October 22, 2024
State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
https://www.beynensonlaw.com/case-law/state-farm-mut-auto-ins-co-v-equinox-physical-therapy-p-c-2024-ny-slip-op-05193/
- Decided
- October 22, 2024
- Citation
- 2024 NY Slip Op 05193
- Posture
- Summary judgment
- Outcome
- Insurer 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 State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. (2024 NY Slip Op 05193)
| State Farm Mut. Auto. Ins. Co. v Equinox Physical Therapy, P.C. |
| 2024 NY Slip Op 05193 |
| Decided on October 22, 2024 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and subject to revision before publication in the Official Reports. |
Decided and Entered: October 22, 2024
Before: Webber, J.P., Friedman, Mendez, Shulman, O’Neill Levy, JJ.
Index No. 160355/20 Appeal No. 2863 Case No. 2023-03172
v
Equinox Physical Therapy, P.C., et al., Defendants, Grand Medical Supply Corp. et al., Defendants-Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Rivkin Radler LLP, Uniondale (Stuart M. Bodoff of counsel), for respondent.
Order, Supreme Court, New York County (David B. Cohen, J.), entered on or about April 14, 2023, which granted plaintiff insurer’s motion for summary judgment on its causes of action for declaratory judgment, unanimously affirmed, with costs.
Plaintiff established its prima facie entitlement to summary judgment on its first cause of action for declaratory relief by submitting evidence that claimants failed to appear at properly scheduled examinations under oath (EUOs), thus vitiating the insurance policy (see PV Holding Corp. v Hank Ross Med., P.C., 188 AD3d 429, 430 [1st Dept 2020]). A claim specialist submitted an affidavit of merit and affidavits of service for the EUO notices sent to the claimants’ residences directing them to appear for two separate EUOs. In addition, plaintiff submitted an attorney’s affirmation, based on the attorney’s personal knowledge, averring that the claimants failed to appear for their scheduled EUOs and attaching deposition transcripts memorializing the claimants’ nonappearance at the EUOs. Because the record demonstrates that plaintiff mailed its notices to take the claimants’ EUOs before it received defendants’ no-fault verification forms, plaintiff did not have to comply with the 15-day time frame for sending EUO notices set forth in 11 NYCRR 65-3.5 (see State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City LLC, 195 AD3d 454, 455 [1st Dept 2021]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 469 [1st Dept 2016]).
In opposition, defendants failed to raise a triable issue of fact. Defendants offer nothing more than speculation to support their argument that they need further discovery, nor does the record support the argument. Defendants have also not submitted an affidavit to establish that essential facts may exist but cannot yet be stated (CPLR 3212[f]; 354 Chauncey Realty, LLC v Brownstone Agency, Inc., 213 AD3d 544, 545 [1st Dept 2023]).
Because the policy is vitiated, State Farm did not have to establish that it timely denied defendants’ claims (see PV Holding Corp., 188 AD3d at 430).
We have considered defendants’ remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: October 22, 2024
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.
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 insurer proved mailed EUO notices and nonappearance by an attorney with personal knowledge, and pre-claim notices were exempt from the 65-3.5 time frame; speculative need for discovery raised no issue.
Of the 165 decisions on this question in the First Department courts and the Court of Appeals, 94 (this one included) are in the same category.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: No-show voids coverage; insurer need not show a timely denial (rules on the question, but another ground decided the case)
Held that because the EUO no-shows vitiated the policy, the insurer did not have to establish that it timely denied the claims.
Of the 36 decisions on this question in the First Department courts and the Court of Appeals, 29 (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)
Accepted the claim specialist's affidavit and affidavits of service as proof that the EUO notices were sent to the claimants' residences.
Of the 161 decisions on this question in the First Department courts and the Court of Appeals, 110 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City, LLC (2021 NY Slip Op 03536) FollowedThe insurer established entitlement to a default declaration of noncoverage based on a founded belief that the collision was staged.
- Mapfre Ins. Co. of N.Y. v Manoo (2016 NY Slip Op 04446) FollowedEUO requests made before receipt of a claim form are not subject to the verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6.
Similar decisions
- Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 51246(U))The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance.
- Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 50421(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance.
- New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51158(U))A party invoking CPLR 3212 (f) must show unavoidable ignorance of critical facts and reasonable attempts to obtain them.
- Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response.
- Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 51880(U))The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary.