• 347-746-6001
  • contact@beynensonlaw.com
Beynenson Law
Beynenson Law
  • Services
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
  • Services
    • Search
    • No-Fault AI
    • New Decisions
    • Legal Questions
    • No-Fault Regulations
    • Arbitrator Scorecard
    • Award Volume
    • Arbitrator / Carrier Data
    • Provider / Carrier Data
    • Provider / Attorney Data
    • Arbitration Pro Extension
  • About Us
  • Contact
October 27, 2011

Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))

https://www.beynensonlaw.com/case-law/richmond-radiology-p-c-v-american-tr-ins-co-2011-ny-slip-op52012u/

Court
Appellate Term, Second Department
Decided
October 27, 2011
Citation
2011 NY Slip Op 52012(U) · 33 Misc 3d 135(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
EUO no-show
Legal questions
No-show defense: insurer's proof (see the maps)
Cite as
Richmond Radiology, P.C. v American Tr. Ins. Co., 33 Misc 3d 135(A), 2011 NY Slip Op 52012(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims. The provider's sole appellate argument was that the insurer had not proved those failures to appear. The affidavit of the investigator responsible for conducting the EUOs established that the assignor missed the scheduled examinations. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, appearance at an EUO is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, treated the appeal as one from the judgment under CPLR 5512 (a) and affirmed the judgment entered upon denial of the provider's motion and grant of the insurer's cross motion.

Reported in New York Official Reports at Richmond Radiology, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52012(U))

[*1]
Richmond Radiology, P.C. v American Tr. Ins. Co.
2011 NY Slip Op 52012(U) [33 Misc 3d 135(A)]
Decided on October 27, 2011
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 October 27, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1035 Q C.
Richmond Radiology, P.C. as Assignee of LEA PEREZ, Appellant,

against

American Transit Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Judi Orlow, J.), entered March 11, 2010, deemed from a judgment of the same court entered April 2, 2010 (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]). The judgment, entered pursuant to the March 11, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint, awarded defendant the sum of $60.

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order denying its motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint. We deem plaintiff’s appeal to be from the judgment entered pursuant to the order (see CPLR 5512 [a]; Neuman v Otto, 114 AD2d 791 [1985]).

Plaintiff’s sole argument on appeal is that defendant did not establish that plaintiff’s assignor had failed to appear for examinations under oath (EUOs). However, a review of the record reveals that the affidavit of defendant’s investigator, who was responsible for conducting the EUOs, established that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Since an appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Insurance Department Regulations [11 NYCRR] § 65—1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722), the judgment is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 2011

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the affidavit of the investigator responsible for conducting the EUOs established that the assignor failed to appear for the scheduled EUOs, so summary judgment for the insurer was proper.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 753
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 68 decisions (52 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 86 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 74 decisions (34 Defense proved, 14 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 19 decisions (1 Defense proved, 8 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
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.

  • 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.
  • Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co. (2010 NY Slip Op 50716(U)) FollowedThe insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel.
  • W & Z Acupuncture, P.C. v Amex Assur. Co. (2009 NY Slip Op 51732(U)) FollowedThe insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance.

Similar decisions

  • Atlantic Radiology Imaging, P.C. v Esurance Ins. Co. (2016 NY Slip Op 50315(U))The provider's challenges to proof of EUO mailing and nonappearance failed because mailing was established and the wrong proof was challenged.
  • Crescent Radiology, PLLC v American Tr. Ins. Co. (2011 NY Slip Op 50622(U))The insurer established timely mailing of EUO notices and denials and the assignor's failure to appear at two scheduled EUOs. The provider obtained summary judgment after the District Court found insufficient objective justification for the EUO request.
  • Lde Med. Servs., P.C. v Encompass Ins. (2010 NY Slip Op 51845(U))The insurer established the assignor's failure to appear for duly scheduled EUOs, defeating the provider's summary judgment motion.
  • All Boro Psychological Servs., P.C. v Hartford Ins. Co. (2012 NY Slip Op 51849(U))The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint.
  • All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51346(U))A provider's appearance at a duly requested EUO is a condition precedent to the insurer's liability under the policy.
Beynenson Law

Tech-driven New York no-fault collections for healthcare providers.

About the firm

Contact

  • East Hampton, New York

  • 347-746-6001
  • contact@beynensonlaw.com
  • Contact form

Case Law

  • Search
  • No-Fault AI
  • New Decisions
  • Legal Questions
  • No-Fault Regulations

Arbitration Data

  • Arbitrator Scorecard
  • Award Volume
  • Arbitrator / Carrier Data
  • Provider / Carrier Data
  • Provider / Attorney Data
  • Arbitration Pro Extension

©2026 The Beynenson Law Firm, PC. Terms of Use Privacy Policy

Site by khrystev.dev

Attorney Advertising. Prior results do not guarantee a similar outcome. This website provides general information, not legal advice, and using it does not create an attorney-client relationship. Do not send confidential information through this site.