November 2, 2018
Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U))
https://www.beynensonlaw.com/case-law/island-life-chiropractic-p-c-v-state-farm-mut-auto-ins-co-2018-ny-slip-op51552u/
- Court
- Appellate Term, Second Department
- Decided
- November 2, 2018
- Citation
- 2018 NY Slip Op 51552(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- 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 Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51552(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 16, 2015. 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 moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered December 16, 2015, the Civil Court denied defendant’s motion, but, insofar as is relevant here, found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was “Defendant’s practices and procedures regarding its receipt of mail in Atlanta, Georgia.” Defendant appeals, contending that it was entitled to summary judgment dismissing the complaint.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had [*2]twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain Medicine, P.C. v Praetorian Ins. Co., 53 Misc 3d 140[A], 2016 NY Slip Op 51520[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Plaintiff does not challenge that defendant demonstrated its prima facie entitlement to summary judgment, but rather argues that plaintiff raised a triable issue of fact in opposition. However, as plaintiff’s argument lacks merit, the Civil Court should have granted defendant’s motion for summary judgment. We further note that defendant’s transmittal of the claims from one of its offices to another of its offices does not raise a triable issue of fact (see Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co., 59 Misc 3d 145[A], 2018 NY Slip Op 50736[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018
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 entitled to dismissal on the EUO no-show defense because its prima facie case was unchallenged and its transmittal of claims between its own offices raised no triable issue.
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)
Applied the rule that the insurer must show a timely denial as part of its EUO no-show defense and granted judgment because that element, found under CPLR 3212 (g), was unchallenged.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- Integrative Pain Medicine, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51520(U)) FollowedThe insurer failed to establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed.
- Maiga Prods. Corp. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 50736(U)) FollowedAn insurer seeking judgment for EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denials.
Cited by
A label shows how the later decision treated this one.
- Prompt Med. Supply, Inc. v Metropolitan Group Prop. & Cas. Ins (2019 NY Slip Op 51594(U)) FollowedThe insurer failed to establish admissible EUO scheduling letters or proper mailing of those letters and its denials.
Similar decisions
- Island Life Chiropractic Pain Care, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51594(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 51041(U))The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
- Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51045(U))An EUO letter's different contact at the same law firm does not undermine an otherwise sufficient affirmation of nonappearance.
- Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.