June 22, 2016

Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50997(U))

https://www.beynensonlaw.com/case-law/professional-health-imaging-p-c-v-state-farm-mut-auto-ins-co-2016-nyslip-op-50997u/

Court: Appellate Term, Second Department
Decided: June 22, 2016
Citation: 2016 NY Slip Op 50997(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Discovery and procedure
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2016 NY Slip Op 50997(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 provider failed to show a timely objection to EUO requests and could not challenge their reasonableness in litigation. The insurer established nonappearance at two duly scheduled EUOs. The provider attached an objection letter without alleging or proving that it had sent it; the letter was dated and marked sent two days after the second nonappearance. Because the provider did not timely object during claims processing, discovery about the requests' reasonableness was unnecessary and did not warrant denial under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment and denying the provider's requests for summary judgment, striking the answer and defenses, and compelling discovery.

Reported in New York Official Reports at Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50997(U))

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

Professional Health Imaging, P.C., as Assignee of Cami Nishon, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered August 8, 2014. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking 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, insofar as appealed from, 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). Insofar as is relevant to this appeal, 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. As limited by its brief, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion and denied the aforementioned branches of 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]).

Plaintiff failed to raise an issue of fact as to whether it had timely responded in any way to the EUO requests at issue. While plaintiff attached one letter allegedly objecting to the EUO in question, plaintiff did not allege, much less prove, that it had actually sent the letter. In any event, the letter is dated, and marked as sent on, June 3, 2011, two days after plaintiff’s second failure to appear for an EUO in this case. As plaintiff failed to timely object to the EUO requests in claims processing, it may not raise any objection to the reasonableness of those requests 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]), and any discovery [*2]relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion (see 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]). Consequently, contrary to plaintiff’s further argument on appeal, there was no outstanding discovery warranting the denial of defendant’s motion pursuant to CPLR 3212 (f).

The issues raised in plaintiff’s remaining arguments are moot and/or lack merit.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Elliot, JJ., concur.

Decision Date: June 22, 2016

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 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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved the provider missed two EUOs; the provider's objection letter, unproven as sent and dated after the second no-show, was untimely, so reasonableness could not be raised or explored in discovery.

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

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

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.
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)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))The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.

Cited by

Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50423(U))An insurer need not disclose the reasons or objective standards for its EUO demands in scheduling letters or in response to a provider's objection.
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.

Similar decisions

Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.
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.
New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51158(U))A party invoking CPLR 3212 (f) must show unavoidable ignorance of critical facts and reasonable attempts to obtain them.
First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50593(U))The insurer established two EUO nonappearances and timely denials, warranting dismissal with prejudice rather than dismissal as premature.