April 29, 2022

Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))

https://www.beynensonlaw.com/case-law/pavlova-v-21st-century-ins-co-2022-ny-slip-op-50363u/

Court: Appellate Term, Second Department
Decided: April 29, 2022
Citation: 2022 NY Slip Op 50363(U) · 75 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: EUO no-show Timeliness and preclusion Discovery and procedure
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Pavlova v 21st Century Ins. Co., 75 Misc 3d 127(A), 2022 NY Slip Op 50363(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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 establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied. The provider's cross motion remained denied as untimely under the parties' stipulated schedule. The provider neither argued that the cross motion was timely nor offered a reasonable excuse for failing to cross-move during the more than eight months available. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed.

Reported in New York Official Reports at Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))

[*1]

Pavlova v 21st Century Ins. Co.

2022 NY Slip Op 50363(U) [75 Misc 3d 127(A)]

Decided on April 29, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 29, 2022

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

PRESENT: : DONNA-MARIE E. GOLIA, J.P., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ
2020-537 K C

Ksenia Pavlova, D.O., as Assignee of Bowen, Ranardo, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered September 10, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.

Plaintiff correctly argues that defendant’s motion failed to establish that defendant had timely denied plaintiff’s claim after plaintiff’s assignor had allegedly failed to appear at both an initial and a follow-up EUO (see Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]), defendant’s motion for [*2]summary judgment dismissing the complaint should have been denied.

The Civil Court denied plaintiff’s cross motion as untimely pursuant to a schedule which the parties had stipulated to more than nine months earlier. Since plaintiff does not argue, much less establish, that its cross motion was timely or set forth a reasonable excuse for plaintiff’s failure to cross-move during the more than eight months plaintiff had to do so, there is no basis to disturb the Civil Court’s denial of the cross motion as untimely.

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 29, 2022

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: 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: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer failed to show a timely denial after the assignor's alleged nonappearance at both the initial and follow-up EUOs, so it did not show it was not precluded and summary judgment should have been denied.

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

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Cited in this decision

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

Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U)) FollowedThe 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by

A label shows how the later decision treated this one.

AKNY Physical Therapy, PLLC v Lancer Ins. Co. (2022 NY Slip Op 51249(U)) FollowedThe provider failed to establish that its cross motion met the stipulated schedule or offer a reasonable excuse for filing it late.

Similar decisions

Pavlova v Nationwide Ins. (2022 NY Slip Op 50559(U))The insurer established proper mailing of EUO scheduling letters and entitlement to dismissal for the assignor's nonappearance.
Pavlova v Hartford Ins. Co. (2019 NY Slip Op 50693(U))The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial.
Parisien v 21st Century Ins. Co. (2022 NY Slip Op 50362(U))The insurer's summary judgment motion based on the assignor's EUO nonappearance was denied on appeal.
Pavlova v Travelers Ins. Co. (2018 NY Slip Op 50847(U))The provider's mailing affidavit raised a factual issue over whether the insurer received requested verification and the action was premature.
Pavlova v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51632(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.