December 19, 2014

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))

https://www.beynensonlaw.com/case-law/optimal-well-being-chiropractic-p-c-v-ameriprise-auto-home-ins-2014ny-slip-op-51858u/

Court: Appellate Term, Second Department
Decided: December 19, 2014
Citation: 2014 NY Slip Op 51858(U) · 46 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins., 46 Misc 3d 133(A), 2014 NY Slip Op 51858(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 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 prove the provider's EUO nonappearances through someone with personal knowledge. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits after Civil Court granted its summary judgment motion and denied the insurer's cross motion. The insurer relied on denials based on the provider's failure to attend duly scheduled EUOs, but submitted no proof of the nonappearances from a person with personal knowledge, as required under Alrof, Inc. v Safeco Natl. Ins. Co. The insurer raised no appellate issue concerning the provider's prima facie case, and the court expressly declined to review that determination.

Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins. (2014 NY Slip Op 51858(U))

[*1]

Optimal Well-Being Chiropractic, P.c. v Ameriprise Auto & Home Ins.

2014 NY Slip Op 51858(U) [46 Misc 3d 133(A)]

Decided on December 19, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2014

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1062 Q C

Optimal Well-Being Chiropractic, P.C. as Assignee of BERTHA RAMOS, Respondent,
against
Ameriprise Auto & Home Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 7, 2012, deemed from a judgment of the same court entered April 4, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 7, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,019.62.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant opposed plaintiff’s motion and sought summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). However, [*2]defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see 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]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 126[A], 2014 NY Slip Op 50952[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 19, 2014

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.

No-show defense: insurer's proof

Open 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 failed to prove the nonappearance by someone with personal knowledge

Held the insurer's EUO no-show defense failed because it submitted no proof from anyone with personal knowledge of the provider's nonappearance at the EUOs.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Cited in this decision

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
SP Chiropractic, P.C. v IDS Prop. & Cas. Ins. Co. (2014 NY Slip Op 50952(U))The insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.

Similar decisions

A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 51446(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion.
Optimal Well-Being Chiropractic, P.C. v Utica Mut. Ins. Co. (2014 NY Slip Op 51233(U))The insurer failed to establish that its IME nonappearance and services-not-rendered defenses were free from preclusion.
Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.