November 13, 2020
A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))
https://www.beynensonlaw.com/case-law/a-c-med-p-c-v-ameriprise-ins-co-2020-ny-slip-op-51376u/
- Decided
- November 13, 2020
- Citation
- 2020 NY Slip Op 51376(U) · 69 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? (see the maps)
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 A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))
| A.C. Med., P.C. v Ameriprise Ins. Co. |
| 2020 NY Slip Op 51376(U) [69 Misc 3d 144(A)] |
| Decided on November 13, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-2565 K C
against
Ameriprise Insurance Company, Appellant.
Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered November 8, 2018. The order denied defendant’s 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Defendant contends that its initial EUO scheduling letter tolled defendant’s time to pay or deny all of the claims at issue (see 11 NYCRR 65-3.5 [b]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), that the toll was maintained by timely follow-up scheduling letters (see 11 NYCRR 65-3-6 [b) and that defendant had timely denied plaintiff’s claims (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Upon a review of the record, we find that defendant’s motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claims after plaintiff had failed to appear at both an initial and a follow-up EUO.
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020
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.
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 failed to establish as a matter of law that it timely denied the claims after the provider failed to appear at both the initial and follow-up EUOs, so summary judgment was denied.
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.
Cited in this decision
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U))A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- 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.
Similar decisions
- Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U))An EUO nonappearance denial need not list the dates of the EUOs the provider failed to attend.
- A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U))The insurer was precluded from asserting an EUO nonappearance defense because it failed to send the provider a required delay letter.
- 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.
- 21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U))An insurer need not give objective reasons for EUO requests to establish entitlement to summary judgment based on nonappearance.
- 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.