June 23, 2016
City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U))
https://www.beynensonlaw.com/case-law/city-care-acupuncture-p-c-v-ameriprise-ins-co-2016-ny-slip-op51036u/
- Decided
- June 23, 2016
- Citation
- 2016 NY Slip Op 51036(U) · 52 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (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 City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U))
| City Care Acupuncture, P.C. v Ameriprise Ins. Co. |
| 2016 NY Slip Op 51036(U) [52 Misc 3d 135(A)] |
| Decided on June 23, 2016 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 23, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and ELLIOT, JJ.
2015-277 K C
against
Ameriprise Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiffs’ cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by providers to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, asserting that plaintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.
On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
As plaintiffs’ remaining contention lacks merit, the order is affirmed.
Pesce, P.J., Weston and Elliot, JJ., concur.
Decision Date: June 23, 2016
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.
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 that the assignor's appearance at the second EUO did not defeat the defense because the insurer showed the EUO was mutually rescheduled at the assignor's request so counsel could attend, and the assignor missed the rescheduled date.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U)) Contrasted (cf., but see)Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
Similar decisions
- Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51879(U))The insurer's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed.
- Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))The insurer established timely mailing of EUO scheduling letters and nonappearance at the scheduled EUOs for the six claims on appeal.
- City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))The insurer established timely, proper mailing of IME notices and the assignor's failure to appear.
- 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.
- Acupuncture Healthcare Plaza I, P.C. v Hertz Co. (2016 NY Slip Op 50865(U))The insurer failed to prove the assignor's EUO and IME nonappearances through witnesses with personal knowledge.