May 13, 2022
ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50448(U))
https://www.beynensonlaw.com/case-law/ach-chiropractic-p-c-v-nationwide-ins-2022-ny-slip-op-50448u/
- Decided
- May 13, 2022
- Citation
- 2022 NY Slip Op 50448(U) · 75 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (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 ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50448(U))
| ACH Chiropractic, P.C. v Nationwide Ins. |
| 2022 NY Slip Op 50448(U) [75 Misc 3d 132(A)] |
| Decided on May 13, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DONNA-MARIE E. GOLIA, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-156 K C
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J.Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 26, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
In its submissions to this court, plaintiff’s sole contention with respect to defendant’s cross motion is that defendant did not prove that plaintiff failed to appear at the EUOs. This argument is without merit, as defendant submitted affidavits by its attorneys who were scheduled to conduct the EUOs, as well as certified transcripts of the EUOs, which were sufficient to establish that element of defendant’s case (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
Plaintiff’s contention that defendant failed to timely deny the claims at issue was raised for the first time at the oral argument of this appeal, and is therefore not properly before us and has not been considered (see Opalinski v City of New York, 164 AD3d 1354 [2018]).
Accordingly, the order is affirmed.
GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 13, 2022
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.
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 affidavits of the attorneys scheduled to conduct the EUOs and the certified EUO transcripts sufficed to establish the provider's nonappearance.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Pavlova v Nationwide Ins. (2021 NY Slip Op 50213(U)) FollowedAn assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor.
- TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U)) FollowedThe insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.
Similar decisions
- First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 51252(U))The insurer's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial.
- PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U))The insurer's counsel affirmations and EUO transcripts established the provider's failure to appear for EUOs. In this action for assigned first-party no-fault benefits, the provider appealed the denial of its summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
- Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
- Remedy Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50935(U))The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it.
- NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim.