September 9, 2022
Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50915(U))
https://www.beynensonlaw.com/case-law/forest-park-acupuncture-p-c-v-nationwide-prop-cas-ins-co-2022-ny-slip-op50915u/
- Decided
- September 9, 2022
- Citation
- 2022 NY Slip Op 50915(U) · 76 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- No-show defense: insurer's proof · Proof of mailing (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 Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50915(U))
| Forest Park Acupuncture, P.C. v Nationwide Prop. & Cas. Ins. Co. |
| 2022 NY Slip Op 50915(U) [76 Misc 3d 132(A)] |
| Decided on September 9, 2022 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-683 K C
against
Nationwide Property & Casualty Insurance Co., Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Consuelo Mallafre Melendez, J.), entered January 9, 2020. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
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 motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor failed to appear for duly scheduled examinations under oath (EUOs). The Civil Court found, in effect pursuant to CPLR 3212 (g), that plaintiff established the timely mailing of the bills and defendant established the timely mailing of its denials, and limited the issue for trial to defendant’s “EUO no show defense as to the March 27, 2017 date.”
In its motion, defendant established that a letter scheduling the EUO for March 27, 2017 was timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). The affirmation of defendant’s counsel, as well as the transcript of the March 27, 2017 EUO, was sufficient to establish that plaintiff’s assignor failed to appear for [*2]that EUO (Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). Consequently, as plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion or otherwise challenge the implicit CPLR 3212 (g) finding in defendant’s favor, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:Paul Kenny
Chief Clerk
Decision Date: September 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.
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 proved timely mailing of the scheduling letter and, through counsel's affirmation and the EUO transcript, the assignor's nonappearance on the one date left for trial.
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.
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 established that the letter scheduling the EUO at issue was timely and properly mailed.
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.
- Pavlova v Nationwide Ins. (2021 NY Slip Op 50213(U)) FollowedAn assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor.
Similar decisions
- Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
- GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U))The provider raised no triable issue on the EUO nonappearance defense where the scheduling letters offered virtual attendance.
- NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim.
- Spring Rehab PT P.C. v Nationwide Affinity Ins. Co. (2022 NY Slip Op 51268(U))The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
- Arcadia Acupuncture, P.C. v Nationwide Ins. Co. (2021 NY Slip Op 51258(U))The provider obtained partial judgment for untimely denials, but disputed EUO convenience barred judgment on later claims.