June 17, 2022

Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))

https://www.beynensonlaw.com/case-law/regal-acupuncture-p-c-v-allstate-ins-co-2022-ny-slip-op-50604u/

Court: Appellate Term, Second Department
Decided: June 17, 2022
Citation: 2022 NY Slip Op 50604(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

Regal Acupuncture, P.C. v Allstate Ins. Co., 2022 NY Slip Op 50604(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2022)

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 attendance is required whether the insurer demands the EUO before or after submission of the claim form. The Appellate Term, Second Department, affirmed the order denying the provider summary judgment and granting the insurer's cross motion dismissing the complaint. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court rejected the provider's contention concerning the timing of the EUO demand relative to claim submission. It also found that the insurer established timely and proper mailing of the EUO scheduling letters. The provider's remaining arguments were either raised for the first time on appeal and not considered, or moot.

Reported in New York Official Reports at Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))

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

Regal Acupuncture, P.C., as Assignee of Rahman, Younusur, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the record reflects that defendant demonstrated, prima facie, that the examination under oath (EUO) scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further contention, an “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc 3d 128, 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff’s remaining arguments are either not properly before this court, as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), or are moot.

Accordingly, the order is affirmed.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022

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.

Proof of mailing

Open the full map

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

Held the insurer showed prima facie that the EUO scheduling letters were timely and properly mailed, rejecting the provider's challenge to that proof.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.

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 timely and proper mailing of the EUO scheduling letters and that appearance was required whether the EUO was demanded before or after the claim, so dismissal on the no-show was affirmed.

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, 525 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
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.
Longevity Med. Supply, Inc. v Nationwide Ins. (2020 NY Slip Op 51133(U))An assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form.
LDE Med. Servs., P.C. v Interboro Ins. Co. (2011 NY Slip Op 50946(U))The insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper.

Similar decisions

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))The insurer's untimely follow-up EUO notice rendered its denial untimely and precluded the nonappearance defense.
LMS Acupuncture, P.C. v State Farm Mut. Automotive Ins. Co. (2019 NY Slip Op 50696(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
LMS Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51655(U))An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
Oriental Health Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51761(U))The provider's challenge to ineffective delay letters did not defeat the insurer's summary judgment motion based on EUO nonappearance.
Sovereigh Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50922(U))The insurer's EUO defense failed because scheduling was late for some claims and the insurer rescheduled each EUO before its date.