November 26, 2013
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))
https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-utica-mut-ins-co-2013-ny-slip-op52005u/
- Decided
- November 26, 2013
- Citation
- 2013 NY Slip Op 52005(U) · 41 Misc 3d 140(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 4 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 Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2013 NY Slip Op 52005(U))
| Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. |
| 2013 NY Slip Op 52005(U) [41 Misc 3d 140(A)] |
| Decided on November 26, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2828 K C.
against
Utica Mutual Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 5, 2011. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.
Defendant denied the claim at issue based upon the alleged failure by plaintiff’s assignor to appear at duly scheduled examinations under oath (EUOs). However, according to the affirmation submitted by defendant’s counsel, the initial EUO had been rescheduled by mutual agreement, prior to the date it was to occur. A mutual rescheduling, which occurs prior to the date of the scheduled EUO, does not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Vitality Chiropractic, P.C. v Kemper Ins. Co., 14 Misc 3d 94 [App Term, 2d & [*2]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 DVS Chiropractic, P.C., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013
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: Claimant showed the nonappearance was excused or the request unreasonable or waived
Held the insurer did not prove two nonappearances because the initial EUO had been rescheduled by mutual agreement before its date, which is not a failure to appear.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 8 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U)) FollowedMutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
- 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.
Cited by
A label shows how the later decision treated this one.
- FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U)) FollowedAn insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.
- Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U)) FollowedThe insurer failed to establish timely EUO denials because it did not prove that the first scheduled EUO had been mutually rescheduled.
- 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.
- Allstate Chiropractic, P.C. v Nationwide Affinity Ins. Co. of Am. (2023 NY Slip Op 50299(U)) FollowedThe insurer failed to establish timely denials because scheduling another EUO did not extend the deadline after the second nonappearance.
- Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 22383)An insurer's 30-day period to pay or deny resumes at the second EUO nonappearance when no other verification request is outstanding.
- 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.
Similar decisions
- Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50753(U))The insurer's affidavits established timely mailing of EUO scheduling letters and the denial, and the provider's failure to attend either EUO. In the assigned no-fault benefits action, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- 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.
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.
- Five Boro Psychological Servs., P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51336(U))The insurer failed to establish two IME nonappearances because its rescheduling letter could reflect a mutual agreement to reschedule.
- 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.