November 26, 2013
J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))
https://www.beynensonlaw.com/case-law/j-c-healing-touch-rehab-p-c-v-nationwide-ins-2013-ny-slip-op52011u/
- Decided
- November 26, 2013
- Citation
- 2013 NY Slip Op 52011(U) · 41 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Insurer 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 J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))
| J.C. Healing Touch Rehab, P.C. v Nationwide Ins. |
| 2013 NY Slip Op 52011(U) [41 Misc 3d 141(A)] |
| Decided on November 26, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-3242 K C.
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 November 2, 2011. 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. Defendant’s motion papers set forth that defendant had timely denied the claims at issue based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s argument, the affirmation submitted by defendant established that the EUO scheduling letters had been timely mailed in accordance with its law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, while plaintiff argues that certain [*2]letters submitted by defendant, which purported to delay payment of the claims, were insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), in this case the EUO scheduling letters themselves were sufficient to toll the claim determination period.
Finally, plaintiff argues that the affidavit submitted by defendant in order to prove that the denial of claim forms had been timely mailed should not have been considered because it did not comply with CPLR 2309 (c). However, that argument is raised for the first time on appeal, and is therefore waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013
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: Timely denial required as part of the no-show defense, and the insurer showed it
Held the EUO no-show denials timely because the EUO scheduling letters themselves tolled the claim determination period, rejecting the provider's argument that the delay letters could not toll it.
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
Held the affirmation established that the EUO scheduling letters were timely mailed under the law firm's standard office practices; the provider's challenge to the denial-mailing affidavit was waived as raised first on appeal.
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.
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 the EUO scheduling letters under its law firm's standard practices, rejecting the provider's argument, and affirmed dismissal on the EUO no-show.
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.
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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51338(U)) DistinguishedThe insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims.
- Mani Med., P.C. v NY Cent. Mut. Ins. Co. (2008 NY Slip Op 50508(U)) FollowedThe insurer's accident-reconstruction evidence raised a triable issue whether the assignor's injuries arose from the insured accident.
- Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51611(U)) FollowedThe insurer's investigator's affidavit raised a triable coverage issue, and the provider waived its CPLR 2309 (c) objection.
Cited by
A label shows how the later decision treated this one.
- New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U)) FollowedAn 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
- J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co. (2014 NY Slip Op 50969(U))The provider failed to establish either an untimely denial or a timely denial that was legally insufficient.
- Great Health Care Chiropractic, P.C. v Nationwide Ins. (2014 NY Slip Op 51812(U))The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied.
- Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
- SS Med. Care, P.C. v Nationwide Ins. (2013 NY Slip Op 51109(U))The insurer failed to establish proper mailing of EUO and IME scheduling notices supporting its nonappearance defenses.
- NGM Acupuncture, P.C. v Nationwide Ins. Co. (2022 NY Slip Op 51271(U))The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim.