December 22, 2017

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

https://www.beynensonlaw.com/case-law/moon-rehab-p-t-p-c-v-ameriprise-ins-co-2017-ny-slip-op-51877u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51877(U) · 58 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof · No-show: coverage defense or precludable? (see the maps)

Cite as

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co., 58 Misc 3d 142(A), 2017 NY Slip Op 51877(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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's summary judgment dismissal based on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, upheld denial of the provider's cross motion and found the insurer's proof sufficient to establish presumptively timely mailing of the EUO letters and denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.

Reported in New York Official Reports at Moon Rehab, P.T., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51877(U))

[*1]

Moon Rehab, P.T., P.C. v Ameriprise Ins. Co.

2017 NY Slip Op 51877(U) [58 Misc 3d 142(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1069 K C

Moon Rehab, P.T., P.C., as Assignee of Figueroa Lizzette, Appellant,
against
Ameriprise Insurance Company, Respondent.

Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 4, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered March 4, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claims form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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.

Proof of mailing

Open the full map

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 insurer's proof sufficient to raise a presumption that the EUO scheduling letters and the denial of claims form were timely mailed, rejecting the provider's contentions.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

No-show defense: insurer's proof

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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 and the provider's failure to appear for the 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.

No-show: coverage defense or precludable?

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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 (rules on the question, but another ground decided the case)

Found the insurer's proof raised a presumption that the denial of claims form on the EUO no-show ground was timely mailed, supporting dismissal.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decision

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (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.
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

A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))The insurer's summary judgment motion based on EUO nonappearance was denied because timely denials were not established.
Careful Complete Med., P.C. v Hartford Ins. Co. (2017 NY Slip Op 51858(U))The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms.
Active Care Med. Supply Corp v American Tr. Ins. Co. (2017 NY Slip Op 51902(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.
Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U))The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted.
Greenway Med. Supply Corp. v American Tr. Ins. Co. (2017 NY Slip Op 51901(U))The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed.