July 31, 2017

Pierre J. Renelique MD, P.C. v Travelers Ins. Co. (2017 NY Slip Op 51047(U))

https://www.beynensonlaw.com/case-law/pierre-j-renelique-md-p-c-v-travelers-ins-co-2017-ny-slip-op51047u/

Court: Civil Court of the City of New York, Kings County
Judge: Rosado, J.
Decided: July 31, 2017
Citation: 2017 NY Slip Op 51047(U) · 56 Misc 3d 1216(A)
Posture: Trial
Outcome: Provider prevailed
Issues: EUO no-show Trial and evidence
Legal questions: No-show defense: insurer's proof · Proof of mailing (see the maps)

Cite as

Pierre J. Renelique MD, P.C. v Travelers Ins. Co., 56 Misc 3d 1216(A), 2017 NY Slip Op 51047(U) (Civ Ct, Kings County 2017)

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's trial witness lacked personal knowledge of the assignor's EUO nonappearances, despite proving timely mailing of the requests. At a bench trial, the parties stipulated that the provider established its prima facie case by timely submitting the bills. The insurer's witness described EUO scheduling procedures and reviewed the file and affirmations from the attorneys assigned to conduct the EUOs. The Civil Court, Kings County, credited the testimony on mailing but found that file review and knowledge of office procedures did not establish personal knowledge of nonappearance. The court awarded judgment to the provider, with statutory interest and attorney fees.

Reported in New York Official Reports at Pierre J. Renelique MD, P.C. v Travelers Ins. Co. (2017 NY Slip Op 51047(U))

[*1]

Pierre J. Renelique MD, P.C. v Travelers Ins. Co.

2017 NY Slip Op 51047(U) [56 Misc 3d 1216(A)]

Decided on July 31, 2017

Civil Court Of The City Of New York, Kings County

Rosado, J.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 31, 2017

Civil Court of the City of New York, Kings County

Pierre J. Renelique MD, P.C. assignee of Brunmaire Yanik, Plaintiff,
against
Travelers Insurance Company, Defendant.

033085/2014

Attorney for Plaintiff:
Mikhail Kopelevich Esq. from Kopelevich & Feldsherova, P.C.,

Attorney for Defendant Heather M. Brown-Osen:
Duane Frankson from the Law Office of Aloy O Ibuzor

Mary V. Rosado, J.

A bench trial was commenced and completed on July 7, 2017. In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that Plaintiff established its prima facie case by timely submitting the bills at issue to Defendant. The burden now shifts to Defendant to show timely mailing of the notices of Examinations Under Oath (hereinafter “EUO”) and the failure of the assignor to attend the scheduled EUOs.

When an issue involves EUOs, a defendant must prove that its EUO requests were timely mailed and that a plaintiff’s assignor failed to appear for same (see Crescent Radiology, PLLC v American Transit Ins. Co., 31 Misc 3d 134[A] [App Term 2d Dept 2011]). Defendant produced Ms. Marcy Miller, an attorney who currently oversees EUO scheduling and the EUO process in the Law Office of Aloy Ibuzor, the firm representing Defendant in this matter. She testified regarding the Defendant’s office procedures when scheduling EUO’s and the procedure followed when an assignor failed to appear for an EUO. Ms. Miller testified that, when an assignor fails to appear for an EUO, a paralegal notifies the assigned claim representative and the assigned attorney drafts and signs an affirmation attesting that they were the attorney assigned to conduct the EUO, that they were present, and they could not conduct the EUO because the assignor failed to appear. Ms. Marcy testified that, after a review of Defendant’s file and the affirmations from the attorneys assigned to conduct the EUOs, she concluded that the assignor failed to appear. The court credits her testimony regarding the preparation and mailing of the scheduling letters [*2]for the April 11, 2013 and May 1, 2013 EUOs and finds that her testimony demonstrates that Defendant timely mailed the EUO requests.

This court, however, does not find that the witness had personal knowledge of the assignor’s failures to appear based solely on her review of the file, the documents therein, and her knowledge regarding the office procedures (see Quality Psychological Servs., P.C. v Travelers Home & Mar. Ins. Co, 39 Misc 3 1490[A][2nd Dept 2013]; see also Alrof, Inc. as assignee of Jonathan Rosario v Safeco National Insurance Company, 39 Misc 3d 130[A][App Term 2nd Dept 2013).

Therefore, based upon the foregoing, judgment is awarded in favor of Plaintiff for $785.12 plus statutory interest, attorneys’ fees as provided by the statute and the statutory costs and disbursements of this action.

This constitutes the Decision and Order of the Court.

Dated: July 31, 2017

Kings, New York

Mary V. Rosado, J.C.C.

Legal questions (2)

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 failed to prove the nonappearance by someone with personal knowledge

Found at trial that the scheduling letters were timely mailed but that the insurer's witness, relying only on the file and office procedures, lacked personal knowledge of the assignor's failures to appear.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Proof of mailing

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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)

Credited the insurer's witness's testimony on preparing and mailing the EUO scheduling letters as proving timely mailing, though the defense failed because she lacked personal knowledge of the assignor's nonappearances.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

Cited in this decision

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

Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U)) FollowedThe insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.

Similar decisions

Pierre J. Renelique, M.D., P.C. v Travelers Ins. Co. (2017 NY Slip Op 51718(U))The insurer's summary judgment motion based on EUO nonappearance was granted as to the first and fourth through seventh causes of action.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
Renelique Med. Servs., P.C. v Travelers Ins. Co. (2018 NY Slip Op 50817(U))The insurer's proof established the provider's EUO nonappearances, and the provider's remaining argument was raised for the first time on appeal.
Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U))The provider's conditional attendance demands raised no factual issue about whether its EUOs were scheduled at reasonably convenient times.
Compas Med., P.C. v Travelers Ins. Co. (2015 NY Slip Op 51568(U))The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof.