March 16, 2015
Longevity Med. Supply, Inc. v Geico Ins. Co. (2015 NY Slip Op 50392(U))
https://www.beynensonlaw.com/case-law/longevity-med-supply-inc-v-geico-ins-co-2015-ny-slip-op50392u/
- Decided
- March 16, 2015
- Citation
- 2015 NY Slip Op 50392(U) · 47 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
- 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 Longevity Med. Supply, Inc. v Geico Ins. Co. (2015 NY Slip Op 50392(U))
| Longevity Med. Supply, Inc. v Geico Ins. Co. |
| 2015 NY Slip Op 50392(U) [47 Misc 3d 128(A)] |
| Decided on March 16, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 16, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2096 Q C
against
Geico Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 14, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
On appeal, plaintiff argues that defendant failed to establish that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs) and that, as a result, plaintiff’s motion for summary judgment should have been granted and defendant’s cross motion for summary judgment dismissing the complaint should have been denied. Contrary to plaintiff’s contention, the affidavits submitted by defendant were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled EUOs. Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 16, 2015
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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected
Held the insurer's affidavits sufficient to establish that the assignor failed to appear for duly scheduled EUOs, so dismissal of the complaint was proper.
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.
- 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
- Longevity Med. Supply, Inc. v Praetorian Ins. Co. (2016 NY Slip Op 50924(U))The insurer's affidavits established that the assignor failed to appear for duly scheduled IMEs. The provider sued to recover assigned no-fault benefits, and the Civil Court denied the insurer's summary judgment motion while limiting the trial issue under CPLR 3212 (g) to the assignor's nonappearance.
- Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))An assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form.
- New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance.
- Ultimate Health Prods., Inc. v American Tr. Ins. Co. (2015 NY Slip Op 51592(U))The insurer established timely EUO notices and denial and the assignor's failure to appear, warranting dismissal of the claim.
- Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))The insurer established the assignor's failure to appear for duly scheduled EUOs, defeating the provider's summary judgment motion.