December 7, 2016

A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))

https://www.beynensonlaw.com/case-law/a-c-med-p-c-v-ameriprise-ins-co-2016-ny-slip-op-51787u/

Court: Appellate Term, Second Department
Decided: December 7, 2016
Citation: 2016 NY Slip Op 51787(U) · 54 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)

Cite as

A.C. Med., P.C. v Ameriprise Ins. Co., 54 Misc 3d 127(A), 2016 NY Slip Op 51787(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense. For one claim, the EUO request exceeded the 15-business-day deadline in 11 NYCRR 65-3.5 (b), reducing the time to pay or deny under 11 NYCRR 65-3.8 (l). The insurer then failed to deny timely after the second nonappearance under 11 NYCRR 65-3.8 (a) (1). For the remaining claims, the first scheduling letter was mailed more than 30 calendar days after receipt, rendering it a nullity that did not toll the denial deadline. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion and the grant of the provider's cross motion.

Reported in New York Official Reports at A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))

[*1]

A.C. Med., P.C. v Ameriprise Ins. Co.

2016 NY Slip Op 51787(U) [54 Misc 3d 127(A)]

Decided on December 7, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 7, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : ALIOTTA, J.P., PESCE and SOLOMON, JJ.
2015-1171 K C

A.C. Medical, P.C., as Assignee of Yaadmarie Silva, Respondent,
against
Ameriprise Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 24, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered April 24, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Contrary to defendant’s sole argument on appeal, that it was entitled to summary judgment dismissing the complaint based upon plaintiff’s nonappearance at duly scheduled EUOs, defendant failed to establish that it had timely (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and properly denied the claims. Pursuant to the no-fault regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). Since defendant received the claim in the amount of $403.58 on August 28, 2012 and mailed an EUO scheduling letter to plaintiff on September 26, 2012, defendant’s time to pay or deny that claim was reduced by the number of days that the EUO request was late (see 11 NYCRR 65-3.8 [l]). However, defendant did not timely deny that claim after plaintiff had failed to appear for the second scheduled EUO (see 11 NYCRR 65-3.8 [a] [1]). With respect to the remaining claims, because defendant did not mail its first EUO scheduling letter to plaintiff within 30 calendar days of receiving those claims, the scheduling letter was rendered a nullity by its untimeliness (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]) and did not toll defendant’s time to pay or deny those claims. Consequently, defendant failed to establish that it had timely denied the remaining claims and, thus, defendant is precluded from interposing its defense (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]) that plaintiff had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. [*2]Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

Aliotta, J.P., Pesce and Solomon, JJ., concur.

Decision Date: December 07, 2016

Legal questions (2)

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.

No-show: coverage defense or precludable?

Open 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: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer precluded from its EUO no-show defense because one claim was not denied in time after the second nonappearance, and late initial requests on the others were nullities that did not toll the 30 days.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

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 did not show its requests met the regulatory timing, follow-up or justification requirements (rules on the question, but another ground decided the case)

Held the initial EUO requests late: one went out beyond 15 business days, shortening the time to deny, and the others more than 30 days after receipt, making them nullities that did not toll.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (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.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) FollowedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U)) FollowedThe insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
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

A label shows how the later decision treated this one.

Chiropractic Exam Works, P.C. v Sentry Cas. Co. (2021 NY Slip Op 51125(U)) FollowedAn insurer that repudiates liability for a claim cannot then require compliance with the policy's EUO provision.
Sama Physical Therapy v MVAIC (2019 NY Slip Op 29218)MVAIC's defense that an injured claimant is not a qualified person is subject to preclusion under the no-fault time limits.
New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.

Similar decisions

Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion.
Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U))The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims.
Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits.
Clove Med. Supply, Inc. v Ameriprise Ins. Co. (2014 NY Slip Op 50357(U))The insurer failed to establish timely EUO requests because the record omitted the dates it received the provider's claims.
K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.