October 16, 2020

Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U))

https://www.beynensonlaw.com/case-law/quality-health-supply-corp-v-nationwide-ins-2020-ny-slip-op-51226u/

Court: Appellate Term, Second Department
Decided: October 16, 2020
Citation: 2020 NY Slip Op 51226(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later history: Reversed by Quality Health Supply Corp. v Nationwide Ins. (2023 NY Slip Op 02689)
Later treatment: Criticized in 2, distinguished in 2 and followed in 8 later decisions (see Cited by)
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? (see the maps)

Cite as

Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding. Under 11 NYCRR 65-3.8 (a) (1), the insurer could conclude at that point that a condition precedent to coverage had not been satisfied. Although the insurer asserted three nonappearances, it denied the claims more than 30 days after the second. It therefore failed to establish that it was not precluded from asserting the defense. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion and grant of the provider's cross motion, without passing on the provider's prima facie showing because the insurer raised no issue concerning it.

Reported in New York Official Reports at Quality Health Supply Corp. v Nationwide Ins. (2020 NY Slip Op 51226(U))

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

Quality Health Supply Corp., as Assignee of Anthony, Quiana, Respondent,
against
Nationwide Ins., Appellant.

Hollander Legal Group , P.C. (Allan S. Hollander of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered July 30, 2018. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

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 it had timely denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion and cross-moved for summary judgment. By order entered July 30, 2018, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Where, as here, no other verification request is outstanding (see Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]), the 30-day period for an insurer to pay or deny a claim (see 11 NYCRR 65-3.8 [a] [1]) based upon a failure to appear for an EUO begins to run on the date of the second EUO nonappearance, when an insurer is permitted to conclude that there [*2]was a failure to comply with a condition precedent to coverage (see 11 NYCRR 65-3.8 [a] [1]; Chapa Prods. Corp. v MVAIC, 66 Misc 3d 16 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Veraso Med. Supply Corp. v 21st Century Ins. Co., 61 Misc 3d 146[A], 2018 NY Slip Op 51696[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Defendant asserted that the assignor had failed to appear on September 9, 2016, October 4, 2016, and November 1, 2016. As defendant did not deny the claims until November 14, 2016, which was more than 30 days after the second failure to appear, for the EUO scheduled for October 4, 2016, defendant is not entitled to summary judgment dismissing the complaint because defendant did not demonstrate that it is not precluded from raising its proffered defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Furthermore, as defendant raises no issue with respect to plaintiff’s establishment of its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Accordingly, the order is affirmed.

ALIOTTA, P.J., SIEGAL and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 16, 2020

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: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the insurer had not shown it was not precluded from its EUO no-show defense because the 30 days ran from the second nonappearance and its denial came more than 30 days later.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followedDistinguished or limitedDeclined to follow, questioned, overruled or reversed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category.

Cited in this decision

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

Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50258(U)) FollowedThe insurer's IME nonappearance denials were timely because it issued them within 30 days after receiving requested written verification.
Chapa Prods. Corp. v MVAIC (2019 NY Slip Op 29341) FollowedAn insurer must deny a claim for failure to provide verification within 30 days after the 120-day response period expires.
Veraso Med. Supply Corp. v 21st Century Ins. Co. (2018 NY Slip Op 51696(U)) FollowedThe insurer failed to establish a timely denial after the assignor's alleged EUO nonappearances, defeating its summary judgment cross motion.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.

Cited by (20)

A label shows how the later decision treated this one.

Quality Health Supply Corp. v Nationwide Ins. (2023 NY Slip Op 02689) ReversedThe insurer established timely EUO notices and denials, proper follow-up, and the assignor's nonappearances.
Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340) CriticizedAn untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied.
MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199) CriticizedThe insurer's denial after the assignor's fourth EUO nonappearance was timely despite issuance more than 30 days after the second.
MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U)) DistinguishedEUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it.
FJL Med. Servs. PC v Nationwide Ins. (2021 NY Slip Op 21214) DistinguishedThe insurer's EUO no-show denials were timely because later EUOs were scheduled at the provider's request for adjournments.
FJL Med. Servs., P.C. v Nationwide Ins. (2022 NY Slip Op 51213(U)) FollowedAn insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second.
Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2022 NY Slip Op 22383) FollowedAn insurer's 30-day period to pay or deny resumes at the second EUO nonappearance when no other verification request is outstanding.
Pavlova v 21st Century Ins. Co. (2022 NY Slip Op 50363(U)) FollowedThe insurer failed to establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied.
Clear Water Psychological Servs., P.C. v Mid-Century Ins. Co. (2022 NY Slip Op 50621(U)) FollowedThe insurer failed to establish timely EUO denials because it did not prove that the first scheduled EUO had been mutually rescheduled.
Arcadia Acupuncture, P.C. v Nationwide Ins. Co. (2021 NY Slip Op 51258(U)) FollowedThe provider obtained partial judgment for untimely denials, but disputed EUO convenience barred judgment on later claims.

Show all 20 citing decisions

Similar decisions

AB Quality Health Supply Corp. v Nationwide Ins. (2022 NY Slip Op 50558(U))The insurer established timely mailing of EUO scheduling letters and the assignor's failure to appear, warranting dismissal.
Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U))An insurer may timely schedule more than two EUOs and deny a claim within the required period after the last scheduled EUO. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 50997(U))The insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation.
NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50764(U))The insurer's summary judgment motion based on EUO nonappearance was denied because it failed to establish timely denial.