April 1, 2022

July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))

https://www.beynensonlaw.com/case-law/july-p-t-p-c-v-metropolitan-group-prop-cas-ins-2022-ny-slip-op50302u/

Court: Appellate Term, Second Department
Decided: April 1, 2022
Citation: 2022 NY Slip Op 50302(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins., 2022 NY Slip Op 50302(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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.

The insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits, challenging only the proof of nonappearance. The affidavit of the special investigator scheduled to conduct the EUOs, accompanied by certified transcripts, established that the assignor failed to appear at either scheduled EUO. This demonstrated noncompliance with a condition precedent to coverage under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order in the insurer's favor.

Reported in New York Official Reports at July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

July, P.T., P.C., as Assignee of Kevon Benfield, Appellant,
against
Metropolitan Group Property and Casualty Ins., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Matthew P. Blum, J.), entered March 10, 2020. 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s sole contention on appeal, the affidavit by defendant’s special investigator who was scheduled to conduct the EUOs, accompanied by certified transcripts of the EUOs, established that the assignor had failed to appear at either of the EUOs (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 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]; Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co., 50 Misc 3d 147[A], 2016 NY Slip Op 50321[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), thereby demonstrating that plaintiff’s assignor had failed to comply with a condition precedent to coverage (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the order is affirmed.

ALIOTTA, P.J., WESTON and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 1, 2022

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

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 affidavit of the investigator scheduled to conduct the EUOs, with certified transcripts, sufficient to establish that the assignor failed to appear for both EUOs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Pavlova v Nationwide Ins. (2021 NY Slip Op 50213(U)) FollowedAn assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor.
TAM Med. Supply Corp. v 21st Century Ins. Co. (2017 NY Slip Op 51510(U)) FollowedThe insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims.
Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co. (2016 NY Slip Op 50321(U)) FollowedThe provider failed to establish a reasonable excuse or potentially meritorious opposition when seeking vacatur of a default summary judgment order.
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.

Similar decisions

Prestige Med., P.C. v Metropolitan Prop. & Cas. Ins. Co. (2022 NY Slip Op 50591(U))EUO scheduling letters identifying the accident date and assignor need not specify the bills to which they pertain.
Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50992(U))The insurer established two duly demanded EUOs, the assignor's two nonappearances, and a timely denial of the claim.
All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U))The insurer failed to establish timely EUO denials because it did not prove that the first scheduled EUO had been mutually rescheduled.
Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co. (2019 NY Slip Op 51617(U))The insurer established timely EUO notices, the assignor's failure to appear twice, and timely denials based on those nonappearances.