July 7, 2014

Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (2014 NY Slip Op 51142(U))

https://www.beynensonlaw.com/case-law/flow-chiropractic-p-c-v-travelers-home-mar-ins-co-2014-ny-slip-op51142u/

Court: Appellate Term, Second Department
Decided: July 7, 2014
Citation: 2014 NY Slip Op 51142(U) · 44 Misc 3d 132(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Distinguished in 1 and followed in 8 later decisions (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co., 44 Misc 3d 132(A), 2014 NY Slip Op 51142(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2014)

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's EUO scheduling notice need not specify why the EUO is required. The provider appealed summary judgment dismissing its assigned no-fault claims for failure to appear at duly scheduled EUOs, arguing that the insurer lacked justification and demanded improper documents. Relying on the Insurance Department's interpretation of the no-fault regulations, the Appellate Term, Second Department, rejected the argument that the insurer had to set forth objective standards in its notices. Appearance was a condition precedent to policy liability under Stephen Fogel Psychological. Because the provider neither alleged nor established any response by it or its assignor, the remaining objections were not heard. Counsel's affirmation raised no triable issue, and the order granting the insurer summary judgment was affirmed.

Reported in New York Official Reports at Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co. (2014 NY Slip Op 51142(U))

[*1]

Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.

2014 NY Slip Op 51142(U) [44 Misc 3d 132(A)]

Decided on July 7, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS

PRESENT: : IANNACCI, J.P., MARANO and GARGUILO, JJ.
2012-2432 N C

Flow Chiropractic, P.C. as Assignee of MIKHAIL SHIPLEV, Appellant,
against
Travelers Home and Marine Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Terence P. Murphy, J.), dated September 25, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 District Court which granted defendant’s motion for summary judgment dismissing the complaint. The District 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 lacked justification for its EUO requests and that the document demands contained in the EUO requests were palpably improper.

An appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Plaintiff’s contention that defendant was not entitled to summary judgment because defendant had failed to set forth any objective standards for requesting the EUOs lacks merit. No “provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs” (2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]).

Moreover, the Insurance Department interpretation of the Regulations “is entitled to deference unless irrational or unreasonable” (Stephen Fogel Psychological, P.C.,
35 AD3d at 722 [internal quotation marks omitted]). As plaintiff does not allege, let alone establish, that it or its assignor responded in any way to defendant’s EUO requests, plaintiff’s remaining objections regarding the EUO requests will not now be heard (see 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]). Moreover,
the opposing affirmation submitted by plaintiff’s counsel was insufficient to
raise a triable issue of fact in opposition to defendant’s motion. Consequently, defendant’s motion was properly granted.

Accordingly, the order is affirmed.

Iannacci, J.P., Marano and Garguilo, JJ., concur.

Decision Date: July 07, 2014

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.

No-show defense: insurer's proof

Open the full map

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 entitled to summary judgment on the EUO no-show because no regulation requires the notice to state reasons, and the provider's objections went unheard since it never responded to the EUO requests.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category. 3 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

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.
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.

Cited by (12)

A label shows how the later decision treated this one.

Kemper Independence Ins. Co. v Accurate Monitoring, LLC (2021 NY Slip Op 21253) DistinguishedAn insurer must provide specific objective justification for an EUO when the claimant requests it during claims verification.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50423(U)) FollowedAn insurer need not disclose the reasons or objective standards for its EUO demands in scheduling letters or in response to a provider's objection.
Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U)) FollowedThe provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.
Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2015 NY Slip Op 50685(U)) FollowedAn insurer need not set forth objective standards for requesting an EUO under No-Fault Regulation 68.
City Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51102(U)) FollowedAn insurer need not explain its reasons for requesting EUOs in scheduling letters or in response to a provider's objection.
Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U)) FollowedNo 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.
Park Ave. Chiropractic & Health Care PC v Maya Assur. Co. (2021 NY Slip Op 50804(U)) FollowedA provider's EUO objection written after the scheduled examination date is ineffective and does not excuse nonappearance.
NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.
Alsaad Med., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op50532(U)) FollowedA provider's failure to attend duly scheduled EUOs defeats coverage even when the insurer's denial is untimely.
Hempstead Regional Chiropractic, PC v Allstate Ins. Co. (2014 NY Slip Op 24259)The insurer failed to establish an objective basis for its EUO request after the assignor timely objected to appearing.

Show all 12 citing decisions

Similar decisions

Great Health Care Chiropractic, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51665(U))The insurer failed to establish a proper EUO nonappearance denial because its first EUO notice was mailed about 50 days after claim receipt.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U))The insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
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.
Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51594(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.