October 29, 2020
Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209)
https://www.beynensonlaw.com/case-law/kemper-independence-ins-co-v-ab-med-supply-inc-2020-ny-slip-op06209/
- Decided
- October 29, 2020
- Citation
- 2020 NY Slip Op 06209 · 187 AD3d 671
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Contrasted (cf., but see) in 2 and followed in 5 later decisions (see Cited by)
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209)
| Kemper Independence Ins. Co. v AB Med. Supply, Inc. |
| 2020 NY Slip Op 06209 [187 AD3d 671] |
| October 29, 2020 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Kemper Independence Insurance Company,
Appellant, v AB Medical Supply, Inc., et al., Respondents, et al., Defendants. |
Goldberg, Miller & Rubin, P.C., New York (Eli Shmulik of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for respondents.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered on or about December 10, 2019, which denied as premature plaintiff’s motion for summary judgment declaring that it is not obligated to reimburse defendants-respondents for no-fault claims submitted in connection with a motor vehicle accident, unanimously affirmed, without costs.
Plaintiff no-fault insurer failed to provide the injured claimant’s assignees with the “specific objective justification” for its request that the injured claimant submit to an examination under oath (EUO) to establish proof of claim (11 NYCRR 65-3.5 [e]; see American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As the criteria by which plaintiff determined that an EUO was required constitute facts unavailable to defendants for use in opposing plaintiff’s motion, the motion was premature (CPLR 3212 [f]). Moreover, as the court noted, plaintiff moved for summary judgment before any depositions had been conducted (see e.g. Blech v West Park Presbyt. Church, 97 AD3d 443 [1st Dept 2012]).
We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Renwick, J.P., Gesmer, Kern, Singh, JJ.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Affirmed denial of the insurer's declaratory summary judgment as premature because it never gave the assignees the specific objective justification for requesting the EUO required by 11 NYCRR 65-3.5 (e).
Of the 165 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925) FollowedThe insurer's summary judgment motion based on the claimant's EUO nonappearance was denied because essential discovery remained outstanding.
Cited by
A label shows how the later decision treated this one.
- NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U)) Contrasted (cf., but see)An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
- MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co. (2022 NY Slip Op 51384(U)) Contrasted (cf., but see)An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Country-Wide Ins. Co. v Delacruz (2022 NY Slip Op 03068) FollowedThe insurer's EUO nonappearance motion was premature because it withheld the specific objective justification for requesting the EUO. The Appellate Division, First Department, affirmed denial of summary judgment against the providers under CPLR 3212 (f).
- Kemper Independence Ins. Co. v Accurate Monitoring, LLC (2021 NY Slip Op 21253) FollowedAn insurer must provide specific objective justification for an EUO when the claimant requests it during claims verification.
- Country-Wide Ins. Co. v Delacruz (2021 NY Slip Op 21019) FollowedThe insurer's EUO no-show summary judgment motion failed for missing timeliness proof and outstanding discovery into justification.
- State Farm Mut. Auto. Ins. Co. v Lifeline Med. Imaging, P.C. (2025 NY Slip Op 02025) FollowedThe insurers' EUO-based summary judgment motion was premature because they had not disclosed their objective justification for the EUOs. The insurers sought a declaration of no obligation to pay the provider's bills, alleging nonappearance and refusal to produce a knowledgeable individual.
- Country-Wide Ins. Co. v Henderson (2022 NY Slip Op 51304(U)) FollowedThe insurer failed to document a consistent objective justification for its EUO request, and its summary judgment motion was premature.
- 360 Wellness PT PLLC v State Farm Ins. Co. (2026 NY Slip Op 26206)The insurer established objective justification for continued EUOs through a transcript showing that accident and treatment questions remained.
Similar decisions
- Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C. (2017 NY Slip Op 00916)The insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines.
- Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C. (2020 NY Slip Op 03876)Claimants' failure to sign and return EUO transcripts violates a coverage condition precedent and warrants denial of benefits.
- Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U))The insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional.
- King’S Med. Supply v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50401(U))An insurer cannot deny a claim for EUO nonappearance under the former regulation by invoking a policy's cooperation clause.
- Boris Kleyman, P.C. v Kemper Ins. Co. (2008 NY Slip Op 50877(U))The insurer's illegible peer review reports failed to raise a triable issue of fact concerning medical necessity.