• 347-746-6001
  • contact@beynensonlaw.com
Beynenson Law
Beynenson Law
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
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)
Issues
EUO no-show Timeliness and preclusion Verification requests
Legal questions
No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)
Cite as
Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am., 35 Misc 3d 146(A), 2012 NY Slip Op 51058(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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.

The insurer's untimely follow-up EUO request failed to toll the claim-determination period, making its denial untimely. On December 2, 2008, the insurer requested an EUO for January 8, 2009; after nonappearance, it mailed its follow-up on February 12, 2009. The follow-up was untimely under 11 NYCRR 65-3.6 (b), so the 30-day period under 11 NYCRR 65-3.8 (a) (1) was not tolled. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion based on EUO nonappearance. The insurer did not challenge the provider's prima facie case, whose propriety the court did not decide, and remaining contentions were not reached.

Reported in New York Official Reports at Concourse Chiropractic, PLLC v Fiduciary Ins. Co. of Am. (2012 NY Slip Op 51058(U))

[*1]
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.
Decided on June 11, 2012

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-2551 Q C.
Concourse Chiropractic, PLLC as Assignee of DARRELL COLEMAN, Respondent, —

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.

No-show: coverage defense or precludable?

Open the full map

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.

  • Appellate DivisionApp Div 7
  • Appellate TermApp Term 404
  • Trial courtsTrial 46
2023, Appellate Division: 1 decision (1 Precludable: denial timely)2022, Appellate Division: 1 decision (1 Precludable: denial lacking)2020, Appellate Division: 1 decision (1 Precludable: denial timely)2015, Appellate Division: 1 decision (1 Precludable: denial lacking)2014, Appellate Division: 2 decisions (2 Precludable: denial timely)2009, Appellate Division: 1 decision (1 Precludable: denial lacking)2023, Appellate Term: 2 decisions (1 Precludable: denial lacking, 1 Precludable: denial timely)2022, Appellate Term: 31 decisions (12 Precludable: denial lacking, 19 Precludable: denial timely)2021, Appellate Term: 10 decisions (4 Precludable: denial lacking, 6 Precludable: denial timely)2020, Appellate Term: 24 decisions (4 Precludable: denial lacking, 20 Precludable: denial timely)2019, Appellate Term: 37 decisions (4 Precludable: denial lacking, 33 Precludable: denial timely)2018, Appellate Term: 23 decisions (8 Precludable: denial lacking, 15 Precludable: denial timely)2017, Appellate Term: 37 decisions (6 Precludable: denial lacking, 31 Precludable: denial timely)2016, Appellate Term: 26 decisions (12 Precludable: denial lacking, 14 Precludable: denial timely)2015, Appellate Term: 43 decisions (5 Precludable: denial lacking, 38 Precludable: denial timely)2014, Appellate Term: 33 decisions (13 Precludable: denial lacking, 20 Precludable: denial timely)2013, Appellate Term: 29 decisions (6 Precludable: denial lacking, 23 Precludable: denial timely)2012, Appellate Term: 38 decisions (12 Precludable: denial lacking, 26 Precludable: denial timely)2011, Appellate Term: 24 decisions (5 Precludable: denial lacking, 19 Precludable: denial timely)2010, Appellate Term: 8 decisions (5 Precludable: denial lacking, 3 Precludable: denial timely)2009, Appellate Term: 3 decisions (3 Precludable: denial lacking)2007, Appellate Term: 2 decisions (2 Precludable: denial lacking)2006, Appellate Term: 7 decisions (6 Precludable: denial lacking, 1 Precludable: denial timely)2005, Appellate Term: 10 decisions (9 Precludable: denial lacking, 1 Precludable: denial timely)2004, Appellate Term: 4 decisions (4 Precludable: denial lacking)2024, Appellate Term: 5 decisions (1 Precludable: denial lacking, 4 Precludable: denial timely)2025, Appellate Term: 5 decisions (2 Precludable: denial lacking, 3 Precludable: denial timely)2026, Appellate Term: 2 decisions (2 Precludable: denial timely)2003, Appellate Term: 1 decision (1 Precludable: denial lacking)2023, Trial courts: 1 decision (1 Precludable: denial timely)2022, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2021, Trial courts: 8 decisions (2 Precludable: denial lacking, 6 Precludable: denial timely)2020, Trial courts: 2 decisions (1 Precludable: denial lacking, 1 Precludable: denial timely)2019, Trial courts: 5 decisions (5 Precludable: denial lacking)2018, Trial courts: 1 decision (1 Precludable: denial timely)2017, Trial courts: 2 decisions (2 Precludable: denial timely)2016, Trial courts: 3 decisions (1 Precludable: denial lacking, 2 Precludable: denial timely)2014, Trial courts: 3 decisions (3 Precludable: denial timely)2013, Trial courts: 3 decisions (2 Coverage defense, 1 Precludable: denial timely)2012, Trial courts: 1 decision (1 Precludable: denial timely)2011, Trial courts: 2 decisions (2 Coverage defense)2009, Trial courts: 2 decisions (2 Precludable: denial timely)2008, Trial courts: 1 decision (1 Precludable: denial lacking)2006, Trial courts: 1 decision (1 Precludable: denial lacking)2005, Trial courts: 1 decision (1 Precludable: denial lacking)2004, Trial courts: 3 decisions (3 Precludable: denial lacking)2025, Trial courts: 2 decisions (2 Precludable: denial timely)2026, Trial courts: 1 decision (1 Precludable: denial timely)2015, Trial courts: 1 decision (1 Precludable: denial lacking)This decision
20052010201520202025
Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

No-show defense: insurer's proof

Open the full map

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.

  • Appellate DivisionApp Div 8
  • Appellate TermApp Term 741
  • Trial courtsTrial 88
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 4 decisions (4 Defense proved)2022, Appellate Term: 42 decisions (34 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 29 decisions (25 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 67 decisions (51 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 85 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 10 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 73 decisions (34 Defense proved, 13 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 43 decisions (28 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 13 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 1 Triable issue)2006, Appellate Term: 17 decisions (1 Defense proved, 7 Mailing not proved, 5 Requests not compliant, 4 Triable issue)2005, Appellate Term: 20 decisions (3 Defense proved, 10 Mailing not proved, 6 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 6 decisions (3 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

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.
Beynenson Law

Tech-driven New York no-fault collections for healthcare providers.

About the firm

Contact

  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
  • Contact form

Case Law

  • Search
  • No-Fault AI
  • New Decisions
  • Legal Questions
  • No-Fault Regulations

Arbitration Data

  • Arbitrator Scorecard
  • Award Volume
  • Arbitrator / Carrier Data
  • Provider / Carrier Data
  • Provider / Attorney Data
  • Arbitration Pro Extension

©2026 The Beynenson Law Firm, PC. Terms of Use Privacy Policy

Site by khrystev.dev

Attorney Advertising. Prior results do not guarantee a similar outcome. This website provides general information, not legal advice, and using it does not create an attorney-client relationship. Do not send confidential information through this site.