October 20, 2010

Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))

https://www.beynensonlaw.com/case-law/lde-med-servs-p-c-v-encompass-ins-2010-ny-slip-op-51845u/

Court: Appellate Term, Second Department
Decided: October 20, 2010
Citation: 2010 NY Slip Op 51845(U) · 29 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Lde Med. Servs., P.C. v Encompass Ins., 29 Misc 3d 130(A), 2010 NY Slip Op 51845(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

The insurer established the assignor's failure to appear for duly scheduled EUOs, defeating the provider's summary judgment motion. The provider sought assigned no-fault benefits, and the insurer opposed on the ground of EUO nonappearance. An associate of the law firm retained to conduct the EUOs submitted an affirmation setting out sufficient facts to establish that the assignor had not appeared at the firm's office. Appearance at an EUO is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion.

Reported in New York Official Reports at Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))

[*1]

Lde Med. Servs., P.C. v Encompass Ins.

2010 NY Slip Op 51845(U) [29 Misc 3d 130(A)]

Decided on October 20, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 20, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-1401 Q C.

LDE Medical Services, P.C. as Assignee of Kerron Alexander, Respondent,
against
Encompass Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 2, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 4, 2009 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,446.67.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath
(EUOs). The Civil Court granted plaintiff’s motion for summary judgment, and this appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Defendant submitted an affirmation of an associate of the law firm retained by defendant to conduct the EUOs. The affirmation set forth facts sufficient to establish that plaintiff’s assignor had failed to appear at the affirmant’s law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [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]). Since appearance at an EUO is a condition precedent to an insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; [*2]Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion is denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 20, 2010

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.

No-show defense: insurer's proof

Open the full map

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 affirmation of the associate at the law firm conducting the EUOs set forth facts sufficient to show the assignor failed to appear for duly scheduled EUOs, so the provider's summary judgment was vacated.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

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.

Cited by

A label shows how the later decision treated this one.

LDE Med. Servs., P.C. v Encompass Ins. (2011 NY Slip Op 50979(U)) FollowedThe provider's summary judgment award was reversed on the assignor's EUO nonappearance defense.
Dynamic Med. Imaging, P.C. v State Farm Fire & Cas. Co. (2011 NY Slip Op 21210)EUO notices alone do not conclusively establish a nonappearance defense for dismissal under CPLR 3211 (a) (1).

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51671(U))The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims.
Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms.
Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))The insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims.
New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance.
Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The motion papers demonstrated mailing through the standard office practices of the law firm conducting the EUOs and the insurer's own denial-mailing procedures.