March 21, 2023
Country-Wide Ins. Co. v Alicea (2023 NY Slip Op 01474)
https://www.beynensonlaw.com/case-law/country-wide-ins-co-v-alicea-2023-ny-slip-op-01474/
- Decided
- March 21, 2023
- Citation
- 2023 NY Slip Op 01474 · 214 AD3d 530
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 2 later decisions (see Cited by)
- 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 Country-Wide Ins. Co. v Alicea (2023 NY Slip Op 01474)
| Country-Wide Ins. Co. v Alicea |
| 2023 NY Slip Op 01474 [214 AD3d 530] |
| March 21, 2023 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Country-Wide Insurance Company,
Respondent, v Richard Alicea et al., Defendants, and SP Orthotic Surgical & Medical Supply, Inc., et al., Appellants. |
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Thomas Torto, New York, for respondent.
Order, Supreme Court, New York County (Melissa A. Crane, J.), entered August 27, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment declaring that plaintiff has no duty to defendants-appellants to pay no-fault claims based on the injured party’s failure to appear for examinations under oath (EUO), and permanently stayed any further action involving the injured party, unanimously reversed, on the law, without costs, the motion denied and the declaration and stay vacated.
Although plaintiff timely requested an EUO and subsequently issued a timely denial (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011]), the motion court erred in granting summary judgment. 11 NYCRR 65-3.5 (e) requires an EUO request be based on application of objective standards, and that the insurer must have a specific objective justification. Summary judgment is premature under CPLR 3212 where an insurer fails to provide a medical provider with its objective justification for requesting the EUO (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 473 [1st Dept 2022]). This Court has explained that the insurer’s reason for the EUO is essential for medical providers to oppose an insurer’s summary judgment motion, and that information is in the exclusive knowledge and control of the insurer (American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015]).
Plaintiff’s argument that the opposing defendants waived any objection to the reasonableness of EUO request is unavailing (Country-Wide, 205 AD3d at 474). Concur—Kapnick, J.P., Kern, Gesmer, Moulton, Higgitt, JJ.
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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held summary judgment on the EUO no-show premature because the insurer never gave the providers its specific objective justification for the EUO under 65-3.5 (e), and the providers had not waived that objection.
Of the 165 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
- Country-Wide Ins. Co. v Delacruz (2022 NY Slip Op 03068) FollowedThe insurer's EUO nonappearance motion was premature because it withheld the specific objective justification for requesting the EUO. The Appellate Division, First Department, affirmed denial of summary judgment against the providers under CPLR 3212 (f).
- American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925) FollowedThe insurer's summary judgment motion based on the claimant's EUO nonappearance was denied because essential discovery remained outstanding.
Cited by
A label shows how the later decision treated this one.
- 360 Wellness PT PLLC v State Farm Ins. Co. (2026 NY Slip Op 26206) DistinguishedThe insurer established objective justification for continued EUOs through a transcript showing that accident and treatment questions remained.
- State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025) FollowedThe insurers' EUO-based summary judgment motion was premature because they had not disclosed their objective justification for the EUOs. The insurers sought a declaration of no obligation to pay the provider's bills, alleging nonappearance and refusal to produce a knowledgeable individual.
- Kim v State Farm Ins. Co. (2024 NY Slip Op 51364(U)) FollowedThe insurer's EUO letters failed to give a specific objective justification tied to the claim, defeating summary judgment for nonappearance.
Similar decisions
- NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
- MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co. (2022 NY Slip Op 51384(U))An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Country-Wide Ins. Co. v Henderson (2022 NY Slip Op 51304(U))The insurer failed to document a consistent objective justification for its EUO request, and its summary judgment motion was premature.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50744(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 51374(U))The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The provider proved submission of a claim stating the fact and amount of the loss and overdue payment under Insurance Law § 5106 (a).