December 22, 2017

Recover Med. Servs., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51892(U))

https://www.beynensonlaw.com/case-law/recover-med-servs-p-c-v-ameriprise-ins-co-2017-ny-slip-op51892u/

Court: Appellate Term, Second Department
Decided: December 22, 2017
Citation: 2017 NY Slip Op 51892(U) · 58 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Split result
Issues: EUO no-show Timeliness and preclusion Verification requests
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Recover Med. Servs., P.C. v Ameriprise Ins. Co., 58 Misc 3d 143(A), 2017 NY Slip Op 51892(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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.

EUO requests sent more than 30 days after receipt of bills are nullities as to those bills. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment dismissing claims on bills received between January 26 and March 8, 2012, because its EUO requests were sent more than 30 days later. Dismissal based on EUO nonappearance remained in place for three other bills. As to those bills, the court rejected the provider's argument that 11 NYCRR 65-3.6 (b) required a delay letter to its attorney with the follow-up EUO letter. That requirement arises only when verification is sought from someone other than the provider; the court described the EUO as sought from the provider.

Reported in New York Official Reports at Recover Med. Servs., P.C. v Ameriprise Ins. Co. (2017 NY Slip Op 51892(U))

[*1]

Recover Med. Servs., P.C. v Ameriprise Ins. Co.

2017 NY Slip Op 51892(U) [58 Misc 3d 143(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1619 K C

Recover Medical Services, P.C., as Assignee of Anastasiya Mishchenko, Appellant,
against
Ameriprise Insurance Company, Respondent.

Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted 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).

Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012, as the EUO requests at issue had been sent more than 30 days after defendant had received those bills, and, therefore, the requests were nullities with respect to those bills (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, [*2]11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing those portions of the complaint should have been denied.

With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017

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 did not show its requests met the regulatory timing, follow-up or justification requirements (rules on the question, but another ground decided the case)

Held the EUO requests nullities for bills received more than 30 days before the requests were sent, while rejecting the argument that a delay letter to the provider's attorney was required for the remaining bills.

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

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 101 (this one included) are in the same category.

Cited in this decision

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

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U)) FollowedThe insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
Advantage Radiology, P.C. v Nationwide Mut. Ins. Co. (2017 NY Slip Op 27061) FollowedAn insurer need not send counsel a delay letter when verification is sought directly from the provider.
GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co. (2012 NY Slip Op 52195(U))The insurer established that the provider's claim was premature because properly mailed verification requests went unanswered.

Similar decisions

Lynbrook PT & OT, PLLC v Ameriprise Ins. Co. (2017 NY Slip Op 51801(U))The insurer's EUO defense failed on four claims because the first scheduling letter was sent more than 30 days after receipt.
K.O. Med., P.C. v IDS Prop. Cas. Ins. Co. (2019 NY Slip Op 50687(U))The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
First Class Med., P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 50477(U))The insurer's EUO letters were sufficient because they identified the assignor, accident date and file number.
Careful Complete Med., P.C. v Delos Ins. Co. (2017 NY Slip Op 51867(U))The insurer's EUO requests were nullities because the initial request was sent more than 30 days after receipt of the claims.