December 17, 2014

Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))

https://www.beynensonlaw.com/case-law/great-health-care-chiropractic-p-c-v-nationwide-ins-2014-ny-slip-op51812u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51812(U) · 46 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Verification requests Discovery and procedure

Cite as

Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130(A), 2014 NY Slip Op 51812(U) (App Term, 2d Dept, 2d, 11th & 13th 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.

The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion. The Pennsylvania affidavit included a proper certificate of conformity under CPLR 2309 (c); absence of such a certificate would not have been fatal in any event. Although the challenged delay letters were inadequate EUO requests and did not toll the payment or denial period, separate EUO scheduling letters appeared to contain the allegedly missing information. The provider did not challenge those letters' sufficiency and failed to demonstrate error in Civil Court's finding that the claims were timely denied.

Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))

[*1]

Great Health Care Chiropractic, P.C. v Nationwide Ins.

2014 NY Slip Op 51812(U) [46 Misc 3d 130(A)]

Decided on December 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: :PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1330 K C

Great Health Care Chiropractic, P.C. as Assignee of ELIZABETH CLAUDE, Appellant,
against
Nationwide Ins., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered May 1, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues that defendant’s cross motion should have been denied, and plaintiff’s motion should have been granted, because defendant submitted an affidavit to the court that had been executed in Pennsylvania and which was not accompanied by a proper certificate of conformity, and because defendant had not tolled its time to pay or deny the claims at issue as its delay letters, attached as exhibit “D” to its cross motion, “failed to conform to the requirements of a proper EUO [examination under oath] request letter.”

Contrary to plaintiff’s contention, the affidavit submitted by defendant was accompanied by a proper certificate of conformity (see CPLR 2309 [c]). In any event, the absence of a certificate of conformity for an out-of-state affidavit is not a fatal defect (see Fredette v Town of Southampton, 95 AD3d 940 [2012]; Active Chiropractic, P.C. v Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d, 11th & 13th Jud Dists 2014]).

Furthermore, while plaintiff correctly argues that the letters attached to defendant’s cross motion as exhibit “D” “failed to conform to the requirements of a proper EUO request letter,” and that these letters failed to toll defendant’s time to pay or deny the claims at issue, plaintiff has not demonstrated on appeal that the Civil Court improperly held that defendant had timely denied the claims at issue. Indeed, the record reflects that defendant submitted EUO scheduling letters attached to its cross motion as exhibit “F,” which appear to contain the information plaintiff found to be lacking in the letters attached as exhibit “D,” and plaintiff has raised no issue with respect to the sufficiency of those letters.

In view of the foregoing, plaintiff has provided no basis upon which to reverse the order of the Civil Court. Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014

Cited in this decision

Active Chiropractic, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50634(U))An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect.

Cited by

A label shows how the later decision treated this one.

Sharp View Diagnostic Imaging, P.C. v Esurance (2017 NY Slip Op 51466(U)) FollowedThe insurer's EUO letters supported tolling, and its proof established the assignor's failure to appear for the EUOs. The provider argued that the insurer relied on letters seeking no documents or information to toll the time to pay or deny.
Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc. (2017 NY Slip Op 50923(U))The defendant's timely mailing of the initial EUO notice tolled its time to pay or deny claims received afterward.
Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
Mollo v 21st Century Ins. Co. (2019 NY Slip Op 51182(U))The insurer established timely mailing of EUO scheduling letters and denials despite separate delay letters that did not toll its deadline.
Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))The provider's tolling challenge failed because the insurer submitted EUO scheduling letters whose sufficiency was not disputed.

Similar decisions

J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))The insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.
Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2016 NY Slip Op 50308(U))The insurer failed to prove proper mailing of IME notices, and the provider failed to establish prima facie entitlement to summary judgment.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Great Health Care Chiropractic, P.C. v Unitrin Advantage Ins. Co. (2015 NY Slip Op 50782(U))The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance.
ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50448(U))The insurer's attorney affidavits and certified EUO transcripts established the provider's failure to appear.