December 22, 2017

Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))

https://www.beynensonlaw.com/case-law/careful-complete-med-p-c-v-delos-ins-co-2017-ny-slip-op-51867u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51867(U) · 58 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Careful Complete Med., P.C. v Delos Ins. Co., 58 Misc 3d 141(A), 2017 NY Slip Op 51867(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 EUO requests were nullities because the initial request was sent more than 30 days after receipt of the claims. Civil Court dismissed the provider's assigned no-fault action pursuant to an order granting the insurer summary judgment for the provider's failure to appear at scheduled EUOs. Following Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. and O & M Med., P.C. v Travelers Indem. Co., the Appellate Term, Second Department, concluded that the late requests could not support summary judgment on those claims. It reversed the judgment, vacated the underlying order and denied the insurer's motion.

Reported in New York Official Reports at Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))

[*1]

Careful Complete Med., P.C. v Delos Ins. Co.

2017 NY Slip Op 51867(U) [58 Misc 3d 141(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-896 K C

Careful Complete Medical, P.C., as Assignee of Lonnie Wheeler, Appellant,
against
Delos Insurance Company, Respondent.

Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant. McGivney and Kluger, P.C., for respondent (no brief filed).

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The judgment, entered pursuant to an order of that court entered May 23, 2012 granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court which dismissed the complaint pursuant to a prior order of that court granting a motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. [*2]Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the judgment is reversed, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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 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 not entitled to summary judgment because its initial EUO request was sent more than 30 days after it received the claims, making the requests nullities.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U))The insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U))The insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.

Similar decisions

Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U))The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims.
K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
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.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof.