September 19, 2012
All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))
https://www.beynensonlaw.com/case-law/all-boro-psychological-servs-p-c-v-hartford-ins-co-2012-ny-slip-op51849u/
- Decided
- September 19, 2012
- Citation
- 2012 NY Slip Op 51849(U) · 37 Misc 3d 126(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))
| All Boro Psychological Servs., P.C. v Hartford Ins. Co. |
| 2012 NY Slip Op 51849(U) [37 Misc 3d 126(A)] |
| Decided on September 19, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-308 K C.
against
Hartford Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered October 8, 2010, deemed from a judgment of the same court entered November 4, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 8, 2010 order granting defendant’s motion for summary judgment, dismissed the complaint.
ORDERED that the judgment is affirmed, without 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 granted defendant’s motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Contrary to plaintiff’s contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been 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]), and that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). An appearance at an EUO is a condition precedent to [*2]an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d 720). As plaintiff’s remaining contention lacks merit, the judgment is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: September 19, 2012
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.
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
Rejected the provider's challenge and held the insurer's affidavits established the EUO no-show denial was timely mailed.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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
Rejected the provider's contentions and held the insurer's affidavits established timely mailing of both the EUO scheduling letters and the denial of claim form.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
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 the EUO scheduling letters and that the provider failed to appear at either scheduled EUO, a condition precedent to liability.
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.
- 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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An 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.
- W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U))The insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.
Similar decisions
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))The insurer's affidavits established timely mailing of EUO scheduling letters and the denial, and the provider's failure to attend either EUO. In the assigned no-fault benefits action, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50307(U))The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline.
- Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.
- Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms.