October 15, 2013
Right Aid Med. Supply Corp. v Nationwide Ins. (2013 NY Slip Op 51746(U))
https://www.beynensonlaw.com/case-law/right-aid-med-supply-corp-v-nationwide-ins-2013-ny-slip-op51746u/
- Decided
- October 15, 2013
- Citation
- 2013 NY Slip Op 51746(U) · 41 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
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 Right Aid Med. Supply Corp. v Nationwide Ins. (2013 NY Slip Op 51746(U))
| Right Aid Med. Supply Corp. v Nationwide Ins. |
| 2013 NY Slip Op 51746(U) [41 Misc 3d 131(A)] |
| Decided on October 15, 2013 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2408 K C.
against
Nationwide Ins., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered June 13, 2011. 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, finding that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant’s denial of the claims was untimely.
The claim forms at issue were received by defendant on November 23, 2009 and November 24, 2009, respectively. It is undisputed that defendant did not deny the claims until January 12, 2010. Defendant demonstrated that, on November 19, 2009, prior to its receipt of the claim forms at issue, it had mailed a letter scheduling an EUO for December 4, 2009 to plaintiff’s assignor. (It is noted defendant has established that all mailings in this case were done in accordance with its standard office practices and procedures [see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 (2008); Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 (App Term, 2d & 11th Jud Dists 2007)]). Consequently, a toll of defendant’s time to pay or deny the claims at issue went into effect at the time they were submitted (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Defendant further showed that it had mailed a second letter rescheduling the EUO for December 10, 2009 at plaintiff’s assignor’s request, and a follow-up letter within 10 days after plaintiff’s assignors had failed to appear on December 10, 2009, scheduling the EUO for January 8, 2010. However, defendant was also required, at the same time it mailed its final EUO scheduling letter, to inform plaintiff of the reasons why the claim was delayed “by identifying in writing the missing verification and the party from whom it was requested” (Insurance Department Regulations [*2][NYCRR] § 65-3.6 [b]). As argued by plaintiff on appeal, defendant’s December 11, 2009 letter to plaintiff failed to specifically identify the party from whom the EUO had been requested. Since defendant failed to demonstrate that it had complied with Insurance Department Regulations (NYCRR) § 65-3.6 (b), it lost the benefit of the toll. As a result, defendant failed to demonstrate that its denial of claim form had been timely mailed, and it was therefore not entitled to summary judgment dismissing the complaint.
Accordingly, the order is reversed and defendant’s motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 15, 2013
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: No-show defense is subject to preclusion and fails for want of a timely, proper denial
Held the insurer lost the toll from its EUO requests because its follow-up delay notice did not identify the party from whom the EUO was requested, so the denial was not shown timely and summary judgment was denied.
Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (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 did not show its requests met the regulatory timing, follow-up or justification requirements
Held the EUO no-show defense failed because the insurer did not comply with 65-3.6 (b) when sending its final EUO letter, failing to identify the party from whom the EUO was requested, so the toll was lost.
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.
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)
Noted the insurer established that all its mailings, including the pre-claim EUO scheduling letter and follow-ups, were made under its standard office practices and procedures.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (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.
- Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
Similar decisions
- Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))An assignor's appearance at an EUO is a condition precedent to the insurer's liability under the policy.
- Right Aid Med. Supply Corp. v Hartford Ins. Co. (2015 NY Slip Op 51236(U))The insurer failed to prove EUO nonappearance because its papers did not establish counsel's presence at the designated location.
- J.C. Healing Touch Rehab, P.C. v Nationwide Ins. (2013 NY Slip Op 52011(U))The insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period.
- SS Med. Care, P.C. v Nationwide Ins. (2013 NY Slip Op 51109(U))The insurer failed to establish proper mailing of EUO and IME scheduling notices supporting its nonappearance defenses.
- 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.