June 27, 2012
Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51276(U))
https://www.beynensonlaw.com/case-law/mega-supplies-billing-inc-v-state-farm-mut-auto-ins-co-2012-ny-slip-op51276u/
- Decided
- June 27, 2012
- Citation
- 2012 NY Slip Op 51276(U) · 36 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51276(U))
| Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. |
| 2012 NY Slip Op 51276(U) [36 Misc 3d 130(A)] |
| Decided on June 27, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 ALIOTTA, JJ
2011-29 Q C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 15, 2010, deemed from a judgment of the same court entered December 13, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 15, 2010 order granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint and denying plaintiff’s cross motion for summary judgment. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).
In support of its motion for summary judgment, defendant submitted affidavits by employees of its special investigative unit which were sufficient to establish that letters [*2]scheduling examinations under oath (EUOs) and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, 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 one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
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 [2006]). While plaintiff maintains that an insurer must advise an applicant that its failure to appear for an EUO will be excused where the applicant provides reasonable justification for the nonappearance, we find no basis in the regulations for imposing such a requirement (cf. Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]). Thus, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
Accordingly, the judgment is affirmed.
Weston, J.P., Pesce and Aliotta, JJ., concur.
Decision Date: June 27, 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 insurer proved mailing of the EUO letters and the provider's nonappearance at both EUOs, and rejected the argument that the insurer had to advise that a justified nonappearance would be excused.
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. One decision in other departments that cites or is cited by this one is 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 established that its denial forms, based on the EUO nonappearance, had been timely mailed, as part of its successful 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 SIU employees' affidavits sufficient to establish timely mailing of the EUO scheduling letters and the denial forms.
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.
- 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
- New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 24277)The 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.
Similar decisions
- Mega Supplies Billing, Inc. v State Farm Fire & Cas. Co. (2012 NY Slip Op 51014(U))The insurer proved timely mailing of the EUO notices and denials and the provider's failure to attend either scheduled EUO. In this action for assigned first-party no-fault benefits, the provider challenged the affidavits supporting the insurer's summary judgment motion.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.
- Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U))EUO scheduling letters need not conspicuously highlight the information they contain under 11 NYCRR 65-3.5 (b) and (e).
- 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.
- Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))The insurer's affidavits established timely mailing of EUO scheduling letters and denials based on the provider's nonappearance.