June 24, 2013
New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 23204)
https://www.beynensonlaw.com/case-law/new-century-med-diagnostics-p-c-v-utica-mut-ins-co-2013-ny-slip-op-23204/
- Judge
- James E. d'Auguste, J.
- Decided
- June 24, 2013
- Citation
- 2013 NY Slip Op 23204 · 40 Misc 3d 788
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 23204)
| New Century Med. Diagnostics, P.C. v Utica Mut. Ins. Co. |
| 2013 NY Slip Op 23204 [40 Misc 3d 788] |
| June 24, 2013 |
| d’Auguste, J. |
| Civil Court Of The City Of New York, New York County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Tuesday, October 8, 2013 |
[*1]
| New Century Medical Diagnostics, P.C., as Assignee of Diana Raphael and Others, Plaintiff, v Utica Mutual Insurance Company, Defendant. |
Civil Court of the City of New York, New York County, June 24, 2013
APPEARANCES OF COUNSEL
Dodge & Monroy, P.C., Melville, for defendant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLC, Garden City, for plaintiff.
{**40 Misc 3d at 788} OPINION OF THE COURT
James E. d’Auguste, J.
Defendant Utica Mutual Insurance Company seeks summary judgment dismissing plaintiff New Century Medical Diagnostics, P.C.’s no-fault benefits action.
The parties’ submissions demonstrate that New Century timely submitted its claims and Utica timely denied the claims{**40 Misc 3d at 789} based upon New Century’s failure to appear at two scheduled examinations under oath. Defaulting in appearing at properly scheduled examinations under oath [*2]represents a failure to comply with a condition precedent to coverage. (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2d Dept 2006].) New Century has not denied its nonappearance, but asserts that the notices were defective because they sought the production of a specific individual. In advancing this argument, New Century relies upon a New York State Insurance Department[FN*] opinion letter holding that a no-fault medical provider can produce any individual with personal knowledge at a scheduled examination under oath. (Ops Gen Counsel NY Ins Dept No. 09-06-10 [June 2009, Alexander Tisch, Esq.].) The Insurance Department, however, did not opine that an insurer’s attempt to secure the production of a particular person renders the entire verification request a nullity. Rather, the opinion letter merely holds that a no-fault provider is permitted to designate any individual with knowledge irrespective of an insurer’s demand that a specific individual appear. Thus, while New Century was not required to produce the specific person Utica requested, its failure to produce any person at the scheduled examinations under oath permitted Utica to deny New Century’s claims.
Accordingly, Utica’s motion for summary judgment dismissing the complaint is granted.
Footnotes
Footnote *: The Insurance Department is now a part of the Department of Financial Services.
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.
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 provider's undisputed failure to produce anyone at two EUOs justified the denial, rejecting its argument that the notices were defective for demanding a specific individual, since it could have produced any knowledgeable person.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 92 (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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- 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.
Similar decisions
- Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. (2012 NY Slip Op 52397(U))The insurer failed to establish timely EUO requests and tolling of its time to pay or deny the provider's claims.
- New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
- Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
- Renelique v Utica Mut. Ins. Co. (2016 NY Slip Op 51530(U))The insurer failed to establish a timely EUO request where its first scheduling letter was sent 35 days after receipt of the claim.