July 15, 2022
Chi P&L Acupuncture, P.C. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50768(U))
https://www.beynensonlaw.com/case-law/chi-pl-acupuncture-p-c-v-geico-gen-ins-co-2022-ny-slip-op50768u/
- Decided
- July 15, 2022
- Citation
- 2022 NY Slip Op 50768(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show: coverage defense or precludable? (see the maps)
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 Chi P&L Acupuncture, P.C. v GEICO Gen. Ins. Co. (2022 NY Slip Op 50768(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
GEICO General Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered January 23, 2019. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to defendant’s contention, defendant’s motion failed to establish that defendant had timely denied plaintiff’s claims after plaintiff failed to appear at both an initial and a follow-up EUO (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for summary judgment dismissing the complaint was properly denied (see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]). We reach no other issue.
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 15, 2022
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer failed to show it timely denied the claims after the second EUO nonappearance, so it did not demonstrate it was not precluded from raising the no-show defense.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340) FollowedAn untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
- Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Similar decisions
- EA Chiropractic Diagnostics, P.C. v GEICO Ins. (2022 NY Slip Op 50557(U))The insurer failed to establish timely denials after the provider missed an initial and a follow-up EUO. The insurer appealed only the denial of summary judgment on claims for services rendered to three of the six assignors.
- Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
- NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim.
- Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
- Silver Acupuncture, P.C. v GEICO (Gov Employees) (2017 NY Slip Op 51876(U))The insurer failed to prove timely denial after EUO nonappearances, and the provider failed to establish its prima facie case.