August 28, 2020

Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))

https://www.beynensonlaw.com/case-law/parisien-v-ameriprise-ins-2020-ny-slip-op-50990u/

Court: Appellate Term, Second Department
Decided: August 28, 2020
Citation: 2020 NY Slip Op 50990(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof · No-show: coverage defense or precludable? · Proof of mailing (see the maps)

Cite as

Parisien v Ameriprise Ins., 2020 NY Slip Op 50990(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial. The insurer established mailing of the scheduling letters through standard office practices and procedures and showed that the provider missed both scheduled EUOs. One EUO had been moved to Brooklyn at the provider's request. The insurer timely denied the claim for services rendered after the missed EUOs, and the provider raised no triable issue. Under CPLR 5512 (a), the appeal was deemed taken from the subsequent judgment. The Appellate Term, Second Department, reversed that judgment, vacated the underlying order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.

Reported in New York Official Reports at Parisien v Ameriprise Ins. (2020 NY Slip Op 50990(U))

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

Jules Francois Parisien, M.D., as Assignee of Bamfo, Richard, Respondent,
against
Ameriprise Insurance, Appellant.

Bruno, Gerbino. Soriano & Aitken, LLP (Nathan M. Shapiro 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 (Cenceria P. Edwards, J.), entered April 20, 2018, deemed from a judgment of that court entered May 24, 2018 (see CPLR 5512 [a]). The judgment, entered pursuant to the April 20, 2018 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $248.69.

ORDERED that the judgment is reversed, with $30 costs, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment. Defendant appeals from an order entered April 20, 2018 which denied defendant’s motion and granted plaintiff’s cross motion. We deem the notice of appeal from the order entered April 20, 2018 to be from a judgment which was subsequently entered on May 24, 2018 in favor of plaintiff in the principal sum of $248.69 (see CPLR 5512 [a]).

In its motion, defendant established that the EUO scheduling letters had been mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for the EUO scheduled for June 8, 2016 and the EUO scheduled for July 29, 2016 which had been moved to Brooklyn at plaintiff’s request (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]); and that plaintiff’s claim for services rendered on October 6, 2016 had been timely denied on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co., 41 Misc 3d 140[A], 2013 NY Slip Op 52001[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2011]). As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing.

Accordingly, the judgment is reversed, the order entered April 20, 2018 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted, and plaintiff’s cross motion for summary judgment is denied.

ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020

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.

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved mailing of the EUO letters and the provider's nonappearance at two EUOs, including one moved to Brooklyn at the provider's request, and no triable issue was raised.

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

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.

No-show: coverage defense or precludable?

Open 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)

Listed timely denial of the claim on the EUO no-show ground among the elements the insurer established, and found it shown.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 308 (this one included) are in the same category.

Proof of mailing

Open the full map

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 insurer established that the EUO scheduling letters were mailed under its standard office practices and that the claim was timely denied.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.

Cited in this decision

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

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.
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.
Arco Med. NY, P.C. v Metropolitan Cas. Ins. Co. (2013 NY Slip Op 52001(U)) FollowedThe insurer established its EUO nonappearance defense to four claims but left the provider's awards on two other claims unchallenged.
ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.

Cited by

Dr. Orenbakh Psychologist, P.C. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 50566(U))The insurer proved EUO nonappearance for later claims, but its first EUO request was a nullity for a claim received more than 30 days earlier.
ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.

Similar decisions

Parisien v Travelers Ins. Co. (2022 NY Slip Op 50553(U))The insurer established the provider's failure to attend two duly scheduled EUOs and timely denials on that ground.
Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U))The insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another.
Parisien v Tri State Consumers Ins. Co. (2021 NY Slip Op 50728(U))The insurer's unrebutted IME report established a lack of medical necessity for the provider's subsequent services.
Parisien v Maya Assur. Co. (2018 NY Slip Op 50766(U))The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment.
Parisien v Allstate Ins. Co. (2019 NY Slip Op 51154(U))The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment.