May 21, 2013
Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U))
https://www.beynensonlaw.com/case-law/okslen-acupuncture-p-c-v-lancer-ins-co-2013-ny-slip-op50821u/
- Decided
- May 21, 2013
- Citation
- 2013 NY Slip Op 50821(U) · 39 Misc 3d 144(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Distinguished in 1 and followed in 1 later decisions (see Cited by)
- Legal questions
- Outstanding verification and premature actions (see the maps)
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 Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U))
| Okslen Acupuncture, P.C. v Lancer Ins. Co. |
| 2013 NY Slip Op 50821(U) [39 Misc 3d 144(A)] |
| Decided on May 21, 2013 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports.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, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
570228/13.
against
Lancer Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ruben Franco, J.), entered July 31, 2012, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Ruben Franco, J.), entered July 31, 2012, affirmed, with $10 costs.
The action, seeking recovery of first-party no-fault benefits, is not ripe for summary disposition. The defendant insurer failed to establish, prima facie, that its requests for verification in the form of an examination under oath (EUO) were effective to toll its time to pay or deny the claims at issue. Defendant’s EUO letters of July 18, 2006 and August 2, 2006 preceded its receipt of plaintiff’s August 10, 2006 claim, and thus did not trigger the tolling of the 30-day period (see Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., _ AD3d _, 2013 NY Slip Op 02390 [2nd Dept 2013]). Moreover, triable issues are raised as to whether, assuming defendant properly mailed its August 26, 2006 EUO request, it made the required follow-up request for verification (see 11 NYCRR 65-3.6[b]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: May 21, 2013
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.
Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Fact issues remain on whether the verification defense applies
Held the insurer failed to show its EUO verification requests tolled its time to pay or deny, since the earlier letters preceded receipt of the claim, and triable issues existed whether it made the required follow-up to the later request.
Of the 38 decisions on this question in the First Department courts and the Court of Appeals, 5 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 02390) FollowedThe hospital's UB-04 form was not the functional equivalent of an NF-5 and did not support tolling before receipt of the NF-5.
Cited by
A label shows how the later decision treated this one.
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) DistinguishedThe provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
Similar decisions
- Okslen Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51887(U))The insurer's failure to deny the claim within 30 days precluded its defense that the provider's fees were excessive.
- Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))The insurer failed to show entitlement to depositions because it did not establish timely denials preserving the asserted defenses.
- Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51455(U))The insurer established timely mailing of EUO notices and denials, and the provider's failure to attend the scheduled EUOs. The provider opposed the insurer's summary judgment motion and cross-moved for judgment, challenging notice mailing and proof of nonappearance.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.