October 29, 2013
Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))
https://www.beynensonlaw.com/case-law/flatbush-chiropractic-p-c-v-state-farm-mut-auto-ins-co-2013-ny-slipop-51880u/
- Decided
- October 29, 2013
- Citation
- 2013 NY Slip Op 51880(U) · 41 Misc 3d 135(A)
- 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 Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))
| Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2013 NY Slip Op 51880(U) [41 Misc 3d 135(A)] |
| Decided on October 29, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 29, 2011. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.
Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been 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]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO 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]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]).
Accordingly, the order is affirmed. [*2]
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 29, 2013
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.
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
Rejected the provider's challenge to the EUO no-show denials, holding the insurer's affidavits established that the denial of claim forms had been timely mailed under its standard office practice.
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
Held the insurer's affidavits established that the EUO scheduling letters and denial of claim forms had been timely mailed in accordance with its standard office practices and procedures, rejecting the provider's argument.
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
Held the EUO no-show defense established because the scheduling letters were shown timely mailed, and the provider's objections to the EUO requests were not heard since it never responded to them, making discovery unnecessary.
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.
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.
- Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U)) FollowedThe 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)) FollowedThe 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.
Similar decisions
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51457(U))The provider's EUO objections were not heard because it did not claim to have responded to the insurer's requests.
- T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51310(U))The provider's unanswered EUO requests foreclosed its reasonableness objections and made related discovery unnecessary to oppose summary judgment.