Mgt. Corp., 29 AD3d 973 [2006]; Gomez v Sammy’s Transp., Inc., 19 AD3d 544 [2005]; Spearmon v Times Sq. Stores Corp, 96 AD2d 552 [1983]). To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) would require a different result, they should no longer be followed.

While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations [11 NYCRR] § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Based upon the foregoing, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 21, 2013

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 an attorney's affirmation based on the office file and office practices had no probative value on the provider's nonappearance at the EUO because the attorney lacked personal knowledge, so the insurer's cross motion failed.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDeclined to follow, questioned, overruled or reversed

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. 3 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U)) OverruledThe insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.
Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U)) OverruledThe insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
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.

Cited by (41)

A label shows how the later decision treated this one.

Harmonic Physical Therapy v Encompass Home & Auto Ins. Co. (2015 NY Slip Op 50733(U)) DistinguishedThe insurer proved the assignor's IME nonappearance through sworn statements based on personal knowledge of office practices and policies.
New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 24277) DistinguishedThe 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.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U)) FollowedThe insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U)) FollowedThe insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
Megacure Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 51994(U)) FollowedThe insurer's untimely denials precluded defenses to three claims, while timely EUO denials defeated summary judgment on six others.
SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U)) FollowedThe insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
K.O. Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51151(U)) FollowedThe defendant failed to prove the assignor's IME nonappearances because its affiants did not establish personal knowledge.
Compas Med., P.C. v Travelers Insurance Company (2016 NY Slip Op 51424(U)) FollowedThe insurer proved a verification defense to one claim but lacked personal-knowledge proof of EUO nonappearance for seven others.

Show all 41 citing decisions

Similar decisions

Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51455(U))The insurer established timely mailing of EUO notices and denials, and the provider's failure to attend the scheduled EUOs. The provider opposed the insurer's summary judgment motion and cross-moved for judgment, challenging notice mailing and proof of nonappearance.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52067(U))The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims.
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.
LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form.