June 17, 2022
Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))
https://www.beynensonlaw.com/case-law/hand-by-hand-pt-p-c-v-nationwide-prop-cas-ins-co-2022-ny-slip-op50607u/
- Decided
- June 17, 2022
- Citation
- 2022 NY Slip Op 50607(U) · 75 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))
| Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. |
| 2022 NY Slip Op 50607(U) [75 Misc 3d 141(A)] |
| Decided on June 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 17, 2022
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
2020-744 K C
against
Nationwide Property and Casualty Insurance Company, Appellant.
Hollander Legal Group, P.C. (Allan S. Hollander and Christopher Volpe of counsel), for appellant. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Jill R. Epstein, J.), dated December 4, 2019. The order denied defendant’s motion for summary judgment dismissing the complaint and, upon a search of the record, granted summary judgment to plaintiff.
ORDERED that the order 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 an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs) and, upon a search of the record, granted summary judgment to plaintiff.
A review of the record indicates that the proof submitted by defendant in support of its motion for summary judgment dismissing the complaint demonstrated that defendant’s initial and follow-up letters scheduling the EUOs had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff failed to appear on either date (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]), and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123). As plaintiff’s opposition papers failed to rebut defendant’s prima facie showing, defendant’s motion for summary judgment dismissing the complaint should have been granted.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022
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.
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 initial and follow-up EUO letters and the provider's failure to appear on either date, and the opposition did not rebut that showing.
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.
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)
Held the insurer demonstrated that the claims were timely denied on the EUO no-show ground, as part of its prima facie showing.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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's proof demonstrated that its initial and follow-up EUO scheduling letters were timely mailed and that the claims were timely denied, both under the St. Vincent's standard.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U))The insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.
Similar decisions
- Hand By Hand PT, P.C. v Titan Indem. Co. (2021 NY Slip Op 50644(U))The insurer established the provider's failure to appear for two duly scheduled EUOs and timely denial of the claims on that ground.
- Hands On Physical Therapy Care v Nationwide Ins. (2022 NY Slip Op 50797(U))The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50830(U))The insurer established timely EUO requests, the provider's nonappearance at each scheduled EUO, and timely, proper denials.
- NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
- 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.