August 2, 2019

Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U))

https://www.beynensonlaw.com/case-law/zen-acupuncture-p-c-v-ameriprise-ins-co-2019-ny-slip-op-51262u/

Court: Appellate Term, Second Department
Decided: August 2, 2019
Citation: 2019 NY Slip Op 51262(U)
Posture: Summary judgment
Outcome: Split result
Issues: EUO no-show Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof (see the maps)

Cite as

Zen Acupuncture, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 51262(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims. The Appellate Term, Second Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed, leaving both sides' motions denied. The late initial request prevented the insurer from obtaining dismissal based on the provider's EUO nonappearances. The provider independently failed to establish its prima facie entitlement to summary judgment: its proof showed neither that the claims had been untimely denied nor that timely denial forms were conclusory, vague, or without merit as a matter of law.

Reported in New York Official Reports at Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Zen Acupuncture, P.C., as Assignee of Figueroa Lizzette, Respondent,
against
Ameriprise Insurance Company, Appellant.

Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 28, 2017. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross motion for summary judgment 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 appeals from an order of the Civil Court denying defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and granting plaintiff’s cross motion for summary judgment.

Contrary to defendant’s contention, defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the failure to appear for EUOs, since the initial EUO request to plaintiff had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud [*2]Dists 2015]).

Plaintiff’s cross motion for summary judgment should have been denied as the proof submitted by plaintiff failed to establish that the claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s cross motion for summary judgment is denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019

Legal questions (2)

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.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's proof failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit, so its cross motion for summary judgment should have been denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

No-show defense: insurer's proof

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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 initial EUO request was sent more than 30 days after the insurer received the claims, making the requests nullities as to those claims.

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, 101 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. (2015 NY Slip Op 51220(U)) FollowedThe insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days.
O & M Med., P.C. v Travelers Indem. Co. (2015 NY Slip Op 50476(U))The insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Zen Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 50699(U))The provider's summary judgment cross motion was denied because it failed to show an untimely or legally deficient denial.
A.C. Med., P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 51787(U))The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense.
Acupuncture Now, P.C. v American Commerce Ins. Co. (2018 NY Slip Op 51768(U))The insurer's initial EUO request was a nullity for the first claim because it was sent more than 30 days after receipt of that claim.
Easy Care Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51794(U))The insurer established timely mailing of EUO scheduling letters and nonappearance at the scheduled EUOs for the six claims on appeal.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50939(U))The insurer's untimely follow-up EUO notice rendered its denial untimely and precluded the nonappearance defense.