December 3, 2021
RX for You v Nationwide Ins. Co. of Am. (2021 NY Slip Op 51171(U))
https://www.beynensonlaw.com/case-law/rx-for-you-v-nationwide-ins-co-of-am-2021-ny-slip-op-51171u/
- Decided
- December 3, 2021
- Citation
- 2021 NY Slip Op 51171(U)
- Posture
- Summary judgment
- Outcome
- Split result
- Issues
- EUO no-show
- Legal questions
- No-show defense: insurer's proof (see the maps)
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 RX for You v Nationwide Ins. Co. of Am. (2021 NY Slip Op 51171(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Nationwide Insurance Company of America, Respondent.
Gary Tsirelman, P.C. (Darya Klein of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered March 18, 2019. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant.
ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment on the ground that plaintiff’s assignor had failed to appear at duly scheduled examinations under oath (EUOs). Plaintiff cross-moved for summary judgment or, in the alternative, for a “finding that Plaintiff’s prima facie case has been established,” and an order sanctioning defendant. Insofar as is relevant to this appeal, by order entered March 18, 2019, the Civil Court granted defendant’s motion and denied the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case had been established” and an order sanctioning defendant.
Upon a review of the record, we find that a triable issue of fact exists as to whether the EUOs were scheduled to be held at a place which was “reasonably convenient” to plaintiff (see 11 NYCRR 65-3.5 [e]; Parisien v Metlife Auto & Home, 68 Misc 3d 126[A], 2020 NY Slip Op 50845[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). In addition, there is also an issue of fact as to whether, prior to the EUO scheduled for October 14, 2016, the parties mutually agreed to reschedule the EUO (see DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
Plaintiff’s contention that the Civil Court should have granted the branches of plaintiff’s cross motion seeking a “finding that Plaintiff’s prima facie case has been established” and an order sanctioning defendant lacks merit.
Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.
ALIOTTA, P.J., ELLIOT and GOLIA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 3, 2021
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Proof on the no-show raises a question of fact; neither side wins the point as a matter of law
Held triable issues existed on whether the EUOs were scheduled at a place reasonably convenient to the claimant and whether the parties had mutually agreed to reschedule one EUO, so summary judgment was denied.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 24 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Dvs Chiropractic, P.C. v Interboro Ins. Co. (2012 NY Slip Op 51443(U)) FollowedMutually rescheduling an EUO before its scheduled date does not constitute a failure to appear.
Similar decisions
- Town RX Inc. v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51853(U))The insurer established mailing of EUO scheduling letters and the provider's failure to appear at properly scheduled EUOs. The Appellate Term, First Department, reversed the order, denied the provider's cross-motion for summary judgment, and granted the insurer's motion dismissing the no-fault complaint.
- LPM Pharm., Inc. v Nationwide Prop. & Cas. Ins. Co. (2024 NY Slip Op 51191(U))The no-fault regulations do not require EUO notices to be provided in writing.
- NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U))An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
- ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50795(U))The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures.
- One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2025 NY Slip Op 51848(U))The insurer established mailing of EUO scheduling letters and the provider's failure to appear at properly scheduled EUOs. The Appellate Term, First Department, reversed the order denying the insurer's unopposed summary judgment motion, granted the motion, and dismissed the provider's no-fault complaint.