November 1, 2016
Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51610(U))
https://www.beynensonlaw.com/case-law/art-of-healing-medicine-p-c-v-utica-mut-ins-co-2016-ny-slip-op51610u/
- Decided
- November 1, 2016
- Citation
- 2016 NY Slip Op 51610(U) · 53 Misc 3d 147(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 Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51610(U))
| Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. |
| 2016 NY Slip Op 51610(U) [53 Misc 3d 147(A)] |
| Decided on November 1, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2716 Q C
against
Utica Mutual Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 3, 2013. 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) or, with respect to the sixth cause of action, on the ground of lack of medical necessity.
Contrary to plaintiff’s arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Plaintiff’s remaining contentions are either academic in light of the foregoing or, with respect to the defense of lack of medical necessity, raised for the first time on appeal and, therefore, not properly before this court (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016
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 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 appellate challenge and held the insurer's proof gave rise to a presumption that both the EUO scheduling letters and the denial forms were timely mailed.
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 the assignor's failure to appear, entitling it to summary judgment.
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.
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's proof raised a presumption that its denial forms on the EUO no-show ground were timely mailed, supporting dismissal.
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.
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.
- 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.
- NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)The insurer's denial was fatally defective because it omitted required information and named the assignor as the benefits applicant.
Similar decisions
- ABC Physical Therapy, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51614(U))The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed.
- Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))An assignor's appearance at an EUO is a condition precedent to the insurer's liability under the policy.
- Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))The insurer established timely EUO and IME notices, the assignor's nonappearance and timely denials based on those failures.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2009 NY Slip Op 52067(U))The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims.
- Ss Med. Care, P.C. v Hartford Ins. Co. (2013 NY Slip Op 51032(U))The insurer established mailing of the EUO scheduling letters and denials, defeating the provider's sole appellate challenge to dismissal.