December 3, 2013
Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))
https://www.beynensonlaw.com/case-law/olmeur-med-p-c-v-nationwide-gen-ins-co-2013-ny-slip-op52031u/
- Decided
- December 3, 2013
- Citation
- 2013 NY Slip Op 52031(U) · 41 Misc 3d 143(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 2 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 Olmeur Med., P.C. v Nationwide Gen. Ins. Co. (2013 NY Slip Op 52031(U))
| Olmeur Med., P.C. v Nationwide Gen. Ins. Co. |
| 2013 NY Slip Op 52031(U) [41 Misc 3d 143(A)] |
| Decided on December 3, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : WESTON, J.P., RIOS and ALIOTTA, JJ
2012-1043 K C.
against
Nationwide General Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order denied 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 granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon, among other things, plaintiff’s assignor’s failure to appear for scheduled examinations under oath (EUOs). In an order entered March 15, 2012, the Civil Court denied defendant’s motion on the ground that the certificate of conformity accompanying the affidavit, executed out of the state by defendant’s employee, was defective. Defendant appeals from the order and we reverse.
Defendant appropriately sought to cure the defect in its original certificate of conformity by annexing to its reply papers a certificate of conformity which rectified the defect (see Moccia v Carrier Car Rental, Inc., 40 AD3d 504 [2007]; Ave T MPC Corp. v Amica Mut. Ins. Co., 29 Misc 3d 136[A], 2010 NY Slip Op 52009[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]Although the Civil Court held that the corrected certificate of conformity was still not in proper form, we note that Real Property Law § 299-a (2) (a) specifically states that the signature on the certificate of conformity “shall be presumptively genuine” and the qualification of the person signing as a person authorized to make such certificate “shall be presumptively established by the recital thereof in the certificate.” As the certificate of conformity complied with the statutory requirements of Real Property Law § 299-a, the out-of-state affidavit which it accompanied should have been considered by the Civil Court and “treated as if taken within the state” (CPLR 2309 [c]).
In support of its motion for summary judgment, defendant submitted an affirmation
from the attorney who had been responsible for conducting the EUOs at issue. His
affirmation established that the EUO scheduling letters had been mailed to the assignor
in accordance with his law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v
Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]),
and that, based on the attorney’s personal knowledge, the assignor had failed to appear
for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins.
Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc
3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).
The affidavit submitted by defendant’s special claims representative and the out-of-state
affidavit submitted by defendant’s centralized administrative team supervisor (which, as
noted above, was accompanied by a proper certificate of conformity) together established
that the denial of claim forms, which, among other things, denied plaintiff’s claims based
upon the assignor’s failure to appear at the EUOs, had been timely mailed (see St. Vincent’s Hosp. of
Richmond v Government Empls. Ins. Co., 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v
Chubb Group of Ins., 17 Misc 3d 16).
Since an appearance at an EUO is a condition precedent to an insurer’s liability on
a policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1;
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d at 722;
Crotona Hgts. Med., P.C. v
Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U]
[App Term, 2d, 11th & 13th Jud Dists 2010]), and defendant established by admissible
evidence plaintiff’s assignor’s noncompliance with this condition precedent, defendant’s
motion should have been granted. Accordingly, the order is reversed and defendant’s
motion for summary judgment dismissing the complaint is granted.
Weston, J.P., Rios and Aliotta, JJ., concur.
Decision Date: December 03, 2013
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.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice
Held the denial-mailing affidavits, including an out-of-state affidavit with a corrected certificate of conformity, established timely mailing, and the attorney's affirmation proved mailing of the EUO letters.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
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 EUO attorney's affirmation proved the scheduling letters were mailed under the firm's office practice and, from personal knowledge, that the assignor failed to appear at either scheduled EUO.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (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.
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)
Held the insurer's affidavits together established timely mailing of denial forms based on the assignor's failure to appear at the EUOs.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 338 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Ave T MPC Corp. v Amica Mut. Ins. Co. (2010 NY Slip Op 52009(U)) FollowedThe provider's action was premature because the insurer had received no claim forms before suit commenced.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- 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.
- Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U)) FollowedThe insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
Cited by
A label shows how the later decision treated this one.
- Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 27189) FollowedThe insurer's one-day delay in sending a follow-up EUO request did not excuse the provider's four nonappearances on this record.
- Active Chiropractic, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51668(U)) FollowedThe insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue.
- Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 51244(U))The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny.
- Liberty Mut. Ins. Co. v Five Boro Med. Equip., Inc. (2015 NY Slip Op 05891)The insurers proved mailing of EUO letters through counsel's affirmation and obtained a default declaration of no payment obligation.
- Atlantic Radiology Imaging, P.C. v Metropolitan Prop. & Cas. Ins. Co. (2016 NY Slip Op 50321(U))The provider failed to establish a reasonable excuse or potentially meritorious opposition when seeking vacatur of a default summary judgment order.
- A.O.T. Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50288(U))The insurer's attorney established through personal knowledge that the provider failed to appear for both duly scheduled EUOs. The provider's sole appellate argument challenged proof of nonappearance.
Similar decisions
- Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
- Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (2012 NY Slip Op 51628(U))The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures.
- LPM Pharm., Inc. v Nationwide Prop. & Cas. Ins. Co. (2024 NY Slip Op 51191(U))The no-fault regulations do not require EUO notices to be provided in writing.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.
- Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))An assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form.