May 17, 2023
Quality Health Supply Corp. v Nationwide Ins. (2023 NY Slip Op 02689)
https://www.beynensonlaw.com/case-law/quality-health-supply-corp-v-nationwide-ins-2023-ny-slip-op02689/
- Decided
- May 17, 2023
- Citation
- 2023 NY Slip Op 02689 · 216 AD3d 1013
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Distinguished in 1 and followed in 6 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 Quality Health Supply Corp. v Nationwide Ins. (2023 NY Slip Op 02689)
| Quality Health Supply Corp. v Nationwide Ins. |
| 2023 NY Slip Op 02689 [216 AD3d 1013] |
| May 17, 2023 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Quality Health Supply Corp.,
Respondent, v Nationwide Ins., Appellant. |
Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Jennifer B. Ettenger of counsel), for appellant.
The Rybak Firm, PLLC, Brooklyn, NY (Damin J. Toell of counsel), for respondent.
In an action to recover no-fault benefits, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts dated October 16, 2020. The order affirmed an order of the Civil Court of the City of New York, Kings County (Robin K. Sheares, J.), entered July 20, 2018, denying the defendant’s motion for summary judgment dismissing the complaint and granting the plaintiff’s cross-motion for summary judgment on the complaint.
Ordered that the order dated October 16, 2020, is reversed, on the law, with costs, the defendant’s motion for summary judgment dismissing the complaint is granted, the plaintiff’s cross-motion for summary judgment on the complaint is denied, and the order entered July 20, 2018, is modified accordingly.
The plaintiff, a medical provider, commenced this action, as assignee of no-fault insurance benefits, against the defendant insurer for a judgment in the amount of its claims for medical services provided to the insured. The defendant moved for summary judgment dismissing the complaint, arguing that it was not obligated to pay the no-fault benefits to the plaintiff because the insured assignor failed to appear at three scheduled examinations under oath (hereinafter EUOs). The plaintiff cross-moved for summary judgment on the complaint. By order entered July 20, 2018, the Civil Court denied the defendant’s motion and granted the plaintiff’s cross-motion, and, by order dated October 16, 2020, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts affirmed. The defendant appeals, by permission, from the order dated October 16, 2020.
“Upon receipt of one or more of the prescribed verification forms used to establish proof of claim . . . an insurer has 15 business days within which to request ‘any additional verification required by the insurer to establish proof of claim’ ” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007], quoting 11 NYCRR 65-3.5 [b]). “At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested” (11 NYCRR 65-3.6 [b] [emphasis added]). “The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath[*2]. . . is a material breach of the policy, precluding recovery of the policy proceeds” (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d 755, 756 [2020] [internal quotation marks omitted]; see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]).
Here, the defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the complaint by showing that its letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at the scheduled EUOs, that it timely and properly followed up pursuant to 11 NYCRR 65-3.6 (b), and that it ultimately issued a timely and proper denial of the claims following the insured’s failure to appear at the last scheduled EUO (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; 65-3.8 [a]; Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 756; Interboro Ins. Co. v Clennon, 113 AD3d at 597). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted, and the plaintiff’s cross-motion for summary judgment on the complaint should have been denied.
The defendant’s remaining contention need not be reached in light of our determination. Barros, J.P., Iannacci, Miller and Zayas, JJ., concur.
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
Held the insurer issued a timely and proper denial following the insured's failure to appear at the last of three scheduled EUOs, so its no-show defense was established.
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 showed timely mailed scheduling letters, the insured's nonappearance at the scheduled EUOs and a timely follow-up under the regulation, and the provider raised no triable issue.
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.
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 (rules on the question, but another ground decided the case)
Held the insurer showed its EUO scheduling letters were timely and properly mailed, as part of its prima facie no-show defense.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
- Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801) FollowedThe insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
- 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.
Cited by
A label shows how the later decision treated this one.
- Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2024 NY Slip Op 24111) DistinguishedAn EUO request tolls the time to pay or deny a claim, not the deadline to request new verification.
- GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co. (2024 NY Slip Op 50395(U)) FollowedThe provider failed to raise a triable issue on the insurer's EUO nonappearance defense where virtual attendance was offered.
- Bronx Chiropractic Rehabilitation, P.C. v MVAIC (2024 NY Slip Op 50799(U)) FollowedMVAIC's time to deny or seek verification runs from claim receipt, regardless of whether it has determined covered-person status.
- Northern Med. Care, P.C. v Nationwide Affinity Ins. Co. of Am. (2024 NY Slip Op 51822(U)) FollowedAn 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.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50831(U)) FollowedThe insurer established timely mailing of EUO notices, the provider's nonappearance, and timely, proper denials after the last EUO. In the provider's action for assigned no-fault benefits, the insurer demonstrated timely mailing of initial and follow-up scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls.
- MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op 50830(U)) FollowedThe insurer established timely EUO requests, the provider's nonappearance at each scheduled EUO, and timely, proper denials.
- MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199) FollowedThe insurer's denial after the assignor's fourth EUO nonappearance was timely despite issuance more than 30 days after the second.
- NY Wellness Med., P.C. v MVAIC (2025 NY Slip Op 51165(U))MVAIC failed to establish other available insurance or timely denials preserving its defense of the assignor's EUO nonappearances.
- Bridgeview Supply Corp. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 50190(U))An insurer need not state objective reasons for requesting EUOs as part of its prima facie showing for summary judgment based on nonappearance.
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.
- 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.
- 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.
- MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co. (2022 NY Slip Op 51384(U))An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance.
- LPM Pharm., Inc. v Nationwide Prop. & Cas. Ins. Co. (2024 NY Slip Op 51191(U))The no-fault regulations do not require EUO notices to be provided in writing.