March 7, 2016
Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))
https://www.beynensonlaw.com/case-law/contemporary-acupuncture-p-c-v-allstate-ins-co-2016-ny-slip-op50464u/
- Decided
- March 7, 2016
- Citation
- 2016 NY Slip Op 50464(U) · 51 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (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 Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))
| Contemporary Acupuncture, P.C. v Allstate Ins. Co. |
| 2016 NY Slip Op 50464(U) [51 Misc 3d 132(A)] [51 Misc 3d 132(A)] |
| Decided on March 7, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 March 7, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MARANO, P.J., IANNACCI and GARGUILO, JJ.
2014-248 S C
against
Allstate Insurance Company, Appellant.
Appeal from an order of the District Court of Suffolk County, Sixth District (Janine A. Barbera-Dalli, J.), dated December 11, 2013. The order denied 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, defendant appeals from an order of the District Court which denied defendant’s motion for summary judgment dismissing the complaint.
Defendant’s motion for summary judgment dismissing the complaint was based on the alleged failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs). Upon a review of the record, we find that defendant failed to establish a prima facie showing of its entitlement to summary judgment. Among other things, defendant failed to establish as a matter of law that the EUO notices and the denial of claim forms at issue had been properly and timely mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050 [2015]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]). Consequently, defendant’s motion was properly denied.
Accordingly, the order is affirmed.
Marano, P.J., Iannacci and Garguilo, JJ., concur.
Decision Date: March 07, 2016
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to establish as a matter of law that the EUO notices and denial of claim forms had been properly and timely mailed.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (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 failed to prove the scheduling letters were mailed or properly addressed
Denied the insurer summary judgment on the EUO no-show because, among other things, it did not prove that the EUO notices had been properly and timely mailed.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer's EUO no-show motion failed in part because it did not establish that its denial of claim forms, like the EUO notices, had been properly and timely mailed.
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.
- Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. (2015 NY Slip Op 03340) FollowedThe insurers failed to establish timely and proper mailing of denials based on missing verification and EUO nonappearance.
- 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.
- Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins.Co. (2009 NY Slip Op 50242(U)) FollowedThe insurer's cross motion for summary judgment on IME nonappearance was upheld upon sufficient proof of mailing of the requests.
Cited by
A label shows how the later decision treated this one.
- Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50794(U)) FollowedThe insurer failed to prove proper and timely mailing of denials, defeating summary judgment on its medical-necessity defense.
- Big Apple Delivery Supply Corp. v Plymouth Rock Assur. Corp. of N.Y. (2026 NY Slip Op 50795(U))The insurer failed to prove proper and timely mailing of its denial supporting the lack-of-medical-necessity defense.
- Exultant Med. Diagnostics, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50496(U))The insurer failed to establish proper and timely mailing of its medical-necessity denials.
Similar decisions
- Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50835(U))The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action.
- 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, Approach, P.C. v Allstate Ins. Co. (2015 NY Slip Op 50318(U))The insurer failed to establish timely IME requests because the record did not show when it received the provider's claims.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
- Great Health Care Chiropractic, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50311(U))The insurer failed to prove timely mailing of the initial and follow-up EUO letters, defeating summary judgment on nonappearance.