December 6, 2019
Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 51979(U))
https://www.beynensonlaw.com/case-law/omphil-care-inc-v-geico-ins-co-2019-ny-slip-op-51979u/
- Decided
- December 6, 2019
- Citation
- 2019 NY Slip Op 51979(U) · 65 Misc 3d 158(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- 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 Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 51979(U))
| Omphil Care, Inc. v GEICO Ins. Co. |
| 2019 NY Slip Op 51979(U) [65 Misc 3d 158(A)] |
| Decided on December 6, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1494 K C
against
GEICO Ins. Co., Appellant.
Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). As limited by the brief, defendant appeals from so much of an order of the Civil Court entered June 18, 2018 as denied defendant’s cross motion for summary judgment.
In support of its cross motion, defendant submitted an affirmation from the attorney who was to perform the EUOs, which affirmation was sufficient to establish that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, a review of the record establishes that the Civil Court [*2]correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019
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 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 affirmation of the attorney who was to conduct the EUOs established the provider's nonappearance and the letters were properly mailed, so the insurer's cross motion was granted.
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.
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)
Agreed with the lower court that the insurer established timely and proper mailing of its denials as part of the EUO no-show defense.
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.
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 (rules on the question, but another ground decided the case)
Held the record showed the insurer established timely and proper mailing of the EUO scheduling letters and the denial forms.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- 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.
- 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.
Similar decisions
- Omphil Care, Inc. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50899(U))The insurer's summary judgment dismissing the provider's claims for failure to appear for duly scheduled EUOs was affirmed.
- Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2018 NY Slip Op 50864(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for EUO nonappearance.
- Comprehensive Care Physical Therapy, P.C. v GEICO Ins. Co. (2019 NY Slip Op 52070(U))The provider's summary judgment motion was denied and the insurer's cross motion dismissing the complaint for EUO nonappearance was granted.
- Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51602(U))The insurer failed to prove timely mailing of its denial and thus failed to establish that its provider EUO nonappearance defense was not precluded.
- Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51773(U))An insurer need not state objective reasons for EUO requests to establish summary judgment based on a provider's nonappearance.