April 25, 2016
Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))
https://www.beynensonlaw.com/case-law/professional-health-imaging-p-c-v-state-farm-mut-auto-ins-co-2016-nyslip-op-50698u/
- Decided
- April 25, 2016
- Citation
- 2016 NY Slip Op 50698(U)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 17 later decisions (see Cited by)
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 Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50698(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
State Farm Mutual Automobile Ins. Co., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered July 7, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands.
ORDERED that the order is affirmed, with $25 costs.
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 or, in the alternative, to strike defendant’s answer and affirmative defenses, and to compel defendant to respond to discovery demands. Plaintiff appeals from an order of the Civil Court granting defendant’s motion and denying plaintiff’s cross motion.
Contrary to plaintiff’s argument on appeal, defendant sufficiently established plaintiff’s failure to appear for the two duly scheduled EUOs (see e.g. T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 44 Misc 3d 141[A], 2014 NY Slip Op 51310[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Indeed, in support of plaintiff’s cross motion, plaintiff’s counsel virtually conceded that plaintiff had failed to appear for the EUOs. Contrary to plaintiff’s further argument, defendant established that it had properly tolled its time to pay the two claims in question (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; see also 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 & 13th Jud Dists 2011]).
We also reject plaintiff’s contention that defendant’s motion was premature in light of outstanding discovery (see CPLR 3212 [f]). Plaintiff did not object to the reasonableness of the EUO requests at the time they were made. Instead, plaintiff improperly demanded that defendant pay a flat, up-front fee of $4,500 for plaintiff to attend the EUO, as opposed to seeking reimbursement for any loss of earnings and reasonable transportation expenses as set forth in the regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff did not object to defendant’s reasons for [*2]seeking the EUO during the claims processing stage, plaintiff may not raise such objections in litigation (see e.g. T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Thus, any discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (cf. CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; 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]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]; Metro Health Prods., Inc., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U]).
Plaintiff’s remaining arguments are moot and/or lack merit.
Accordingly, the order is affirmed.
Elliot, J.P., Weston and Solomon, JJ., concur.
Decision Date: April 25, 2016
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.
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 provider's argument against the denials' timeliness, holding the insurer properly tolled its time to pay the two claims through timely EUO requests and follow-ups, so the no-show defense was not precluded.
Of the 500 decisions on this question in the Second Department courts and the Court of Appeals, 334 (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 sufficiently established the provider's failure to appear for two duly scheduled EUOs, and objections to the reasonableness of the requests not raised during claims processing could not be raised in litigation.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50406(U))The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests.
- Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51310(U))The provider's unanswered EUO requests foreclosed its reasonableness objections and made related discovery unnecessary to oppose summary judgment.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U))A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50402(U))The provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal.
- Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) Contrasted (cf., but see)The 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)) Contrasted (cf., but see)The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.
Cited by (17)
A label shows how the later decision treated this one.
- Moshe v Country-Wide Ins. Co. (2018 NY Slip Op 28220) FollowedA provider owner seeking EUO lost earnings was protected from a second deposition, with the insurer allowed interrogatories.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) FollowedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
- Parisien v Travelers Ins. Co. (2022 NY Slip Op 50622(U)) FollowedThe provider's conditional attendance demands raised no factual issue about whether its EUOs were scheduled at reasonably convenient times.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51456(U)) FollowedThe insurer's summary judgment dismissing the provider's claims for failure to appear for EUOs was affirmed.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51458(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51464(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51497(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51498(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51499(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51500(U)) FollowedThe insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted.
Show all 17 citing decisions
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51501(U)) Followed
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51502(U)) Followed
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51503(U)) Followed
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51504(U)) Followed
- Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51506(U)) Followed
- NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) Followed
- Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U)) Followed
Similar decisions
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50763(U))The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.
- Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51419(U))A provider that did not respond to EUO requests could not later challenge their reasonableness to defeat summary judgment.
- Dynamic Balance Acupuncture, P.C. v State Farm Ins. (2019 NY Slip Op 50171(U))The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter.
- 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.