October 11, 2011
Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U))
https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-state-farm-mut-auto-ins-co-2011-ny-slipop-51846u/
- Decided
- October 11, 2011
- Citation
- 2011 NY Slip Op 51846(U) · 33 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 Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 51846(U))
| Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. |
| 2011 NY Slip Op 51846(U) [33 Misc 3d 128(A)] |
| Decided on October 11, 2011 |
| 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| As corrected in part through November 4, 2011; it will not be published in the printed Official Reports.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: : PESCE, P.J., RIOS and STEINHARDT, JJ
2009-2204 K C.
against
State Farm Mutual Automobile Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 3, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint. Defendant argued that it had timely denied plaintiff’s claim based upon the failure of plaintiff’s owner to appear for an examination under oath (EUO). The Civil Court granted plaintiff’s motion and denied defendant’s cross motion for summary judgment, finding that defendant’s EUO scheduling letters were insufficient.
The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form were timely mailed in accordance with its standard office practices and procedures (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]). Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]). [*2]Such an appearance at an EUO is a condition precedent to an insurer’s liability on a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Furthermore, contrary to the Civil Court’s determination, there is no requirement that EUO scheduling letters conspicuously highlight the information contained therein (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: October 11, 2011
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 its EUO no-show defense through office-practice proof of mailing and an affirmation of the attorney conducting the EUOs, and rejected the requirement that scheduling letters conspicuously highlight their contents.
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)
Granted the insurer summary judgment on the EUO no-show defense after finding, among its elements, that the denial of claim form based on the nonappearance was timely mailed.
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's affidavits sufficient to show that the EUO scheduling letters and the denial were timely mailed under its standard office practices and procedures.
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 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.
- 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.
- 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.
- Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U)) FollowedThe insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
Similar decisions
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))A provider's appearance at a duly requested EUO is a condition precedent to the insurer's liability under the policy.
- 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.
- 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.
- Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
- Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear.