November 6, 2020
Charles Deng Acupuncture, P.C. v Travelers Ins. Co. (2020 NY Slip Op 51320(U))
https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-travelers-ins-co-2020-ny-slip-op51320u/
- Decided
- November 6, 2020
- Citation
- 2020 NY Slip Op 51320(U) · 69 Misc 3d 138(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 Charles Deng Acupuncture, P.C. v Travelers Ins. Co. (2020 NY Slip Op 51320(U))
| Charles Deng Acupuncture, P.C. v Travelers Ins. Co. |
| 2020 NY Slip Op 51320(U) [69 Misc 3d 138(A)] |
| Decided on November 6, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ
2018-1324 K C
against
Travelers Insurance Company, Appellant.
Law Office of Aloy O. Ibuzor (Michelle O’Meally-Rogers of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 28, 2018, deemed from a judgment of that court entered May 18, 2018 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 28, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,094.35.
ORDERED that the judgment is reversed, with $30 costs, the order dated March 28, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff’s cross motion for summary judgment. A judgment was subsequently entered on May 18, 2018, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
Defendant established that initial and follow-up letters scheduling an EUO had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff’s assignor had failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that the claims had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; [*2]Greenway Med. Supply Corp. v Travelers Ins. Co., 58 Misc 3d 131[A], 2017 NY Slip Op 51765[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the judgment is reversed, the order dated March 28, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion is denied.
ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 6, 2020
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 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 established timely mailing of initial and follow-up EUO scheduling letters and the assignor's failure to appear on either date, and plaintiff raised no triable issue.
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 established that the claims were timely denied on the EUO no-show ground as part of its entitlement to 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.
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 (rules on the question, but another ground decided the case)
Held the insurer established that the initial and follow-up EUO scheduling letters were timely mailed and the claims timely denied.
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.
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.
- Greenway Med. Supply Corp. v Travelers Ins. Co. (2017 NY Slip Op 51765(U)) FollowedThe insurer's attorney's affirmation established the provider's EUO nonappearance, and its affidavits proved timely mailing of the denial.
Similar decisions
- Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51451(U))The insurer's affidavits failed to establish timely mailing, and the provider's affidavit failed to establish its prima facie case.
- Charles Deng Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2017 NY Slip Op 51834(U))The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider.
- Charles Deng Acupuncture, P.C. v ELRAC, Inc. (2018 NY Slip Op 50774(U))The insurer's summary judgment dismissing the provider's claims for EUO nonappearance was affirmed on appeal.
- Acupuncture Now, P.C. v Travelers Ins. Co. (2019 NY Slip Op 51255(U))EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling.
- Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 50402(U))The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident.