June 3, 2022
Pavlova v Nationwide Ins. (2022 NY Slip Op 50559(U))
https://www.beynensonlaw.com/case-law/pavlova-v-nationwide-ins-2022-ny-slip-op-50559u/
- Decided
- June 3, 2022
- Citation
- 2022 NY Slip Op 50559(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Pavlova v Nationwide Ins. (2022 NY Slip Op 50559(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 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 affirmed, with $25 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.
To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider’s assignor had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the assignor, that the assignor had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). A review of the record establishes that, contrary to plaintiff’s sole contention with respect to defendant’s motion, defendant established proper mailing of the EUO scheduling letters. As a result, defendant established its prima facie entitlement to summary judgment dismissing the complaint (see Interboro Ins. Co. v Clennon, 113 AD3d at 597). Plaintiff’s contention that defendant needed, [*2]but failed, to demonstrate that the EUO scheduling letters were timely mailed after defendant’s receipt of the NF-2 form is raised for the first time on appeal and, in any event, lacks merit, and is contrary to Insurance Law article 51 and the regulations promulgated thereunder (see Excel Prods., Inc. v Ameriprise Auto & Home, 71 Misc 3d 136[A], 2021 NY Slip Op 50435[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, 70 Misc 3d 141[A], 2021 NY Slip Op 50135[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; 11 NYCRR 65-3.5 [a], [d]; Appendix 13).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 3, 2022
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 insurer established proper mailing of the EUO scheduling letters, rejecting the provider's sole contention on the motion, and rejected as meritless the argument that the letters had to follow receipt of the NF-2.
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.
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 made its prima facie no-show showing by proving proper mailing of the EUO scheduling letters, and rejected the unpreserved argument that the letters had to be mailed after receipt of the NF-2.
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)
Applied the rule that the insurer must show two demanded EUOs, two nonappearances and a timely denial, and found the insurer's prima facie showing complete once mailing of the scheduling letters was established.
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.
- 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.
- Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U))The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.
- City Anesthesia Healthcare, P.C. v Erie Ins. Co. of N.Y. (2021 NY Slip Op 50135(U))A pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2.
Similar decisions
- Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U))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.
- PFJ Med. Care, P.C. v Nationwide Ins. (2022 NY Slip Op 50570(U))The insurer's counsel affirmations and EUO transcripts established the provider's failure to appear for EUOs. In this action for assigned first-party no-fault benefits, the provider appealed the denial of its summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
- 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.
- 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.
- 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.