July 6, 2018

Body Acupuncture Care, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51362(U))

https://www.beynensonlaw.com/case-law/body-acupuncture-care-p-c-v-erie-ins-co-of-n-y-2018-ny-slip-op51362u/

Court: Civil Court of the City of New York, Kings County
Judge: Odessa Kennedy, J.
Decided: July 6, 2018
Citation: 2018 NY Slip Op 51362(U)
Posture: Summary judgment
Issues: IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Body Acupuncture Care, P.C. v Erie Ins. Co. of N.Y., 2018 NY Slip Op 51362(U) (Civ Ct, Kings County 2018)

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's IME notice failed to plainly advise the assignor of reimbursement for lost earnings and reasonable transportation costs. The Civil Court, Kings County, denied both sides' summary judgment motions. Under 11 NYCRR 65-3.5 (e), the insurer had to inform the applicant of reimbursement when scheduling the IME. The notice merely recited the regulation rather than affirmatively stating the applicant's entitlement, and placed the language in smaller, very fine italicized print that was potentially unreadable. The unexplained presentation also created potential ambiguity about the language's origin. The provider failed to establish that the claims were not denied within 30 days or that timely denials were conclusory, vague or legally meritless under Insurance Law § 5106 (a).

Reported in New York Official Reports at Body Acupuncture Care, P.C. v Erie Ins. Co. of N.Y. (2018 NY Slip Op 51362(U))

Body Acupuncture Care, P.C., As Assignee of Ghislaine Jean Mary, Plaintiff,
against
Erie Insurance Company of New York, Defendant.

722422/16

For Plaintiff:
Emilia I. Rutigliano Esq.
Law Offices of Emilia I. Rutigliano, PC.
1733 Sheepshead Bay Rd., Suite 11
Brooklyn, NY 11235

For Defendant:
Robyn Brilliant Esq.
333 W. 39th St, Suite 400
New York NY 10018-1410

Odessa Kennedy, J.

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Affirmation in Opposition 3

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for summary judgment pursuant to CPLR 3212. Defendant cross-moves for summary judgment seeking dismissal of the complaint. After oral argument, the Court sua sponte vacates order dated November 17, 2017, in place of the following.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that the no-fault claim forms underlying the action were submitted to the defendant, and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 911 N.Y.S.2d 907 [2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly denied.

The basis of Defendant’s cross motion is the failure of plaintiff’s assignor to attend IMES, which constitutes violation of a condition precedent to coverage. (See Stephen Fogel Psychological P.C. v Progressive Casualty Ins. Co., 35 AD3d 720 [2d Dept 2006], affg 7 Misc 3d 18 [App. Term, 2d Dept 2004]). However, to establish proper denial, the insurer must inform the applicant at the time the IME is scheduled, that the applicant will be reimbursed for any lost earnings and reasonable transportation expenditure incurred in attending the IME (11 NYCRR 65-3.5 (e)). Thus, the insurer has the burden to demonstrate that the IME notice contained the requisite reimbursement language. (See Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Business v Professional Health Radiology, 143 AD3d 536, 39 N.Y.S.3d 428 [1st Dept 2016]).

In the case at bar, defendant failed to establish that the IME notice sufficiently apprised the assignor of such reimbursement. The reimbursement language merely recites the governing statute which states ” the insurer shall inform the applicant” of the right to reimbursement. The notice is devoid of a plain, affirmative statement, that the applicant has the right to receive such reimbursement.

The reimbursement language is further obscured in very fine italicized print, which is inexplicably, smaller than the print used in the remainder of the letter, and potentially unreadable, thus facially deficient.

Moreover, the presentation of the language in the notice, potentially creates ambiguity and confusion regarding the origin of the language. There is no explanation in the notice, that the reimbursement language is recitation of statute or a legal requirement. The only reference to the governing statute, is that the letter ‘e’, immediately appears before the reimbursement language, presumably signifying the end of the citation, 11 NYCRR 65-3.5 (e). However, said letter would be meaningless, if not perplexing, to applicants who lack the requisite legal training to decode its meaning.

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: July 6, 2018
ODESSA KENNEDY
Judge of the Civil Court

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider did not establish that the insurer failed to deny the claims within 30 days or that timely denials were conclusory, vague or without merit, so its motion was denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 did not show its requests met the regulatory timing, follow-up or justification requirements

Held the insurer failed to establish its IME no-show defense because the IME notice did not plainly tell the assignor of the right to reimbursement of lost earnings and travel expenses, reciting the regulation in tiny, confusing print.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (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.

Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2004 NY Slip Op 24527)A proven failure to attend a reasonably requested preclaim IME, timely raised in a denial, does not alone warrant dismissal.
Matter of Unitrin Advantage Ins. Co. Kemper A. Unitrin Bus. v Professional Health Radiology (2016 NY Slip Op 06767) FollowedThe insurer failed to establish that its IME letters contained the required notice of reimbursement for lost earnings and transportation.

Similar decisions

Active Care Med. Supply, Corp. v American Tr. Ins. Co. (2018 NY Slip Op 51408(U))The insurer's attorney affirmation failed to establish nonappearance on the scheduled EUO date.
Boai Zhong Yi Acupuncture Servs. PC v General Assur. Ins Co. (2005 NY Slip Op 50329(U))The provider obtained summary judgment because two denials were late and the third relied on an unavailable IME nonappearance defense.
East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51229(U))The insurer established IME nonappearance but failed to show tolling of the denial period for its fee-schedule reductions.
Wellness Plaza Acupuncture, P.C. v Erie Ins. (2017 NY Slip Op 51729(U))The provider failed to establish its prima facie case, and the insurer failed to prove timely mailing of EUO nonappearance denials.
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NYSlip Op 51935(U))The provider's EUO objections were unpreserved, and the insurer established timely notices and denials and the provider's nonappearance.