July 22, 2010
Infinity Health Prods., Ltd. v Progressive Ins. Co. (2010 NY Slip Op 51334(U))
https://www.beynensonlaw.com/case-law/infinity-health-prods-ltd-v-progressive-ins-co-2010-ny-slip-op51334u/
- Decided
- July 22, 2010
- Citation
- 2010 NY Slip Op 51334(U) · 28 Misc 3d 133(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
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 Infinity Health Prods., Ltd. v Progressive Ins. Co. (2010 NY Slip Op 51334(U))
| Infinity Health Prods., Ltd. v Progressive Ins. Co. |
| 2010 NY Slip Op 51334(U) [28 Misc 3d 133(A)] |
| Decided on July 22, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-265 Q C.
against
Progressive Insurance Company, Appellant.
Appeal from a judgment of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 28, 2008. The judgment, entered pursuant to an order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $1,500.50.
ORDERED that the judgment is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved
for summary judgment. In opposition to the motion, defendant argued
that it had timely denied plaintiff’s claims based upon plaintiff’s assignor’s failure to appear
for an examination under oath (EUO). By order dated October 9, 2008, the Civil Court granted
plaintiff’s motion, and a judgment was entered in plaintiff’s favor pursuant to that order.
To raise a triable issue of fact based on the assignor’s failure to appear at scheduled EUOs, defendant was required to demonstrate that its initial and follow-up requests for verification were timely (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]) and establish, by an affidavit of one with personal knowledge, that the assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant failed to establish that the EUO scheduling letters were timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant failed to demonstrate that the 30-day claim determination period (Insurance Department Regulations [11 NYCRR] § 65-3.8) was tolled. As a result, defendant failed to establish that its denial of claim forms were timely and, thus, that it is not precluded from raising as a defense the failure of plaintiff’s assignor to appear for an EUO (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). [*2]
Accordingly, the judgment is affirmed.
Pesce and Rios, JJ., concur.
Golia, J.P., dissents in a separate memorandum.
Golia, J.P., dissents and votes to reverse the judgment, vacate the order granting plaintiff’s motion for summary judgment, and deny the motion.
I disagree with the assertion by the majority that it was defendant’s burden “to demonstrate that its initial and follow-up requests for verification were timely” in addition to also establishing “that the assignor had failed to appear” for the examinations under oath (EUOs). To the contrary, the Civil Court merely found that defendant had “failed to submit sufficient evidence of the alleged no show.”
Inasmuch as plaintiff did not submit a brief on appeal, it consequently failed to raise any issue as to the sufficiency of the mailing or the timeliness of the verification notices to appear for the EUOs. Clearly, those issues should not be addressed on this appeal. The only issue before us is the decision of the Civil Court, which simply found defendant’s evidence alleging the claimed “no show” was insufficient.
My dissent then confines itself to the only issue addressed on appeal, that is, the sufficiency of the evidence to establish the “alleged no show.”
Two separate certified transcripts were presented by defendant to establish the failure of the assignor to appear for the EUOs. These transcripts were taken at the offices of counsel for plaintiff’s assignor, Ms. Walters, in the presence of a paralegal employed by the assignor’s counsel and an investigator employed by defendant. The certified transcript of the first EUO contains statements by the investigator, on the record, to the effect that Ms. Walters had not appeared even though it was one hour past the time of the examination. That transcript contains no statement by the paralegal employee of Ms. Walters’ attorney who was present.
The second EUO transcript was also certified and taken at the offices of Ms. Walters’ counsel. It contains the statement of the investigator, who states that “I was informed by the receptionist, Jenny, that the insured, Jessica Walters, called . . . and informed them that she would not be able to attend today’s Examination Under Oath.” That unopposed information came directly from Jenny, the agent of the eligible injured person’s attorney.
If the statements submitted by defendant are less than accurate, then it was incumbent upon plaintiff to rebut them. Certainly, it would be an easy contradiction inasmuch as both of the alleged “no shows” took place in the law offices of the eligible injured person’s chosen counsel.
I note the Court of Appeals’ longstanding position that supports the foregoing proposition, to wit, that for the purpose of opposing a summary judgment motion, statements that may be subject to objections should not be precluded from consideration (see Phillips v Kantor & Co., 31 NY2d 307 [1972]).
Compliance with EUO requests is a condition precedent for the recovery of no-fault benefits.
Decision Date: July 22, 2010
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer failed to show its denials were timely, and thus that it was not precluded from asserting the EUO no-show defense, because unproved mailing of the scheduling letters meant the 30-day period was not shown tolled.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to establish that its EUO scheduling letters were timely mailed, so it could not show tolling of the claim determination period.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 260 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Held the EUO no-show defense failed to raise a triable issue because the insurer did not establish that the EUO scheduling letters were timely mailed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.
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.
Cited by
A label shows how the later decision treated this one.
- BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51270(U)) FollowedThe provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action.
- Superior Oxygen & Ortho Supplies, Ltd. v Auto One Ins. Co. (2012 NY Slip Op 50348(U))The insurer failed to prove timely mailing of EUO scheduling letters or tolling and thus failed to avoid preclusion of its EUO nonappearance defense.
- New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness.
Similar decisions
- Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U))The insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
- Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
- Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))The insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence.
- Lender Med. Supply, Inc. v Hartford Ins. Co. (2012 NY Slip Op 50903(U))An insurer's consent to adjourn an EUO prevents it from counting nonappearance on that date as a no-show.