December 13, 2019

Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U))

https://www.beynensonlaw.com/case-law/aries-chiropractic-p-c-v-ameriprise-ins-co-2019-ny-slip-op-52064u/

Court: Appellate Term, Second Department
Decided: December 13, 2019
Citation: 2019 NY Slip Op 52064(U) · 66 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Aries Chiropractic, P.C. v Ameriprise Ins. Co., 66 Misc 3d 130(A), 2019 NY Slip Op 52064(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.

An EUO nonappearance denial need not list the dates of the EUOs the provider failed to attend. The provider appealed summary judgment dismissing its assigned no-fault benefits complaint, arguing that the insurer's denial form was deficient because those dates were omitted. The Appellate Term, Second Department, rejected the argument under 11 NYCRR 65-3.4 (c) (11) and the prescribed NF-10 form: if the Department of Financial Services intended to require the scheduled dates, it would have said so. The order granting the insurer's motion was affirmed.

Reported in New York Official Reports at Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U))

[*1]

Aries Chiropractic, P.C. v Ameriprise Ins. Co.

2019 NY Slip Op 52064(U) [66 Misc 3d 130(A)]

Decided on December 13, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 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
2018-1596 K C

Aries Chiropractic, P.C., as Assignee of Max Guzhva, Appellant,
against
Ameriprise Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson), entered July 5, 2018. The order granted defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant’s denial of claim form did not need to set forth the dates of the EUOs for which plaintiff had failed to appear. “Had it been the intent of the Department of [Financial Services] to require the carrier to set forth [the dates of the scheduled EUOs] in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided” (A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; cf. Unitrin Advantage Ins. Co. v All of NY, Inc., 158 AD3d 449 [1st Dept 2018]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019

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.

No-show: coverage defense or precludable?

Open the full map

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 to the EUO no-show denial, holding the denial of claim form did not need to state the dates of the EUOs the provider failed to attend.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

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. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) FollowedAn insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635) FollowedAn insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.
Unitrin Advantage Ins. Co. v All of NY, Inc. (2018 NY Slip Op 00810) Contrasted (cf., but see)The insurer's EUO defense failed for four claims because of untimely scheduling notices or insufficient denial grounds.

Cited by

A label shows how the later decision treated this one.

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).

Similar decisions

A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))The insurer's summary judgment motion based on EUO nonappearance was denied because timely denials were not established.
Actual Chiropractic, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51435(U))An EUO nonappearance denial is not conclusory or vague as a matter of law merely because it omits the scheduled examination dates.
Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U))An insurer need not set forth objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))The insurer's attorney established through personal knowledge that the provider failed to appear for both duly scheduled EUOs. The provider's sole appellate argument challenged proof of nonappearance.