October 11, 2019

21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U))

https://www.beynensonlaw.com/case-law/21st-century-pharm-inc-v-ameriprise-ins-co-2019-ny-slip-op51629u/

Court: Appellate Term, Second Department
Decided: October 11, 2019
Citation: 2019 NY Slip Op 51629(U)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: EUO no-show
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

21st Century Pharm., Inc. v Ameriprise Ins. Co., 2019 NY Slip Op 51629(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.

An insurer need not give objective reasons for EUO requests to establish entitlement to summary judgment based on nonappearance. The provider appealed the portion of an order that, upon reargument, granted the insurer's previously denied motion for summary judgment dismissing assigned no-fault claims. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, explained that the insurer need only demonstrate two duly demanded EUOs, two failures to appear, and timely denial of the claims. It rejected the provider's contention that objective reasons for the EUO requests were also required and affirmed the order, insofar as appealed from, in the insurer's favor.

Reported in New York Official Reports at 21st Century Pharm., Inc. v Ameriprise Ins. Co. (2019 NY Slip Op 51629(U))

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

21st Century Pharmacy, Inc., as Assignee of Christine Parkash, Appellant,
against
Ameriprise Insurance Company, Respondent.

Zara Javakov, P.C. (Zara Javakov of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered March 2, 2018. The order, insofar as appealed from as limited by the brief, upon reargument, granted defendant’s motion for summary judgment dismissing the complaint, which had been denied in an order of that court entered December 9, 2016.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as, upon reargument, granted defendant’s motion for summary judgment dismissing the complaint, which had been denied in an order of that court entered December 9, 2016.

Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting examinations under oath (EUOs) in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the [provider] twice failed to appear, and that the [insurer] issued a timely denial of the claim[]” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, [*2]2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019

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.

No-show defense: insurer's proof

Open the full map

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 did not need to set forth objective reasons for requesting the EUOs to make its prima facie case on the provider's EUO no-show, and affirmed summary judgment.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 518 (this one included) are in the same category.

Cited in this decision

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

Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 51653(U))The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense.

Cited by

A label shows how the later decision treated this one.

21st Century Pharm., Inc. v Integon Natl. Ins. Co. (2020 NY Slip Op 51364(U)) FollowedAn insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance.
NY Wellness Med., P.C. v Nationwide Mut. Ins. Co. (2022 NY Slip Op 50359(U)) FollowedAn insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment.
One RX Chemist, Inc. v Nationwide Mut. Ins. Co. (2026 NY Slip Op 51309(U))The provider failed to raise a triable issue about the reasonableness of the insurer's EUO request.

Similar decisions

A.C. Med., P.C. v Ameriprise Ins. Co. (2020 NY Slip Op 51376(U))The insurer's summary judgment motion based on EUO nonappearance was denied because timely denials were not established.
Actual Chiropractic, P.C. v State Farm Ins. (2019 NY Slip Op 51552(U))An insurer need not set forth objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances.
Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U))The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims.
Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50744(U))An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance.
Bronx Chiropractic Care, P.C. v State Farm Ins. (2019 NY Slip Op 50700(U))An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance.