April 2, 2012
Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U))
https://www.beynensonlaw.com/case-law/viviane-etienne-med-care-p-c-v-state-farm-mut-auto-ins-co-2012-ny-slip-op50579u/
- Decided
- April 2, 2012
- Citation
- 2012 NY Slip Op 50579(U) · 35 Misc 3d 127(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 9 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 Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U))
| Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2012 NY Slip Op 50579(U) [35 Misc 3d 127(A)] |
| Decided on April 2, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and RIOS, JJ
2010-1917 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 28, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered May 24, 2010 dismissing the complaint (see CPLR 5501 [c]).
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
The affidavits submitted by defendant established that the examination under oath (EUO) scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (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., [*2]17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from 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]).
The appearance of a provider at a duly requested 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., 35 AD3d at 722; 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]). Plaintiff does not claim to have responded in any way to the EUO request. Therefore, plaintiff’s objections regarding the EUO requests will not now be heard (see Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]; cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Rios, concur.
Decision Date: April 02, 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, through the conducting attorney's affirmation, the provider's nonappearance at both EUOs; objections to the requests were not heard because the provider never responded.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
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 timely mailing of the denial forms as part of its successful EUO no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 (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 the EUO scheduling letters and denial forms under its standard office practices.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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)The 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)An 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.
- Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U))The insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) FollowedThe insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
- Urban Radiology, P.C. v Tri-State Consumer Ins. Co. (2010 NY Slip Op 50987(U)) Contrasted (cf., but see)The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims.
- Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) Contrasted (cf., but see)The provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
Cited by (17)
A label shows how the later decision treated this one.
- T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U)) FollowedThe provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
- Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50402(U)) FollowedThe provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal.
- Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51419(U)) FollowedA provider that did not respond to EUO requests could not later challenge their reasonableness to defeat summary judgment.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U)) FollowedThe insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.
- Eagle Surgical Supply, Inc. v Allstate Indem. Co. (2013 NY Slip Op 52012(U)) FollowedThe insurer's EUO request was nine days late, but its denial remained timely within the resulting 21-day period.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U)) FollowedThe provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U)) FollowedThe insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.
- Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51457(U)) FollowedThe provider's EUO objections were not heard because it did not claim to have responded to the insurer's requests.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U)) FollowedThe provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
- National Med. & Surgical Supply, Inc. v ELRAC, Inc. (2017 NY Slip Op 50028(U))An assignor's appearance at a duly requested EUO is a condition precedent to coverage, whether requested before or after claim submission.
Show all 17 citing decisions
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51310(U))
- Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))
- Rutland Med., P.C. v State Farm Ins. Co. (2014 NY Slip Op 24298)
- Eagle Surgical Supply, Inc. v Allstate Ins. Co. (2014 NY Slip Op 51798(U))
- Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))
- Electrodiagnostic & Physical Med PC v Maya Assur. Co. (2014 NY Slip Op 51500(U))
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))
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.
- Viviane Etienne Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50197(U))The insurer's unrebutted peer review and IME reports established lack of medical necessity for the claims challenged on appeal.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))The provider could not challenge the reasons for EUO requests in litigation after failing to object during claims processing.
- VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50603(U))The insurer's summary judgment motion based on the provider's alleged EUO nonappearance was denied on appeal.