August 5, 2015
Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U))
https://www.beynensonlaw.com/case-law/neptune-med-care-p-c-v-ameriprise-auto-home-ins-2015-ny-slip-op51220u/
- Decided
- August 5, 2015
- Citation
- 2015 NY Slip Op 51220(U) · 48 Misc 3d 139(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 20 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 Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U))
| Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. |
| 2015 NY Slip Op 51220(U) [48 Misc 3d 139(A)] |
| Decided on August 5, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-655 K C
against
Ameriprise Auto & Home Insurance, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered December 6, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint and granted 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, alleging that the claim at issue had been timely and properly denied based upon plaintiff’s failure to appear at duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court denied defendant’s motion on the ground that defendant had not requested the EUOs in a timely manner, and granted plaintiff’s cross motion for summary judgment.
Pursuant to the No-Fault Regulations, “any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [NF-3]” (11 NYCRR 65-3.5 [b] [emphasis added]). Defendant did not request that plaintiff appear for an EUO until more than 15 business days, and even more than 30 calendar days (see generally 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the request was late]), after it had received the bills at issue. Thus, even if the EUO scheduling letters were timely with respect to any other pending claims which may exist but are not before us, thRey were untimely with respect to the bills at issue. Indeed, this would be true even if defendant had tolled the 30-day period within which it was required to pay or deny the bills at issue, by timely requesting verification pursuant to 11 NYCRR 65-3.8 (a), as the Regulations do not provide that such a toll grants an insurer additional opportunities to make requests for verification that would otherwise be untimely. Consequently, the EUO scheduling letters were nullities with respect to the bills at issue and, therefore, defendant’s motion for summary judgment was properly denied (see O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d, 11th & 13th Jud Dists 2015]).
Contrary to defendant’s argument, it did not demonstrate any toll of the 30-day period [*2]within which it was required to pay or deny the bills at issue. Since the record demonstrates that defendant received, but did not timely deny, these bills, plaintiff’s cross motion for summary judgment was properly granted (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: August 05, 2015
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: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer showed no toll because its EUO requests came more than 15 business days after receipt of the bills and were nullities, so the bills were not timely denied and the provider prevailed.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 162 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case
Held the provider's cross motion properly granted because the record showed the insurer received the bills but did not timely deny them, with no toll established.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the EUO scheduling letters nullities for the bills at issue because they were sent more than 15 business days, indeed more than 30 days, after receipt, and an earlier toll did not permit late requests.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
- Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
- Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Cited by (29)
A label shows how the later decision treated this one.
- Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111) FollowedAn EUO request tolls the time to pay or deny a claim, not the deadline to request new verification.
- Chapa Prods. Corp. v MVAIC (2019 NY Slip Op 29341) FollowedAn insurer must deny a claim for failure to provide verification within 30 days after the 120-day response period expires.
- JYW Med., P.C. v IDS Prop. Ins. Co. (2017 NY Slip Op 51800(U)) FollowedAn EUO nonappearance denial need not state the dates of the missed EUOs. Two providers sought assigned no-fault benefits, and the insurer cross-moved for dismissal based on their failure to appear for EUOs. For one provider, the insurer established timely scheduling letters and denials and nonappearance; that provider raised no triable issue.
- Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U)) FollowedThe insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims.
- Bronx Med. Diagnostic, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51793(U)) FollowedThe insurer failed to establish timely EUO scheduling because its first letter was mailed more than 30 days after receipt of the claims.
- RA Med. Servs., P.C. v Lancer Ins. Co. (2022 NY Slip Op 50793(U)) FollowedThe insurer's EUO requests were nullities for the claims at issue because the initial request was sent more than 30 days after receipt.
- Beacon Acupuncture, P.C. v Hertz Claim Mgt. (2019 NY Slip Op 52059(U)) FollowedThe insurer established EUO nonappearance for some claims, but its EUO request was untimely for the remaining claims.
- Pedro Torres-Jimenez, MD PC v Nationwide Affinity Ins. Co. of Am. (2026 NY Slip Op 50073(U)) FollowedA timely verification request's toll does not give an insurer further opportunities to make otherwise untimely verification requests.
- Golden Needle Acupuncture P.C. v MAPFRE Ins. Co. (2016 NY Slip Op 26411) FollowedThe insurer's recorded-statement requests and nonspecific delay letters did not toll the 30-day period to pay or deny claims.
- TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U)) FollowedThe insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
Show all 29 citing decisions
- Renelique v Utica Mut. Ins. Co. (2016 NY Slip Op 51530(U)) Followed
- Sama Physical Therapy, P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 51751(U)) Followed
- Lynbrook PT & OT, PLLC v Ameriprise Ins. Co. (2017 NY Slip Op 51801(U)) Followed
- Recover Med. Servs., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51892(U)) Followed
- Healthway Med. Care, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 50733(U)) Followed
- K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U)) Followed
- Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U)) Followed
- American Chiropractic Care, P.C. v Hereford Ins. Co. (2019 NY Slip Op 51359(U)) Followed
- Tsatskis v Travelers Ins. Co. (2020 NY Slip Op 51323(U)) Followed
- Dr. Orenbakh Psychologist, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 50566(U)) Followed
- LMS Acupuncture, P.C. v Titan Ins. Co. (2017 NY Slip Op 51229(U))
- Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))
- First Stop P.T., P.C. v GEICO Ins. Co. (2025 NY Slip Op 50947(U))
- St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co. (2017 NY Slip Op 50919(U))
- Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))
- Wes Psychological Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 52029(U))
- Success Rehab, PT, P.C. v Hereford Ins. Co. (2019 NY Slip Op 52031(U))
- New York Core Chiropractic, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50599(U))
- American Tr. Ins. Co. v Nexray Med. Imaging PC (2023 NY Slip Op 50953(U))
Similar decisions
- A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
- Neptune Med. Care, P.C. v Praetorian Ins. Co. (2019 NY Slip Op 51052(U))The insurer failed to establish timely mailing of the initial and follow-up EUO and IME scheduling letters.
- Neptune Med. Care, P.C. v Dairyland Ins. Co. (2016 NY Slip Op 51705(U))Neither party was entitled to summary judgment because a factual issue remained whether the insurer timely paid the provider's claim.
- Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion.
- Compas Med., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51360(U))The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits.