December 9, 2022

FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U))

https://www.beynensonlaw.com/case-law/fjl-med-servs-p-c-v-nationwide-ins-2022-ny-slip-op51213u/

Court: Appellate Term, Second Department
Decided: December 9, 2022
Citation: 2022 NY Slip Op 51213(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Criticized in 1 and followed in 1 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion Provider's prima facie case
Legal questions: No-show: coverage defense or precludable? · Claimant's prima facie case on motions (see the maps)

Cite as

FJL Med. Servs., P.C. v Nationwide Ins., 2022 NY Slip Op 51213(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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.

An 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. Although the provider requested adjournments, the insurer did not claim to have agreed to reschedule any EUO. Additional opportunities to appear did not continue the toll under 11 NYCRR 65-3.6 (b). The Appellate Term, Second Department, modified the order to deny the insurer summary judgment because it failed to establish timely denial and freedom from preclusion of its EUO defense. Denial of the provider's cross motion remained intact because its affidavit established neither an untimely denial nor a timely denial that was legally insufficient.

Reported in New York Official Reports at FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U))

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

FJL Medical Services, P.C., as Assignee of McTaggart, Roland F., Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered August 3, 2021. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, 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 of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs), and denying plaintiff’s cross motion for summary judgment. Plaintiff argues on appeal that defendant failed to establish that it timely denied the claim at issue.

After receipt of the claim, defendant scheduled EUOs to be held on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018; plaintiff did not appear on any of those dates. Shortly before each scheduled date, plaintiff sent defendant a letter, essentially stating that plaintiff would not be able to attend until an unspecified time months later and, among other [*2]things, improperly demanding $3,500 as up-front reimbursement for its travel expenses and time (see MSB Physical Therapy, P.C. v Nationwide Ins., 76 Misc 3d 131[A], 2022 NY Slip Op 50902[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]; Parisien v Travelers Ins. Co., 75 Misc 3d 143[A], 2022 NY Slip Op 50622[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022]). Defendant sent letters back to plaintiff stating, among other things, that defendant would or had placed a statement on the record documenting plaintiff’s “default” in appearing on each scheduled date.

In a letter to defendant’s attorney dated June 28, 2018, plaintiff’s attorney claimed that there were “no EUO ‘no-show’ dates” because it had “duly request[ed]” adjournments. On July 17, 2018, defendant’s attorney sent a letter in response that stated that plaintiff had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018.” On July 19, 2018, defendant denied the claim on the ground, among others, that plaintiff had failed “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.”

Although defendant’s July 19, 2018 denial was issued well after 30 days had passed from plaintiff’s second nonappearance on March 20, 2018 (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]), defendant’s position is that its denial was nonetheless timely. Defendant notes in its brief that, under the no-fault regulations, insurers are not to treat their insureds in an adversarial fashion (see 11 NYCRR 65-3.2 [b]), and argues that it was abiding by that principle in accommodating plaintiff by offering “additional opportunities to appear in accordance with plaintiff’s own requests” (emphasis in original). Thus, defendant contends, the facts herein are distinguishable from Quality Health Supply Corp. (2020 NY Slip Op 51226[U]) and defendant should not be “penalized” for attempting to work with plaintiff. Moreover, defendant argues, the regulations do not restrict the number of EUOs an insurer may seek.

While we agree that there is nothing in the no-fault regulations preventing an insurer from offering a claimant more than two opportunities to appear for an EUO, that issue is distinct from whether an insurer has properly continued a toll of its time to pay or deny a particular claim (see 11 NYCRR 65-3.6 [b]). Although plaintiff had informed defendant before each scheduled EUO date that it would not appear, defendant does not claim that it had agreed to reschedule any of the EUOs, which rescheduling would not constitute a failure to appear (see Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Instead, defendant placed a statement on the record for each date documenting the nonappearance, told plaintiff by letter that it had “failed to appear for EUOs on January 8, 2018, March 20, 2018, May 23, 2018 and July 12, 2018,” and based its denial on plaintiff’s failure “to submit to the [EUO] scheduled for 01/08/2018, 03/20/2018, 05/23/2018 and 07/12/2018.” Indeed, in its brief, defendant states that it is not arguing “that one or more of the EUO no-shows should ‘not count.’ ” While defendant characterizes this as seeking to accommodate plaintiff, an insurer cannot indefinitely extend its toll of the time to pay or deny a claim after a second nonappearance at a scheduled EUO by scheduling successive additional EUOs until the insurer unilaterally decides that it has offered enough opportunities to appear and [*3]end its toll.

Thus, plaintiff correctly argues that defendant’s motion should have been denied, as defendant failed to establish that it timely denied the claim at issue (see Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 74 Misc 3d 17 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Quality Health Supply Corp., 2020 NY Slip Op 51226[U]) and, therefore, defendant has not established that it is not precluded from raising plaintiff’s nonappearance at duly scheduled EUOs as a defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]).

Contrary to plaintiff’s further contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its cross motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim form that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

WESTON, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 9, 2022

Legal questions (2)

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the denial untimely because it issued well over 30 days after the second EUO nonappearance; scheduling further EUOs could not extend the toll, so the insurer did not show it was not precluded from the no-show defense.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followedDeclined to follow, questioned, overruled or reversed

Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Cited in this decision

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

MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 50902(U))The provider raised no factual issue about EUO date convenience after the insurer accommodated its repeated rescheduling requests.
Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U))The provider's conditional attendance demands raised no factual issue about whether its EUOs were scheduled at reasonably convenient times.
Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
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.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340)An untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Cited by

A label shows how the later decision treated this one.

MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199) CriticizedThe insurer's denial after the assignor's fourth EUO nonappearance was timely despite issuance more than 30 days after the second.
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.
MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))The insurer failed to establish timely denial after the provider's second EUO nonappearance or raise a triable issue on that defense.
MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.

Similar decisions

Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action.
Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))An insurer need not state objective reasons for requesting EUOs as part of its prima facie showing for summary judgment based on nonappearance.
Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111)An EUO request tolls the time to pay or deny a claim, not the deadline to request new verification.
Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))An insurer may timely schedule more than two EUOs and deny a claim within the required period after the last scheduled EUO. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny.