April 4, 2012
East-West Acupuncture v Safeco Ins. Co. of Ind. (2012 NY Slip Op 22095)
https://www.beynensonlaw.com/case-law/east-west-acupuncture-v-safeco-ins-co-of-ind-2012-ny-slip-op-22095/
- Decided
- April 4, 2012
- Citation
- 2012 NY Slip Op 22095 · 35 Misc 3d 50
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 East-West Acupuncture v Safeco Ins. Co. of Ind. (2012 NY Slip Op 22095)
| East-West Acupuncture v Safeco Ins. Co. of Ind. |
| 2012 NY Slip Op 22095 [35 Misc 3d 50] |
| Accepted for Miscellaneous Reports Publication |
| AT2 |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, June 6, 2012 |
[*1]
| East-West Acupuncture as Assignee of Michael Cousins and Another, Appellant, v Safeco Ins. Co. of Indiana, Respondent. |
Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, April 4, 2012
APPEARANCES OF COUNSEL
Gary Tsirelman, P.C., Brooklyn (Irena Golodkeyer of counsel), for appellant. Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for respondent.
{**35 Misc 3d at 51} OPINION OF THE COURT
Memorandum.
Ordered that the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order granting defendant’s motion for summary judgment dismissing the complaint on condition that, within 60 days, defendant serve and file the moving affidavit of Marcy Gonzalez, accompanied by a certificate of conformity in compliance with CPLR 2309 (c).
Defendant denied plaintiff’s claims on the ground that plaintiff’s assignors had failed to appear for scheduled examinations under oath (EUOs). In support of its motion for summary judgment dismissing the complaint, defendant submitted several affidavits, which, among other things, sufficiently set forth defendant’s procedures for mailing EUO scheduling letters and denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In opposition to defendant’s motion, plaintiff argued that the certificate of conformity which accompanied the affidavit of Marcy Gonzalez, defendant’s claims representative, did not comply with CPLR 2309 (c). While an affidavit which is executed outside of New York State must be accompanied by a certificate of conformity, a court may permit a party to secure such certificate later and give it nunc pro tunc effect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Here, the Civil Court did not improvidently exercise its discretion when it afforded defendant an opportunity to cure the defect within 60 days by submitting a certificate of conformity in compliance with CPLR 2309 (c). Plaintiff’s remaining contentions lack merit.{**35 Misc 3d at 52} [*2]
Accordingly, the order conditionally granting defendant’s motion for summary judgment is affirmed.
We note that our review is limited to the order entered February 9, 2009 and we do not pass upon whether any certificate of conformity subsequently submitted by defendant complied with CPLR 2309 (c), as said issue is not properly before this court on this appeal.
Pesce, P.J., Weston and Rios, JJ., concur.
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 (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the insurer's affidavits sufficiently set forth its procedures for mailing EUO letters and denials, and allowed a defective out-of-state certificate of conformity to be cured nunc pro tunc.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Affirmed conditional summary judgment on the EUO no-show, finding the mailing procedures for the scheduling letters adequately shown and permitting a late certificate of conformity.
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Upheld conditional dismissal on the EUO no-show defense because the insurer's affidavits sufficiently set forth its procedures for mailing both the EUO scheduling letters and the denial of claim forms.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Ave T MPC Corp. v Amica Mut. Ins. Co. (2010 NY Slip Op 52009(U)) FollowedThe provider's action was premature because the insurer had received no claim forms before suit commenced.
Similar decisions
- Eastern Star Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 50043(U))An out-of-state affidavit lacking the required certificate of conformity may receive nunc pro tunc effect once the certificate is obtained.
- 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.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims.
- Wellness Plaza Acupuncture, P.C. v Erie Ins. (2017 NY Slip Op 51729(U))The provider failed to establish its prima facie case, and the insurer failed to prove timely mailing of EUO nonappearance denials.
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.