October 11, 2019

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))

https://www.beynensonlaw.com/case-law/acupuncture-approach-p-c-v-global-liberty-ins-co-of-ny-2019-ny-slip-op51631u/

Court: Appellate Term, Second Department
Decided: October 11, 2019
Citation: 2019 NY Slip Op 51631(U) · 65 Misc 3d 135(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY, 65 Misc 3d 135(A), 2019 NY Slip Op 51631(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 at trial that the initial and follow-up EUO scheduling letters were timely and properly mailed. The parties stipulated that mailing of the assignor's EUO notices was the sole issue in the nonjury trial. The only witness was an insurer employee who testified about its mailing policies and procedures. Contrary to the Civil Court's finding, that proof established proper and timely mailing. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for entry of judgment in favor of the insurer dismissing the complaint.

Reported in New York Official Reports at Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51631(U))

[*1]

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY

2019 NY Slip Op 51631(U) [65 Misc 3d 135(A)]

Decided on October 11, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 11, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1600 K C

Acupuncture Approach, P.C., as Assignee of Darrell Johnson, Respondent,
against
Global Liberty Ins. Co. of NY, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered August 15, 2017. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,342.08.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019

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.

Proof of mailing

Open the full map

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

Held at trial that an employee's testimony on the insurer's mailing policies and procedures established timely and proper mailing of the initial and follow-up EUO letters, contrary to the trial court's finding.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

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 insurer established timely and proper mailing of the initial and follow-up EUO scheduling letters, the sole stipulated trial issue, so judgment for the provider was reversed and the complaint dismissed.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

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.

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.

Similar decisions

Mind & Body Acupuncture, P.C. v Global Liberty Ins. Co. of NY (2017 NY Slip Op 50957(U))The insurer failed to establish timely mailing of the initial and follow-up EUO scheduling letters.
Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2018 NY Slip Op 51601(U))The insurer defeated an IME notice-address challenge by proving that scheduling letters were also mailed to the assignor's attorney.
Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.