November 18, 2015

Metro Psychological Servs., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51644(U))

https://www.beynensonlaw.com/case-law/metro-psychological-servs-p-c-v-mercury-cas-co-2015-ny-slip-op-51644u/

Court: Appellate Term, First Department
Decided: November 18, 2015
Citation: 2015 NY Slip Op 51644(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: EUO no-show Verification requests
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Metro Psychological Servs., P.C. v Mercury Cas. Co., 2015 NY Slip Op 51644(U) (App Term, 1st Dept 2015)

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.

An EUO request issued after an assignor misses a rescheduled EUO constitutes a follow-up request under 11 NYCRR 65-3.6 (b). The initial EUO was rescheduled by mutual agreement before its scheduled date, which did not constitute nonappearance. The insurer established timely and proper mailing of notices to the assignor and counsel, and nonappearance at both the rescheduled EUO and the follow-up EUO. The provider raised no factual issue concerning nonappearance, mailing, reasonableness of the notices, or an excuse for noncompliance. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion and granted the motion dismissing the complaint.

Reported in New York Official Reports at Metro Psychological Servs., P.C. v Mercury Cas. Co. (2015 NY Slip Op 51644(U))

[*1]

Metro Psychological Servs., P.C. v Mercury Cas. Co.

2015 NY Slip Op 51644(U)

Decided on November 18, 2015

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 18, 2015

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ.
570600/15

Metro Psychological Services, P.C. a/a/o Prophete Gregory, Plaintiff-Respondent,

against

Mercury Casualty Company, Defendant-Appellant.

Defendant appeals from an order the Civil Court of the City of New York, Bronx County (Joseph E. Capella, J.), entered December 4, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella, J.), entered December 4, 2013, reversed, with $10 costs, and defendant’s motion for summary judgment dismissing the complaint is granted. The Clerk is directed to enter judgment accordingly.

The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for examinations under oath to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]). While the rescheduling of the initial (April 10, 2012) EUO – by mutual agreement of the parties prior to the scheduled date – did not constitute a failure to appear (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U][App Term, 2d, 11th and 13th Jud Dists][2012]), defendant established that the assignor subsequently failed to appear at the time of the rescheduled EUO (May 2, 2012) and follow-up EUO (May 21, 2012). Contrary to Civil Court’s determination, defendant’s rescheduling of the May 2, 2012 EUO upon the assignor’s failure to appear at that EUO, constituted a follow-up EUO request (see 11 NYCRR 65-3.6[b]).

In opposition to defendant’s prima facie showing, plaintiff did not specifically deny the assignor’s nonappearance at the scheduled EUOs, or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705[2011]). Nor did plaintiff raise a triable issue as to whether the assignor’s failure to appear at the (two) scheduled EUOs was excusable (see IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014][in opposition to insurer’s showing that the providers “twice [*2]failed to appear” for EUOs, providers failed to submit evidence of a “reasonable excuse” for noncompliance with the EUO requests]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: November 18, 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.

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 insurer proved timely mailed EUO notices and the assignor's nonappearance at the rescheduled and follow-up EUOs, treating a mutually agreed rescheduling as no nonappearance and the later rescheduling as a valid follow-up, with no excuse shown.

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

Of the 157 decisions on this question in the First Department courts and the Court of Appeals, 89 (this one included) are in the same category. 5 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.

Allstate Ins. Co. v Pierre (2014 NY Slip Op 08921) FollowedFailure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness.
Hertz Corp. v Active Care Med. Supply Corp. (2015 NY Slip Op 00212)A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy.
Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U)) FollowedMutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) FollowedAn assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. (2014 NY Slip Op 02902) FollowedThe providers' unexcused EUO nonappearances breached a condition precedent to coverage and warranted summary judgment for the insurer.

Cited by

A label shows how the later decision treated this one.

Avalon Radiology, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 26182) FollowedAn insurer must supply specific objective justification for a provider's EUO when the provider timely requests that justification.
Park Ave. Chiropractic & Health Care PC v Maya Assur. Co. (2021 NY Slip Op 50804(U)) FollowedA provider's EUO objection written after the scheduled examination date is ineffective and does not excuse nonappearance.
MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))EUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U))The provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.

Similar decisions

Metro Psychological Servs., P.C. v 21st Century N. Am. Ins. Co. (2015 NY Slip Op 50470(U))No provision of No-Fault Regulation 68 requires an insurer to set forth objective standards for requesting an EUO. The lower court denied summary judgment for lack of an objective justification despite finding timely notices, reasonable scheduling and the assignor's nonappearance.
Metro 8 Med. Equip., Inc. v Esurance Ins. Co. (2016 NY Slip Op 50904(U))The insurer established the assignor's repeated EUO nonappearance through an attorney's affirmation and a scheduling employee's affidavit.
Actual Chiropractic, P.C. v Mercury Cas. Co. (2016 NY Slip Op 51435(U))An EUO nonappearance denial is not conclusory or vague as a matter of law merely because it omits the scheduled examination dates.
MDJ Med. PC v Delos Ins. Co. (2016 NY Slip Op 50604(U))The insurer established timely EUO requests, proper mailing and the assignor's nonappearance at two scheduled EUOs. Its EUO letters demonstrated compliance with the request periods in 11 NYCRR 65-3.5 (b) and 65-3.6 (b).
Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51419(U))A provider that did not respond to EUO requests could not later challenge their reasonableness to defeat summary judgment.