March 11, 2014
Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))
https://www.beynensonlaw.com/case-law/right-aid-med-supply-corp-v-utica-mut-ins-co-2014-ny-slip-op50421u/
- Court
- Appellate Term, Second Department
- Decided
- March 11, 2014
- Citation
- 2014 NY Slip Op 50421(U) · 42 Misc 3d 151(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- EUO no-show
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 Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. (2014 NY Slip Op 50421(U))
| Right Aid Med. Supply Corp. v Utica Mut. Ins. Co. |
| 2014 NY Slip Op 50421(U) [42 Misc 3d 151(A)] |
| Decided on March 11, 2014 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2012-1216 K C.
against
Utica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered July 2, 2010. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Insofar as is relevant to this appeal, in this action by a provider to recover assigned first-party no-fault benefits, defendant cross-moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs). Defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion.
Defendant established that the time to pay or deny plaintiff’s claim had been tolled by the timely issuance of examination under oath (EUO) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]); that plaintiff had failed to appear for either of the properly scheduled EUOs; and that the claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Since an assignor’s appearance at an EUO “is a condition precedent to the insurer’s liability on the policy” (see Stephen Fogel Psychological, P.C., 35 AD3d 720, 722 [2006]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: March 11, 2014
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 timely issuance of the EUO scheduling letters and the assignor's failure to appear for either properly scheduled EUO, entitling it to dismissal.
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.
Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?
This decision: Timely denial required as part of the no-show defense, and the insurer showed it (rules on the question, but another ground decided the case)
Held the insurer established that the EUO letters tolled its time and that it timely denied the claims on the no-show ground, so its defense succeeded.
Of the 457 decisions on this question in the Second Department courts and the Court of Appeals, 308 (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)
Held the insurer established timely issuance of its EUO scheduling letters, tolling its time to pay or deny.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 798 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- ARCO Med. N.Y., P.C. v Lancer Ins. Co. (2011 NY Slip Op 52382(U)) FollowedA follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Right Aid Med. Supply Corp. v Hartford Ins. Co. (2015 NY Slip Op 51236(U))The insurer failed to prove EUO nonappearance because its papers did not establish counsel's presence at the designated location.
- New Way Med. Supply Corp. v American Tr. Ins. Co. (2015 NY Slip Op 50809(U))The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance.
- Right Aid Med. Supply Corp. v Nationwide Ins. (2013 NY Slip Op 51746(U))The insurer lost its EUO toll because its delay notice failed to identify the party from whom verification was requested.
- Performance Plus Med., P.C. v Utica Mut. Ins. Co. (2015 NY Slip Op 50399(U))The insurer established timely EUO and IME notices, the assignor's nonappearance and timely denials based on those failures.
- Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. (2016 NY Slip Op 51610(U))The insurer established timely mailing of EUO notices and denials and the assignor's nonappearance; the medical-necessity challenge was unpreserved.