January 28, 2014
Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))
https://www.beynensonlaw.com/case-law/natural-therapy-acupuncture-p-c-v-state-farm-mut-auto-ins-co-2014-nyslip-op-50134u/
- Decided
- January 28, 2014
- Citation
- 2014 NY Slip Op 50134(U) · 42 Misc 3d 137(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Distinguished in 2 and followed in 1 later decisions (see Cited by)
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 Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 50134(U))
| Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. |
| 2014 NY Slip Op 50134(U) [42 Misc 3d 137 (A)] |
| Decided on January 28, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-1452 K C.
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 17, 2012. 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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.
Contrary to plaintiff’s argument, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with its standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012] Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see CPLR 3212 [f]). Finally, contrary to plaintiff’s argument on appeal, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: January 28, 2014
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.
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
Rejected the provider's challenge to the denials and held the insurer's affidavits established that its denials on the EUO no-show ground were timely mailed.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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.
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
Rejected the provider's argument and held the insurer's affidavits established that the EUO letters and denial forms were timely mailed under its standard office practices and procedures.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
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 letters and nonappearance through the attorney present for the EUOs; the provider's justification objections were barred because it never responded to the requests.
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. 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.
- 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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 50579(U)) FollowedThe provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
- Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) FollowedThe insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
Cited by
A label shows how the later decision treated this one.
- American Chiropractic Care, P.C. v GEICO Ins. (2017 NY Slip Op 27272) DistinguishedAn insurer must provide a good-faith basis for a provider EUO when the provider timely requests an explanation before the scheduled date.
- Medcare Supply Inc. v Travelers Prop. Cas. Co. of Am. (2014 NY Slip Op 51421(U)) DistinguishedThe insurer's attorney's affirmation did not establish personal knowledge of the assignor's failure to appear for two EUOs. Although the insurer proved timely and proper mailing of the EUO letters and denials, the attorney stated only that the attorney was assigned to conduct the EUOs and that no one appeared.
- New Capital Supply, Inc. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 24277) FollowedThe insurer's attorney affirmation established personal knowledge of the provider's failure to appear for two scheduled EUOs. The attorney was present on both dates and stated unequivocally that, had the provider appeared, the attorney would have conducted the EUO or assigned another attorney to do so.
Similar decisions
- Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51137(U))The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.