April 28, 2022
NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))
https://www.beynensonlaw.com/case-law/ny-wellness-med-p-c-v-nationwide-mut-ins-co-2022-ny-slip-op50359u/
- Decided
- April 28, 2022
- Citation
- 2022 NY Slip Op 50359(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 1 later decision (see Cited by)
- Issues
- EUO no-show
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 NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS
against
Nationwide Mutual Insurance Company, Appellant.
Hollander Legal Group , P.C. (Allan S. Hollander and Brian Kaufman of counsel), for appellant. Law Offices of Gabriel & Moroff, P.C. (Jason Moroff and Koenig Pierre of counsel), for respondent.
Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), dated June 7, 2021. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.
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 failed to appear for duly scheduled examinations under oath (EUOs). In an order dated June 7, 2021, the District Court denied the motion, but implicitly found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim form, as well as plaintiff’s failure to appear for the EUOs. The Civil Court further found that the only remaining issue for trial was the reasonableness of defendant’s EUO requests.
To establish its prima facie entitlement to summary judgment dismissing a complaint on [*2]the ground that a provider failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it twice duly demanded an EUO from the provider, that the provider twice failed to appear, and that the insurer issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014])—all elements that the Civil Court found to have been established pursuant to CPLR 3212 (g).
Plaintiff does not argue that defendant did not demonstrate its prima facie case. Rather, plaintiff argues that the grounds for defendant’s EUO requests were not based on objective reasons. However, contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2d Dept 2014]; 21st Century Pharm., Inc. v Ameriprise Ins. Co., 65 Misc 3d 134[A], 2019 NY Slip Op 51629[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; cf. Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671 [1st Dept 2020]; American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [1st Dept 2015]). As plaintiff failed to raise a triable issue of fact, defendant is entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
DRISCOLL, J.P., VOUTSINAS and WARHIT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 28, 2022
Legal questions (2)
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.
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 entitled to summary judgment because mailing and nonappearance were established and the insurer did not have to state objective reasons for its EUO requests to make its prima facie case.
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.
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)
Applied the rule that a timely denial is an element of the insurer's EUO no-show defense and relied on the finding that the denial was timely and properly mailed in granting summary judgment.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
- 21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U)) FollowedAn insurer need not give objective reasons for EUO requests to establish entitlement to summary judgment based on nonappearance.
- Kemper Independence Ins. Co. v AB Med. Supply, Inc. (2020 NY Slip Op 06209) Contrasted (cf., but see)The insurer's summary judgment motion was premature because its objective basis for requesting an EUO was unavailable to the providers.
- American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925) Contrasted (cf., but see)The insurer's summary judgment motion based on the claimant's EUO nonappearance was denied because essential discovery remained outstanding.
Cited by
A label shows how the later decision treated this one.
- Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U)) FollowedAn insurer need not state objective reasons for requesting EUOs as part of its prima facie showing for summary judgment based on nonappearance.
- MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co. (2022 NY Slip Op 51384(U))An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance.
Similar decisions
- MSB Physical Therapy, P.C. v Nationwide Ins. (2022 NY Slip Op 51378(U))The insurer failed to establish timely denial after the provider's second EUO nonappearance or raise a triable issue on that defense.
- GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50397(U))The provider raised no triable issue on the EUO nonappearance defense where the scheduling letters offered virtual attendance.
- 21st Century Pharm., Inc. v Integon Natl. Ins. Co. (2020 NY Slip Op 51364(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Wellness Plaza Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50934(U))The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness.
- Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))An insurer may timely schedule more than two EUOs and deny a claim within the required period after the last scheduled EUO. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.