July 2, 2021
Hand By Hand PT, P.C. v Titan Indem. Co. (2021 NY Slip Op 50644(U))
https://www.beynensonlaw.com/case-law/hand-by-hand-pt-p-c-v-titan-indem-co-2021-ny-slip-op-50644u/
- Court
- Appellate Term, Second Department
- Decided
- July 2, 2021
- Citation
- 2021 NY Slip Op 50644(U) · 72 Misc 3d 131(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 Titan Indem. Co. (2021 NY Slip Op 50644(U))
[*1]| Hand By Hand PT, P.C. v Titan Indem. Co. |
| 2021 NY Slip Op 50644(U) [72 Misc 3d 131(A)] |
| Decided on July 2, 2021 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2021
PRESENT: : MICHELLE WESTON, J.P., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2019-1383 K C
against
Titan Indemnity Company, Respondent.
Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 9, 2019. The order granted defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff failed to appear for duly scheduled examinations under oath (EUOs).
In its motion, defendant established that initial and follow-up letters scheduling an EUO were 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]); and that the claims were timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). As defendant established its prima facie entitlement to summary judgment (see Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755 [2020]), and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, the Civil Court properly granted defendant’s motion for summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
WESTON, J.P., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 2, 2021
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 mailed initial and follow-up EUO letters and the provider's nonappearance on both dates, and no triable issue was raised.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (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 established that the claims were timely denied on the EUO no-show ground, as part of its prima facie defense.
Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 308 (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 proved timely mailing of the initial and follow-up EUO scheduling letters and of the denials.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (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) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
Similar decisions
- Hand By Hand PT, P.C. v Nationwide Prop. & Cas. Ins. Co. (2022 NY Slip Op 50607(U))The insurer established timely EUO notices, the provider's nonappearances and timely denials, and the provider failed to rebut that showing.
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.
- Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms.
- Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
- 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.