November 13, 2020

Avalon Radiology, P.C. v Global Liberty Ins. (2020 NY Slip Op 51374(U))

https://www.beynensonlaw.com/case-law/avalon-radiology-p-c-v-global-liberty-ins-2020-ny-slip-op-51374u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51374(U)
Posture: Trial
Issues: Verification requests Timeliness and preclusion Trial and evidence
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Avalon Radiology, P.C. v Global Liberty Ins., 2020 NY Slip Op 51374(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 insurer awaiting timely requested verification need not deny a claim even when it already has a ground for denial. At a nonjury trial limited to denial timeliness, the Civil Court directed a verdict for the provider without hearing the insurer's witness because IME nonappearance denials were mailed more than 30 days after nonappearance. The witness was prepared to testify that denials followed completion of a timely requested EUO within 30 days. Following Parisien v Citiwide Auto Leasing, the Appellate Term, Second Department, held that the denial period awaits all requested verification, reversed the order, granted the insurer's CPLR 4404 (b) motion to set aside the decision and judgment, and ordered a new trial.

Reported in New York Official Reports at Avalon Radiology, P.C. v Global Liberty Ins. (2020 NY Slip Op 51374(U))

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

Avalon Radiology, P.C., as Assignee of Blonde Vincent, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Law Office of Marina Josovich, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered June 25, 2018. The order denied defendant’s motion, pursuant to CPLR 4404 (b), to set aside a decision of that court dated June 23, 2017, made after a nonjury trial, and, in effect, a judgment of that court entered October 6, 2017, pursuant to the decision, awarding plaintiff the principal sum of $1,791.73.

ORDERED that the order is reversed, with $30 costs, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision dated June 23, 2017, and, in effect, the judgment entered October 6, 2017 pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

In this action by a provider to recover assigned first-party no-fault benefits, the sole issue for trial (see CPLR 3212 [g]) was whether defendant’s denial of claim forms were timely. At the nonjury trial, defendant’s claim representative was prepared to testify that defendant had timely requested plaintiff’s assignor to appear for an examination under oath (EUO) and had denied the claims at issue within 30 days after conducting that EUO. After examining the denial of claim forms, the Civil Court concluded that the denials could not be timely, as they were based upon the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), but were mailed more than 30 days after that failure to appear. Therefore, without taking testimony from defendant’s witness, the Civil Court directed a verdict in plaintiff’s favor. Defendant timely [*2]moved, pursuant to CPLR 4404 (b) to set aside the Civil Court’s decision. On October 6, 2017, a judgment awarding plaintiff the principal sum of $1,791.73 was entered and, by order entered June 25, 2018, the Civil Court denied defendant’s motion. Defendant appeals.

As this court has held, where an insurer timely requests verification, its time to pay or deny a claim does not begin to run until it has received all of the requested verification, including the conducting of an EUO, and the insurer need not deny a claim while it is waiting for requested verification even if it already has a basis to deny such claim (see Parisien v Citiwide Auto Leasing, 64 Misc 3d 132[A], 2019 NY Slip Op 51050[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Active Care Med. Supply Corp. v American Tr. Ins. Co., 61 Misc 3d 138[A], 2018 NY Slip Op 51584[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]; Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, the Civil Court’s holding that defendant was precluded from denying the claims based upon the assignor’s failure to appear for IMEs was erroneous. As no testimony was taken, the matter must be remitted to the Civil Court for a new trial.

Accordingly, the order is reversed, defendant’s motion, pursuant to CPLR 4404 (b), to set aside the decision of the Civil Court, and, in effect, the judgment entered pursuant thereto is granted, and the matter is remitted to the Civil Court for a new trial.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

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

Reversed a directed verdict that the IME no-show denials were untimely, holding the time to deny did not run while timely requested verification, including an EUO, was outstanding, so the preclusion ruling was erroneous and a new trial was required.

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.

Cited in this decision

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

Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51584(U)) FollowedThe insurer established lack of medical necessity through an unrebutted IME report despite insufficient proof of EUO nonappearance.
Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U)) FollowedThe insurer's IME nonappearance denials were timely because it issued them within 30 days after receiving requested written verification.

Similar decisions

Avalon Radiology, P.C. v Interboro Ins. Co. (2017 NY Slip Op 51722(U))The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense.
Westchester Radiology & Imaging, P.C. v Global Liberty Ins. Co. of N.Y. (2021 NY Slip Op 50641(U))The rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion.
Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51810(U))The provider's action was premature because timely verification requests remained unanswered when the action was commenced.
JCC Med., P.C. v Lancer Ins. Co. (2021 NY Slip Op 50485(U))Proof of timely first-class mailing of EUO scheduling letters makes proof that copies were also sent by certified mail unnecessary.
Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny.