July 13, 2012
J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 51348(U))
https://www.beynensonlaw.com/case-law/j-m-chiropractic-servs-pllc-v-state-farm-mut-ins-co-2012-ny-slip-op51348u/
- Decided
- July 13, 2012
- Citation
- 2012 NY Slip Op 51348(U) · 36 Misc 3d 135(A)
- Posture
- Motion to dismiss (CPLR 3211)
- Outcome
- Provider prevailed
- Later treatment
- Followed in 3 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 J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co. (2012 NY Slip Op 51348(U))
| J.M. Chiropractic Servs., PLLC v State Farm Mut. Ins. Co. |
| 2012 NY Slip Op 51348(U) [36 Misc 3d 135(A)] |
| Decided on July 13, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., RIOS and ALIOTTA, JJ
2010-2812 K C.
against
State Farm Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 18, 2009. The order denied defendant’s motion to dismiss the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order denying its motion to dismiss the complaint based upon plaintiff’s failure to appear at scheduled examinations under oath (EUOs).
To avail itself of the presumption of mailing, defendant must submit “either proof
of actual mailing or . . . a standard office practice and procedure designed to ensure that
items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins.
Co., 286 AD2d 679 [2001]). Actual mailing may be established by a proper “certificate [of
mailing] or by [an] affidavit of one with personal knowledge” (Tracy v William Penn Life
Ins. Co. of NY, 234 AD2d 745, 748 [1996]).
In the instant case, defendant failed to establish that the EUO scheduling letters 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 [*2]Term, 2d & 11th Jud Dists 2007]); thus, defendant did not demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) had been tolled. Defendant’s moving papers did not contain an affidavit from a person with knowledge attesting to the fact that the EUO scheduling letters had actually been mailed or describing the standard office practice or procedure used to ensure that such requests are properly mailed or addressed, although defendant did attach copies of the certificate of mailings (cf. Delta Diagnostic Radiology, P.C., 17 Misc 3d 16; see All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2012 NY Slip Op _____ [Appeal No. 2010-1767 K C], decided herewith]). As a result, defendant failed to establish that its denial of claim form was timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s owner to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274 [1997]).
Accordingly, the order is affirmed, albeit on a ground other than the one relied upon by the Civil Court. We note that, contrary to the court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein by use of, among other things, a bold font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]; GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50194[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: July 13, 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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held that without proof the EUO letters were timely mailed the 30-day period was not tolled, so the insurer failed to show its denial was timely and that it was not precluded from the no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to prove mailing of the EUO letters because no affidavit attested to actual mailing or described a standard office practice, despite attached certificates of mailing.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.
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 scheduling letters were mailed or properly addressed
Held the motion to dismiss on the EUO no-show properly denied because the insurer did not prove the scheduling letters were timely mailed; it rejected any bold-font requirement for the letters.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (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) Contrasted (cf., but see)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U)) FollowedEUO scheduling letters need not highlight the time and place in bold or larger type.
Cited by
A label shows how the later decision treated this one.
- Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U)) FollowedThe insurer failed to establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed.
- Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U)) FollowedA timely verification request's toll does not give an insurer further opportunities to make otherwise untimely verification requests.
- New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))EUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
- Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U))The provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.
Similar decisions
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))A provider's appearance at a duly requested EUO is a condition precedent to the insurer's liability under the policy.
- 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.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
- 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.
- T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.