June 11, 2012
Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 51058(U))
https://www.beynensonlaw.com/case-law/concourse-chiropractic-pllc-v-fiduciary-ins-co-of-am-2012-ny-slip-op51058u/
- Court
- Appellate Term, Second Department
- Decided
- June 11, 2012
- Citation
- 2012 NY Slip Op 51058(U) · 35 Misc 3d 146(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 1 later decisions (see Cited by)
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 Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 51058(U))
| Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. |
| 2012 NY Slip Op 51058(U) [35 Misc 3d 146(A)] |
| Decided on June 11, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and ALIOTTA, JJ
2010-2551 Q C.
against
Fiduciary Insurance Company of America, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 14, 2010, deemed from a judgment of the same court entered September 21, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 14, 2010 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,310.94.
ORDERED that the judgment is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).
The record establishes that, on December 2, 2008, defendant requested that plaintiff’s assignor appear for an examination under oath (EUO) on January 8, 2009. Plaintiff’s assignor failed to appear for the EUO. However, defendant did not mail a second request until February 12, 2009. As this follow-up request was untimely (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), defendant failed to toll the 30-day claim determination period (Insurance [*2]Department Regulations [11 NYCRR] § 65-3.8 [a] [1]), and, as a result, defendant’s denial of plaintiff’s claim was untimely. Consequently, the Civil Court properly denied defendant’s cross motion for summary judgment, which was based upon the defense that plaintiff’s assignor had failed to appear for an EUO. Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.
In light of the foregoing, we need not reach the parties’ remaining contentions.
Accordingly, the judgment is affirmed.
Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 2012
Legal questions (2)
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: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the EUO no-show defense failed because the untimely follow-up EUO request did not toll the 30-day period, so the denial was untimely.
Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 145 (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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the EUO no-show defense failed because the second EUO request was mailed more than the permitted time after the first nonappearance, so it did not toll the time to deny.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.
Cited by
A label shows how the later decision treated this one.
- Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 27189) DistinguishedThe insurer's one-day delay in sending a follow-up EUO request did not excuse the provider's four nonappearances on this record.
- Avicenna Med. Arts, PLLC v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50382(U)) FollowedThe insurer's untimely follow-up EUO requests and late denials precluded its EUO nonappearance defense to the provider's first six claims.
- Jiang Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50945(U))The insurer's IME no-show defense failed because the examinations were not timely scheduled under 11 NYCRR 65-3.5 (d).
Similar decisions
- Concourse Chiropractic, PLLC v State Farm Mut. Ins. Co. (2013 NY Slip Op 52225(U))The insurer proved the provider's EUO nonappearances but failed to establish timely payment of a separate claim.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U))The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U))Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
- Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U))The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.