April 7, 2014
Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))
https://www.beynensonlaw.com/case-law/active-chiropractic-p-c-v-praetorian-ins-co-2014-ny-slip-op50634u/
- Decided
- April 7, 2014
- Citation
- 2014 NY Slip Op 50634(U) · 43 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 6 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 Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))
| Active Chiropractic, P.C. v Praetorian Ins. Co. |
| 2014 NY Slip Op 50634(U) [43 Misc 3d 134(A)] |
| Decided on April 7, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., PESCE and ALIOTTA, JJ
2012-383 K C.
against
Praetorian Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 13, 2012. The order, insofar as appealed from as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied its cross motion for summary judgment dismissing the complaint. Defendant established that it had timely mailed (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., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) letters and follow-up letters scheduling examinations under oath (EUOs), and the denial of claim form. Defendant also submitted certified transcripts of the scheduled EUOs, which demonstrated that plaintiff’s assignor had failed to appear. Plaintiff does not claim to have responded in any way to the EUO requests. Consequently, defendant demonstrated that plaintiff had failed to satisfy a condition precedent to defendant’s liability on the insurance policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
We note that the Civil Court improvidently exercised its discretion in excluding from consideration the affidavit of Edward Belfield on the ground that the affidavit, while notarized, was not accompanied by a certificate of conformity required by CPLR 2309 (c), as the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012] see also Gonzalez v Perkan Concrete Corp., 110 AD3d 955 [2013] Bey v Neuman, 100 AD3d 581 [2012] Smith v Allstate Ins. Co., 38 AD3d 522 [2007]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross
motion for summary judgment dismissing the complaint is granted. Weston, J.P., Pesce
and Aliotta, JJ., concur.
[*2]
Decision Date: April 07, 2014
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 timely mailing of initial and follow-up EUO letters and nonappearance by certified transcripts; the provider never responded, so the condition precedent was unmet.
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 its denial of claim form, together with the EUO letters, supporting its 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 established timely mailing of the EUO scheduling letters and denial, and that an out-of-state affidavit lacking a certificate of conformity should not have been excluded.
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) FollowedThe 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) FollowedAn 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.
Cited by (12)
A label shows how the later decision treated this one.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
- Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2018 NY Slip Op 50774(U)) FollowedThe insurer's summary judgment dismissing the provider's claims for EUO nonappearance was affirmed on appeal.
- AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U)) FollowedThe insurer established proper mailing of its denial forms and the assignor's failure to appear for EUOs. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits on the EUO nonappearance defense.
- Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U)) FollowedThe insurer's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed.
- New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) FollowedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.
- Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied.
- Healing Art Acupuncture, P.C. v Amica Mut. Ins. Co. (2015 NY Slip Op 50078(U))An out-of-state affidavit's missing certificate of conformity may be disregarded where no substantial right is prejudiced.
- Charles Deng Acupuncture, P.C. v Titan Ins. Co. (2016 NY Slip Op 26211)Certified EUO no-show transcripts were admissible as business records at trial and established the provider's nonappearances.
- Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))The defendant established lack of coverage, and its out-of-state affidavit's missing certificate of conformity was not fatal.
Similar decisions
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U))The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
- Active Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50200(U))An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action.
- Active Chiropractic, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 51850(U))The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding.
- BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground.