June 27, 2012
Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))
https://www.beynensonlaw.com/case-law/colonia-med-p-c-v-state-farm-mut-auto-ins-co-2012-ny-slip-op51273u/
- Decided
- June 27, 2012
- Citation
- 2012 NY Slip Op 51273(U) · 36 Misc 3d 129(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 Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51273(U))
| Colonia Med., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2012 NY Slip Op 51273(U) [36 Misc 3d 129(A)] |
| Decided on June 27, 2012 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-3255 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Peter Paul Sweeney, J.), entered October 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint.
Plaintiff argues that defendant is not entitled to summary judgment because defendant failed to establish that it had timely mailed examination under oath (EUO) scheduling letters and denial of claim forms. In support of its motion for summary judgment, defendant submitted affidavits by its special investigative unit team manager, mail room employee and bulk mail vendor, respectively, which were sufficient to establish that the EUO scheduling letters and denial of claim forms, which denied plaintiff’s claims on the ground of plaintiff’s failure to appear for scheduled EUOs, had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb [*2]Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). An appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As plaintiff’s remaining contention lacks merit (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), the order is affirmed.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: June 27, 2012
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.
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
Held the insurer established timely mailing of denial forms based on the EUO nonappearance, rejecting the provider's argument that the denials were not shown timely mailed.
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
Held affidavits of the SIU team manager, mail room employee and bulk mail vendor sufficient to establish timely mailing of the EUO scheduling letters and denial forms, rejecting the provider's challenge.
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.
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 the EUO scheduling letters, rejecting the provider's challenge, and affirmed summary judgment on the EUO no-show defense.
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.
- 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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- 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.
- Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 52023(U)) FollowedA no-fault policy is construed to contain the mandatory EUO provision even if the policy omits it.
Similar decisions
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51269(U))The insurer proved timely mailing of EUO notices and denials, and the provider's challenge to nonappearance proof was improperly raised.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.
- Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))The insurer's affidavits established timely mailing of EUO scheduling letters and the denial, and the provider's failure to attend either EUO. In the assigned no-fault benefits action, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.