October 1, 2014

Rutland Med., P.C. v State Farm Ins. Co. (2014 NY Slip Op 24298)

https://www.beynensonlaw.com/case-law/rutland-med-p-c-v-state-farm-ins-co-2014-ny-slip-op-24298/

Court
Civil Court of the City of New York, Kings County
Judge
Cohen, J.
Decided
October 1, 2014
Citation
2014 NY Slip Op 24298 · 45 Misc 3d 1033
Posture
Summary judgment
Outcome
Split result
Later treatment
Followed in 2 later decisions (see Cited by)
Issues
EUO no-show
Legal questions
No-show defense: insurer's proof · No-show: coverage defense or precludable? (see the maps)
Cite as
Rutland Med., P.C. v State Farm Ins. Co., 45 Misc 3d 1033 (Civ Ct, Kings County 2014)

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 provider's timely, specific objections raised factual issues about the reasonableness of the insurer's EUO requests. Before the scheduled EUOs, the provider sought clarification whether document production would suffice and later objected to appearing. The record did not establish whether the insurer responded. The Civil Court, Kings County, granted the insurer's summary judgment motion only to the extent of establishing timely and proper EUO notices, nonappearance and timely denials, which the provider did not contest. Unlike objections first raised after suit, these letters preserved the reasonableness challenge. The matter was to proceed to trial on the provider's prima facie case and the reasonableness of the requests, including whether an unanswered objection excused nonappearance.

Reported in New York Official Reports at Rutland Med., P.C. v State Farm Ins. Co. (2014 NY Slip Op 24298)

Rutland Med., P.C. v State Farm Ins. Co.
2014 NY Slip Op 24298 [45 Misc 3d 1033]
October 1, 2014
Cohen, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, January 1, 2014

[*1]

Rutland Medical, P.C., as Assignee of Ted Nimmons and Another, Plaintiff,
v
State Farm Insurance Company, Defendant.

Civil Court of the City of New York, Kings County, October 1, 2014

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville, for defendant.

Law Office of Stephen Goldblatt, P.C., Brooklyn, for plaintiff.

{**45 Misc 3d at 1034} OPINION OF THE COURT

Devin P. Cohen, J.

Defendant’s motion for summary judgment is decided as follows:

Defendant’s motion is granted to the extent that it established the timely and proper generation and mailing of examination under oath (EUO) scheduling letters and plaintiff’s failure to appear on the scheduled EUO dates of January 18, 2013 and February 13, 2013. Defendant also established that the claims were timely denied.

Plaintiff, in opposition, does not challenge the timely mailing of defendant’s EUO [*2]requests or denials or that plaintiff failed to appear on the scheduled dates. Rather, plaintiff objects to the reasonableness of the EUO requests and attaches copies of letters addressed to defendant’s law firm responding to defendant’s EUO requests. In a letter dated January 17, 2013 plaintiff indicates that “there appears to be a disparity between [the position of the law firm] and that of State Farm.” Specifically, plaintiff requests clarification as to whether defendant was requesting both the production of documents and an EUO or whether defendant would consider the production of the documents to be sufficient. It is unclear whether and to what extent defendant responded to this letter as no responsive letter is included in the papers. Plaintiff’s subsequent letter, dated February 7, 2013, objects to appearing for an EUO and indicates that plaintiff believes it has fully met its obligation under the no-fault policy to comply with all reasonable requests for verification. Again, it is unclear whether defendant responded to plaintiff’s correspondence.

This court previously held in Five Boro Psychological & Licensed Master Social Work Servs., PLLC v GEICO Gen. Ins. Co. (38 Misc 3d 354 [Civ Ct, Kings County 2012, Cohen, J.]) that an objection must be timely to be meaningful. Thus, the court found that an objection to EUO requests raised for the first time after the action was commenced was too late to constitute a legitimate response and was insufficient to preserve an objection to reasonableness of those requests (see Five Boro, 38 Misc 3d 354, 357; see also Viviane Etienne Med. Care, P.C. v{**45 Misc 3d at 1035} State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Here, in contrast, plaintiff offers evidence of a timely and specific objection to the reasonableness of defendant’s EUO requests and, as such, is not precluded from raising that objection in opposition to defendant’s motion (cf. Five Boro, 38 Misc 3d 354; see Viviane Etienne Med. Care, P.C., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U]).

Under the circumstances, plaintiff raises a question of fact with respect to the reasonableness of the EUO requests and whether, if defendant failed to respond, plaintiff’s failure to appear for the EUOs was excusable (cf. Five Boro, 38 Misc 3d 354; see Canarsie Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 1228[A], 2010 NY Slip Op 50950[U] [Civ Ct, Kings County 2010, Ash, J.]). The matter shall proceed to trial on the issues of plaintiff’s prima facie case and the reasonableness of defendant’s EUO requests.

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