August 12, 2010
Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51455(U))
https://www.beynensonlaw.com/case-law/points-of-health-acupuncture-p-c-v-lancer-ins-co-2010-ny-slip-op51455u/
- Decided
- August 12, 2010
- Citation
- 2010 NY Slip Op 51455(U) · 28 Misc 3d 137(A)
- 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 Points of Health Acupuncture, P.C. v Lancer Ins. Co. (2010 NY Slip Op 51455(U))
| Points of Health Acupuncture, P.C. v Lancer Ins. Co. |
| 2010 NY Slip Op 51455(U) [28 Misc 3d 137(A)] |
| Decided on August 12, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-1141 K C.
against
Lancer Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered January 13, 2009. The order denied defendant’s motion for summary judgment and granted plaintiff’s cross motion for summary judgment.
ORDERED that the order is reversed without costs, 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, among other things, summary judgment on the ground that plaintiff had failed to
appear for two scheduled examinations under oath (EUOs).
Plaintiff opposed the motion and cross-moved for summary judgment, arguing, among
other things, that defendant’s denial of plaintiff’s claims should be held to be untimely in that
defendant had failed to establish the timely mailing of the EUO scheduling letters and also had
failed to establish that plaintiff did not appear for the EUOs. The Civil Court denied defendant’s
motion and granted plaintiff’s cross motion, finding that defendant had failed to establish the
timely mailing of the denial of claim forms and the EUO scheduling letters, and also had failed
to establish that plaintiff did not appear for the scheduled EUOs. The instant appeal by defendant
ensued.
Contrary to the Civil Court’s findings, defendant established the timely mailing of the EUO scheduling letters. Defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO in which he set forth in detail his firm’s standard office practice and procedure for the mailing of EUO scheduling letters (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In addition, counsel alleged facts sufficient to establish that plaintiff had failed to appear at counsel’s law office for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 [*2]Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since the appearance of the plaintiff at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the Civil Court should have granted defendant’s motion for summary judgment dismissing the complaint. We note that, contrary to the Civil Court’s finding, the affidavit submitted by defendant’s no-fault specialist established that defendant timely mailed its denial of claim forms.
Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
Pesce, P.J., and Golia, J., concur.
Rios, J., dissents in a separate memorandum.
Rios, J., dissents and votes to affirm the order in the following memorandum:
I would affirm the order of the Civil Court. While an examination under oath (EUO) is
mandated when timely requested by the insurance carrier, here defendant failed to present an
affidavit from anyone with personal knowledge that the plaintiff did not appear for the EUO.
Contrary to the finding by the majority, defense counsel fails to explain how he knows that
plaintiff failed to appear for the EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35
AD3d 720 [2006]).
Decision Date: August 12, 2010
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.
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
Rejected the lower court's finding that the denials were not shown timely mailed, holding the no-fault specialist's affidavit established timely mailing of the denials on the EUO no-show ground.
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.
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
Reversed findings that mailing was unproved, holding the EUO law firm partner's detailed description of office mailing practice and the specialist's affidavit established timely mailing of the scheduling letters and denials.
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 proved the EUO no-show defense through the law firm's mailing practice and counsel's account of the provider's nonappearance at the firm's office.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50230(U))The insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded.
- 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.
- W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U))The insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.
Similar decisions
- LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
- Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51045(U))An EUO letter's different contact at the same law firm does not undermine an otherwise sufficient affirmation of nonappearance.
- LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- 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.
- GLM Med., P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 50194(U))EUO scheduling letters need not highlight the time and place in bold or larger type.