August 28, 2020
Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50992(U))
https://www.beynensonlaw.com/case-law/psychology-yme-p-c-v-global-liberty-ins-co-of-n-y-2020-ny-slip-op50992u/
- Decided
- August 28, 2020
- Citation
- 2020 NY Slip Op 50992(U) · 68 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. (2020 NY Slip Op 50992(U))
| Psychology YME, P.C. v Global Liberty Ins. Co. of N.Y. |
| 2020 NY Slip Op 50992(U) [68 Misc 3d 131(A)] |
| Decided on August 28, 2020 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 28, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, WAVNY TOUSSAINT, JJ
2018-1624 K C
against
Global Liberty Ins. Co. of N.Y., Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), entered May 16, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint.
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 granting 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).
Contrary to plaintiff’s contention, defendant established as a matter of law that, as to the claim at issue, defendant “twice duly demanded an [EUO] from the [provider’s] assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the [insurer] issued a timely denial of the claim[ ]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]). As a result, since appearance at a duly demanded EUO “is a condition precedent to the insurer’s liability on the policy” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]), contrary to plaintiff’s contention, defendant established its entitlement to summary judgment. Plaintiff’s remaining contentions are raised for the first time on appeal and, in any event, lack merit.
Accordingly, the order is affirmed.
ALIOTTA, P.J., ELLIOT and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 28, 2020
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.
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 established as a matter of law that it twice duly demanded an EUO from the assignor and that the assignor twice failed to appear, warranting summary judgment.
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.
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)
Held the insurer established, among the elements of its EUO no-show defense, that it issued a timely denial of the claim after the assignor twice failed to appear.
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.
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.
- 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.
Similar decisions
- Psychology After Acc., P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 51072(U))The insurer established the assignors' IME nonappearances, and the provider failed to rebut that showing.
- All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
- July, P.T., P.C. v Metropolitan Group Prop. & Cas. Ins. (2022 NY Slip Op 50302(U))The insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts.
- Psychology YME, P.C. v Travelers Ins. (2019 NY Slip Op 51798(U))The insurer proved its verification defense based on the provider's failure to supply requested verification within 120 days.
- All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2014 NY Slip Op 51787(U))The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear.