January 14, 2013

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))

https://www.beynensonlaw.com/case-law/flatlands-med-p-c-v-state-farm-mut-auto-ins-co-2013-ny-slip-op50071u/

Court: Appellate Term, Second Department
Decided: January 14, 2013
Citation: 2013 NY Slip Op 50071(U) · 38 Misc 3d 135
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co., 38 Misc 3d 135 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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.

The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response. The insurer established timely mailing of the scheduling letters and denials and the provider's failure to attend duly scheduled EUOs, a condition precedent under 11 NYCRR 65-1.1. The Civil Court gave notice before converting the insurer's CPLR 3211 dismissal motion into one for summary judgment under CPLR 3211 (c). Because the provider did not allege responding to the EUO requests in any way, its objections should not have been considered. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment.

Reported in New York Official Reports at Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))

[*1]

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co.

2013 NY Slip Op 50071(U) [38 Misc 3d 135]

Decided on January 14, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 14, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2011-1073 K C.

Flatlands Medical, P.C. as Assignee of ONIEL STANBURY, Appellant, —
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 15, 2011. The order, insofar as appealed from as limited by the brief, upon treating defendant’s motion, pursuant to CPLR 3211, to dismiss the complaint, as one for summary judgment dismissing the complaint (see CPLR 3211 [c]), granted defendant’s motion.

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 moved, pursuant to CPLR 3211, to dismiss the complaint on the ground that plaintiff had failed to satisfy a condition precedent to coverage by not appearing for scheduled examinations under oath (EUOs). The Civil Court gave notice to the parties that it would treat the motion as a motion for summary judgment dismissing the complaint (see CPLR 3211 [c]) and subsequently granted defendant’s motion. This appeal by plaintiff ensued.

The affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed (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 demonstrated that plaintiff had failed to appear at the duly scheduled EUOs, and therefore had failed to satisfy a condition precedent to defendant insurer’s liability on the subject policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s objections regarding the EUO requests should not have been considered by the Civil Court, as plaintiff did not allege that it had responded in any way to the requests (cf. Leica Supply, Inc. v Encompass Indem. Co., 35 Misc 3d 142[A], 2012 NY Slip Op 50890[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]).

In view of the foregoing, plaintiff’s remaining contention is without merit. Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 14, 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.

No-show defense: insurer's proof

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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

Upheld dismissal because the insurer proved timely mailing of the EUO letters and the provider's nonappearance, and the provider's objections to the requests should not have been considered since it never responded to them.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

No-show: coverage defense or precludable?

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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)

Found the insurer's affidavits established that its denial of claim forms had been timely mailed, as part of upholding its EUO no-show defense.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itDistinguished or limited

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.

Proof of mailing

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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 established that the EUO scheduling letters and the denial of claim forms had been timely mailed.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDistinguished or limited

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.
Leica Supply, Inc. v Encompass Indem. Co. (2012 NY Slip Op 50890(U)) Contrasted (cf., but see)The insurer proved timely mailing of EUO notices and the denial, and the assignor's failure to appear at either scheduled EUO. The provider challenged summary judgment dismissing its assigned no-fault claims.
Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) Contrasted (cf., but see)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.

Similar decisions

Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50758(U))The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections.
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.
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.
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50997(U))The provider failed to show a timely objection to EUO requests and could not challenge their reasonableness in litigation.
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.