August 7, 2012
Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))
https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-interboro-mut-indem-ins-co-2012-ny-slip-op51628u/
- Decided
- August 7, 2012
- Citation
- 2012 NY Slip Op 51628(U) · 36 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Contrasted (cf., but see) in 1 and followed in 4 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 Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))
| Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. |
| 2012 NY Slip Op 51628(U) [36 Misc 3d 146(A)] |
| Decided on August 7, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., PESCE and RIOS, JJ
2011-415 K C.
against
Interboro Mutual Indemnity Insurance Company, 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 denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied its motion for summary judgment dismissing the complaint.
The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim form had been timely mailed (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]). Defendant also submitted an affirmation by an attorney who was at the time of the scheduled EUOs, the [*2]“managing no-fault attorney” of the law firm retained by defendant to conduct the assignor’s EUO, which set forth the law firm’s practices and procedures in establishing appearances at EUOs and which demonstrated that the assignor had failed to appear at either of the duly scheduled EUOs (see 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]). 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 is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Weston, J.P., Pesce, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the order in the following memorandum:
In support of its motion for summary judgment dismissing the complaint, defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Defendant’s affiant stated:
“[M]y former firm would send an employee of said law firm to the deposition center upon which the EUO was supposed to occur for the purpose of confirming that the deponent was not present at the said deposition center. The attorney would personally confirm this fact with the former law firm’s office and a notation will be made in the computer system.”
Defendant’s affiant, who had no personal knowledge that a notation had been made in the computer system, made conclusory allegations regarding defendant’s office practices and did not establish, as a matter of law, that defendant had followed those office practices (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]). Moreover, proof of the contents of a writing require the production of the document (see Schozer v William Penn Life Ins. Co. of NY, 84 NY2d 639 [1994]).
Contrary to the finding of the majority, defendant failed to meet its burden by proof in admissible form that the assignor had failed to appear for the EUOs (see CPLR 4518 [a]).
Accordingly, defendant’s motion was properly denied.
Decision Date: August 07, 2012
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 managing attorney's affirmation describing the firm's appearance-tracking practices proved the assignor failed to appear at both EUOs, and the letters were timely mailed.
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. 2 decisions in other departments that cite or are cited by this one are 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's affidavits established the denial of claim form was timely mailed, as part of its EUO no-show defense.
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 timely mailing of both the EUO scheduling letters and the denial of claim form.
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. 2 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.
- 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.
- W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U)) FollowedThe 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.
- 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 (14)
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)) Contrasted (cf., but see)The insurer proved the assignor's IME nonappearance through sworn statements based on personal knowledge of office practices and policies.
- Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U)) FollowedThe insurer established timely EUO notices and denials and both assignors' nonappearances, warranting dismissal of their assigned claims.
- Tam Med. Supply Corp. v Tri State Consumers Ins. Co. (2016 NY Slip Op 51350(U)) FollowedThe scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. The provider challenged that proof on appeal from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the action for assigned no-fault benefits.
- True-Align Chiropractic Care, P.C. v Country Wide Ins. Co. (2014 NY Slip Op 51821(U)) FollowedThe insurer proved nonreceipt of requested verification for one claim and the assignor's IME nonappearances for the remaining claims.
- Health Evolve Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50691(U)) FollowedThe insurer's affirmations and affidavits from the scheduled examining providers established the assignor's failure to attend the IMEs. In the provider's assigned no-fault action, the Civil Court, Kings County, denied the insurer's cross motion but found, in effect under CPLR 3212 (g) that nonappearance was the only issue remaining for trial.
- Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921)Failure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
- Utopia Equip., Inc. v ELRAC, Inc. (2017 NY Slip Op 50949(U))IME notices from a third party adequately identified the claims processor, and the doctor's affirmation proved nonappearance.
- Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50399(U))The insurer failed to prove IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
- Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51591(U))The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial.
Show all 14 citing decisions
Similar decisions
- Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))The insurer failed to establish that EUO scheduling letters were mailed before the scheduled EUO dates, defeating summary judgment.
- 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.
- All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- 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.
- Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U))The insurer failed to establish timely EUO denials because it did not prove that the first scheduled EUO had been mutually rescheduled.