December 17, 2014
Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))
https://www.beynensonlaw.com/case-law/excel-imaging-p-c-v-infinity-select-ins-co-2014-ny-slip-op51796u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51796(U) · 46 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Excel Imaging, P.C. v Infinity Select Ins. Co. (2014 NY Slip Op 51796(U))
| Excel Imaging, P.C. v Infinity Select Ins. Co. |
| 2014 NY Slip Op 51796(U) [46 Misc 3d 128(A)] |
| Decided on December 17, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-792 Q C
against
Infinity Select Insurance Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 16, 2011, deemed from a judgment of the same court entered March 8, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 16, 2011 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 $1,626.53.
ORDERED that the judgment is reversed, with $30 costs, the order entered September 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied 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, 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]).
In opposition to plaintiff’s motion for summary judgment, and in support of its cross motion for summary judgment dismissing the complaint, defendant established that its time to pay or deny plaintiff’s claim had been tolled by the timely mailing of examination under oath (EUO) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for either of the properly scheduled EUOs, and that the claim had been timely and properly denied on that ground (see id.; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim that its assignor objected to the reasonableness of the EUO requests, its objections regarding the requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). An assignor’s appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).
Accordingly, the judgment is reversed, the order entered September 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014
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 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 insurer proved timely mailed EUO letters and two nonappearances, and the provider's objections to the requests could not be heard since the assignor never objected to their reasonableness.
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)
Held the EUO no-show defense established where the EUO letters tolled the time to deny and the claim was timely and properly denied on the nonappearance ground.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer established timely mailing of the EUO scheduling letters, which tolled its time to pay or deny.
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.
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 American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
- 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.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U))The insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO 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
- MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)The insurer's denial after the assignor's fourth EUO nonappearance was timely despite issuance more than 30 days after the second.
Similar decisions
- Excel Imaging, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51896(U))The insurer's EUO no-show defense presented a factual issue because the record did not resolve a prior adjournment request.
- Delta Diagnostic Radiology, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51676(U))The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment.
- Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))The insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51711(U))The insurer established timely mailing of EUO notices, the assignor's nonappearance and timely denials based on that nonappearance.
- Atlantic Radiology Imaging, P.C. v Esurance Ins. Co. (2016 NY Slip Op 50315(U))The provider's challenges to proof of EUO mailing and nonappearance failed because mailing was established and the wrong proof was challenged.