December 6, 2019

Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U))

https://www.beynensonlaw.com/case-law/restoration-chiropractic-p-c-v-21st-century-ins-co-2019-ny-slip-op51961u/

Court: Appellate Term, Second Department
Decided: December 6, 2019
Citation: 2019 NY Slip Op 51961(U) · 65 Misc 3d 157(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

Restoration Chiropractic, P.C. v 21st Century Ins. Co., 65 Misc 3d 157(A), 2019 NY Slip Op 51961(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 insurer's follow-up EUO letter was untimely because it was mailed more than 10 days after the assignor's first nonappearance. The insurer obtained summary judgment dismissing the provider's assigned no-fault benefits complaint based on the assignor's failure to attend scheduled EUOs. The record established that the follow-up scheduling letter did not satisfy the timing requirement of 11 NYCRR 65-3.5 (b). Following Parisien v 21st Century Ins. Co., the Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.

Reported in New York Official Reports at Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51961(U))

[*1]

Restoration Chiropractic, P.C. v 21st Century Ins. Co.

2019 NY Slip Op 51961(U) [65 Misc 3d 157(A)]

Decided on December 6, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-603 K C

Restoration Chiropractic, P.C., as Assignee of Lopez, Candice, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan and Maryana Feigen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 23, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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).

The record establishes that defendant’s follow-up scheduling letter was mailed more than 10 days after plaintiff’s assignor had failed to appear for the first scheduled EUO. As a result, this follow-up scheduling letter was untimely (see 11 NYCRR 65-3.5 [b]). Consequently, defendant’s motion should have been denied (see Parisien v 21st Century Ins. Co., 62 Misc 3d 150[A], 2019 NY Slip Op 50275[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019

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

Held the insurer's motion should have been denied because its follow-up EUO letter was mailed more than 10 days after the assignor's first nonappearance and was therefore untimely.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

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

Parisien v 21st Century Ins. Co. (2019 NY Slip Op 50275(U)) FollowedThe insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another.

Cited by

American Tr. Ins. Co. v NextStep Healing, Inc. (2023 NY Slip Op 50521(U))The insurer's EUO and medical necessity challenges failed because they were not preserved at the required arbitration levels.

Similar decisions

Restoration Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 51325(U))The insurer established proper mailing of IME scheduling letters and denial forms, as well as the assignor's nonappearance.
BCc Chiropractic, P.C. v Farmers New Century Ins. Co. (2019 NY Slip Op 50680(U))The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground.
AVM Chiropractic, P.C. v 21st Century Ins. Co. (2016 NY Slip Op 51354(U))The insurer established proper mailing of its denial forms and the assignor's failure to appear for EUOs. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits on the EUO nonappearance defense.
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.
ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50782(U))The insurer established that the provider's assignor failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's action for assigned first-party no-fault benefits and denying the provider's cross motion.