April 16, 2010
Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U))
https://www.beynensonlaw.com/case-law/crotona-hgts-med-p-c-v-farm-family-cas-ins-co-2010-ny-slip-op50716u/
- Decided
- April 16, 2010
- Citation
- 2010 NY Slip Op 50716(U) · 27 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 8 later decisions (see Cited by)
- Issues
- EUO no-show
- 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 Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U))
| Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. |
| 2010 NY Slip Op 50716(U) [27 Misc 3d 134(A)] |
| Decided on April 16, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 4, 2011; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-1178 K C.
against
Farm Family Casualty Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered April 28, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment.
ORDERED that the order, insofar as appealed from, is reversed without costs and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and the cross motion. Insofar as is relevant to this appeal, the Civil Court found that defendant had established that it had timely and properly denied the claims at issue after requesting that plaintiff appear for an examination under oath (EUO), and held that “the sole issue remaining to be determined at trial is the EUO no-show as a proper basis of denial” (see CPLR 3212 [g]). Defendant appeals from so much of the order as denied its cross motion for summary judgment.
In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for duly scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). The appearance of the eligible injured person’s assignee at an EUO upon a proper request is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at [*2]722; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]).
In light of the foregoing, and the Civil Court’s CPLR 3212 (g) findings that the EUO requests were mailed and that the claims were timely denied, from which no appeal has been taken by plaintiff, the Civil Court should have granted defendant’s cross motion for summary judgment dismissing the complaint.
Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 16, 2010
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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the affirmation of the partner at the law firm retained to conduct the EUO established the provider's nonappearance for duly scheduled EUOs, which with the unappealed mailing findings warranted dismissal.
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.
- W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U)) FollowedThe insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.
- 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.
Cited by (13)
A label shows how the later decision treated this one.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U)) FollowedThe insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
- Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2010 NY Slip Op 50991(U)) FollowedDenial forms offered to show that claims were denied, rather than to prove their contents, need not qualify as business records.
- Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U)) FollowedThe insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
- Ortho Prods. & Equip., Inc. v Interboro Ins. Co. (2013 NY Slip Op 52054(U)) FollowedThe insurer established timely EUO notices and denials and both assignors' nonappearances, warranting dismissal of their assigned claims.
- Charles Deng Acupuncture, P.C. v Titan Ins. Co. (2016 NY Slip Op 26211) FollowedCertified EUO no-show transcripts were admissible as business records at trial and established the provider's nonappearances.
- Mega Supplies Billing, Inc. v State Farm Fire & Cas. Co. (2012 NY Slip Op 51014(U)) FollowedThe insurer proved timely mailing of the EUO notices and denials and the provider's failure to attend either scheduled EUO. In this action for assigned first-party no-fault benefits, the provider challenged the affidavits supporting the insurer's summary judgment motion.
- Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U)) FollowedEUO scheduling letters need not conspicuously highlight the information they contain under 11 NYCRR 65-3.5 (b) and (e).
- Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U)) FollowedThe insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims.
- Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
- 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.
Similar decisions
- Corona Hgts. Med., P.C. v Lancer Ins. Co. (2011 NY Slip Op 51293(U))The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The motion papers demonstrated mailing through the standard office practices of the law firm conducting the EUOs and the insurer's own denial-mailing procedures.
- 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 Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews.
- Crotona Hgts. Med., P.C. v GEICO Ins. Co. (2009 NY Slip Op 52466(U))The insurer's unrebutted peer review established lack of medical necessity for the provider's third and fourth causes of action.