July 18, 2012

Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U))

https://www.beynensonlaw.com/case-law/dvs-chiropractic-p-c-v-interboro-ins-co-2012-ny-slip-op-51443u/

Court: Appellate Term, Second Department
Decided: July 18, 2012
Citation: 2012 NY Slip Op 51443(U) · 36 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 7 later decisions (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Dvs Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138(A), 2012 NY Slip Op 51443(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.

Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear. The insurer denied the provider's assigned no-fault claims for the assignor's alleged EUO nonappearance. Its affidavit showed, however, that the initial EUO had twice been rescheduled by mutual agreement before the respective scheduled dates. Following Vitality Chiropractic, P.C. v Kemper Ins. Co., the insurer did not establish failures to appear at both an initial and a follow-up EUO and therefore did not prove noncompliance with a coverage condition precedent. The Appellate Term, Second Department, affirmed the judgment entered on summary judgment for the provider and denial of the insurer's cross motion, reaching no other issue.

Reported in New York Official Reports at Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U))

[*1]

Dvs Chiropractic, P.C. v Interboro Ins. Co.

2012 NY Slip Op 51443(U) [36 Misc 3d 138(A)]

Decided on July 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 18, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2889 K C.

DVS Chiropractic, P.C. as Assignee of WILLIE NORMAN, Respondent,
against
Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 24, 2009, deemed from a judgment of the same court entered August 14, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 24, 2009 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 $1,200.54.

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 of the Civil Court 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]).

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant denied the claims based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affidavit [*2]submitted by defendant, the initial EUO had twice been rescheduled by mutual agreement, prior to the dates set for each. We do not consider a mutual rescheduling, which occurs prior to the date of that scheduled EUO, to constitute a failure to appear (see Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & 11th Jud Dists 2006]). Therefore, as defendant did not demonstrate that there had been a failure to appear at both an initial and a follow-up EUO, defendant did not prove that plaintiff had failed to comply with a condition
precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Accordingly, the judgment is affirmed. We reach no other issue.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 18, 2012

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.

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: Claimant showed the nonappearance was excused or the request unreasonable or waived

Held the insurer did not prove a failure to appear at both an initial and follow-up EUO because its own affidavit showed the initial EUO was twice rescheduled by mutual agreement before the scheduled dates.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 8 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

Vitality Chiropractic, P.C. v Kemper Ins. Co. (2006 NY Slip Op 26536) FollowedPreclaim IME requests do not toll the denial period, and mutually agreed rescheduling of initial IMEs is not a follow-up request.
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 (12)

A label shows how the later decision treated this one.

City Care Acupuncture, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51036(U)) Contrasted (cf., but see)The assignor's appearance at an EUO did not defeat the insurer's motion because the parties mutually agreed to reschedule it.
Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U)) FollowedAn EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.
Metro Psychological Servs., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51644(U)) FollowedAn EUO request issued after an assignor misses a rescheduled EUO constitutes a follow-up request under 11 NYCRR 65-3.6 (b).
Silver Acupuncture, P.C. v GEICO (Gov Employees) (2017 NY Slip Op 51876(U)) FollowedThe insurer failed to prove timely denial after EUO nonappearances, and the provider failed to establish its prima facie case.
Kings County Physicians Group v Nationwide Ins. Co. (2021 NY Slip Op 50337(U)) FollowedThe assignor's attendance at one EUO did not cure the failure to appear for two scheduled continued EUOs. The Civil Court, Queens County, granted the insurer summary judgment dismissing the provider's complaint.
RX for You v Nationwide Ins. Co. of Am. (2021 NY Slip Op 51171(U)) FollowedThe insurer's EUO nonappearance defense presented factual issues about the location's convenience and an agreed rescheduling.
Progressive Health Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50603(U))The insurer failed to prove two IME nonappearances on one claim, and conflicting mailing evidence precluded summary judgment on another.
Apple Massage Therapy, P.C. v Adirondack Ins. Exch. (2017 NY Slip Op 50935(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.

Show all 12 citing decisions

Similar decisions

Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U))The insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge.
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.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))The insurer failed to establish a proper EUO nonappearance denial because its first EUO notice was mailed about 50 days after claim receipt.