June 3, 2016

New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))

https://www.beynensonlaw.com/case-law/new-quality-med-p-c-v-allstate-ins-co-2016-ny-slip-op50872u/

Court: Appellate Term, Second Department
Decided: June 3, 2016
Citation: 2016 NY Slip Op 50872(U) · 51 Misc 3d 152(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

New Quality Med., P.C. v Allstate Ins. Co., 51 Misc 3d 152(A), 2016 NY Slip Op 50872(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to prove the provider's EUO nonappearance through someone with personal knowledge. The insurer sought summary judgment dismissing assigned no-fault claims, asserting timely and proper denials based on the provider's failure to attend duly scheduled EUOs. The provider opposed the motion on the ground, among others, that nonappearance had not been established. Because the insurer submitted no proof from someone with personal knowledge of nonappearance, the Appellate Term, Second Department, reversed the Civil Court's order and denied the insurer's motion. The appellate court expressly reached no other issue.

Reported in New York Official Reports at New Quality Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 50872(U))

[*1]

New Quality Med., P.C. v Allstate Ins. Co.

2016 NY Slip Op 50872(U) [51 Misc 3d 152(A)]

Decided on June 3, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1944 K C

New Quality Medical, P.C., as Assignee of HENRY MUNOZ, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered July 1, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). In opposition to defendant’s motion, plaintiff argued, among other things, that defendant had not established plaintiff’s failure to appear for the EUOs. By order entered July 1, 2013, the Civil Court granted defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion should have been denied (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). In light of the foregoing, we reach no other issue.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 03, 2016

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 failed to prove the nonappearance by someone with personal knowledge

Held the insurer's motion should have been denied because it offered no proof by anyone with personal knowledge that the provider failed to appear for the scheduled EUOs.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.

Similar decisions

NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))The insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation.
Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U))The 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50319(U))The provider's objections to the EUO scheduling letters were not heard because it did not claim to have responded to the requests.
Quality Psychological Servs., P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 50250(U))The insurer failed to establish that EUO scheduling letters were mailed before the scheduled EUO dates, defeating summary judgment.
Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51446(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.