August 22, 2014

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))

https://www.beynensonlaw.com/case-law/okslen-acupuncture-p-c-v-unitrin-advantage-ins-co-2014-ny-slip-op51290u/

Court: Appellate Term, First Department
Decided: August 22, 2014
Citation: 2014 NY Slip Op 51290(U) · 44 Misc 3d 140(A)
Posture: Other motion
Outcome: Provider prevailed
Issues: Discovery and procedure Timeliness and preclusion

Cite as

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co., 44 Misc 3d 140(A), 2014 NY Slip Op 51290(U) (App Term, 1st Dept 2014)

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 show entitlement to depositions because it did not establish timely denials preserving the asserted defenses. The Civil Court, New York County, conditionally granted dismissal unless the provider complied with a deposition notice concerning excessive treatment and fee schedule defenses. Following Triangle R. Inc. v Progressive Ins. Co., the Appellate Term, First Department, found no affirmative showing that the insurer had preserved those defenses by timely denying the no-fault claim. It reversed the conditional dismissal order and denied the insurer's motion. The court expressly declined to address the provider's alternative argument that the noticed depositions were otherwise unwarranted.

Reported in New York Official Reports at Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co. (2014 NY Slip Op 51290(U))

[*1]

Okslen Acupuncture P.C. v Unitrin Advantage Ins. Co.

2014 NY Slip Op 51290(U) [44 Misc 3d 140(A)]

Decided on August 22, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 22, 2014

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., Ling-Cohan,JJ.
570045/14

Okslen Acupuncture P.C. a/a/o Denvil B. Cleghorn, Plaintiff-Appellant, –
against
Unitrin Advantage Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Robert R. Reed, J.), entered November 26, 2012, which conditionally granted defendant’s motion to dismiss the complaint unless plaintiff complied with defendant’s notice of deposition.

Per Curiam.

Order (Robert R. Reed, J.), entered November 26, 2012, reversed, with $10 costs, and defendant’s motion denied.

The defendant-insurer failed to demonstrate entitlement to depositions relating to its excessive treatment and fee schedule defenses, in the absence of any affirmative showing that it preserved those defenses by timely denying plaintiff’s 2006 first-party no-fault claim (see Triangle R. Inc. v Progressive Ins. Co., 36 Misc 3d 151[A], 2012 NY Slip Op 51685[U][App Term, 1st Dept 2012]). In view of the foregoing, we need not and do not address plaintiff’s alternative argument that the noticed depositions were otherwise unwarranted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: August 22, 2014

Cited in this decision

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

Triangle R. Inc. v Progressive Ins. Co. (2012 NY Slip Op 51685(U)) FollowedAn insurer's untimely denial precludes a fraudulent-billing defense even if the alleged billing was part of a widespread fraud scheme.

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 Travco Ins. Co. (2014 NY Slip Op 51209(U))The provider failed to show that its acupuncture services fell outside the physicians' workers' compensation fee schedule.
Okslen Acupuncture, P.C. v Lancer Ins. Co. (2013 NY Slip Op 50821(U))The insurer failed to establish tolling because its initial EUO letters preceded receipt of the claim and follow-up compliance remained disputed.
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.
Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.