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An EUO defense that was precluded July 26, 2017

St. Locher Med., P.C. v IDS Prop. Cas. Ins. Co., 2017 NY Slip Op 50919(U)(App. Term 2d Dept. 2017)

“As plaintiff argues, defendant’s moving papers failed to establish that the first EUO scheduling letter defendant sent to plaintiff had been timely, since defendant stated that the letter was sent more than 30 days after defendant had received the claims”

Why not call and settle if you are defendant?   This is the law in both the First and Second Departments.

Where was the partner? Not at the office July 26, 2017

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50918(U)(App. Term 2d Dept. 2017)

“As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question”

Interestingly: “no brief filed.”  And, $30 in costs (the maximum the court can award)

EUO letter to Assignor did toll time to pay or deny July 26, 2017

Doctor Goldshteyn Chiropractic, P.C. v ELRAC, Inc., 2017 NY Slip Op 50923(U)(App. Term 2d Dept. 2017)

“Plaintiff’s contention that defendant failed to establish that its time to pay or deny claims seeking to recover the sums of $241.30, $1,310.94, and $1,019.62 was tolled because defendant had not timely mailed EUO scheduling letters to plaintiff’s assignor lacks merit. While plaintiff correctly asserts that the letter from defendant dated January 27, 2011 is a delay letter, defendant established that the first EUO scheduling letter had been timely and properly mailed to plaintiff’s assignor on January 4, 2011 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014])”

This is an interesting case because (I think) it lays out what is necessary to timely delay a bill for pending EUOs/IMEs and, afterwards, denying the same.  Most of the caselaw that has discussed the issue has not been favorable to the carriers.

Here, the carrier presented (1) EUO letter to Assignor; and (2) Timely delay letter to medical provider stating that bill is delayed pending EUO.

I would note that if the EIP attended and the bill was denied on other grounds, you would still need the same proof to show the time to pay or deny is tolled.  Oftentimes (and I have seen it accidentally out of here), the motion-writer thinks that you only need to present the delay to the provider to prove a toll.  This is not the case – do not fall into that trap.

You always need (1) the underlying EUO/IME letter with proof of mailing and (2) proof of attendance to prove the toll.

The DJ as to the provider that never was July 26, 2017

Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 2017 NY Slip Op 27245 (App. Term 2d Dept. 2017)

(1) ” Generally, [i]n the absence of prejudice or surprise to the opposing party, leave to amend a pleading should be freely granted unless the proposed amendment is palpably insufficient or patently devoid of merit’ (G.K. Alan Assoc., Inc. v Lazzari, 44 AD3d 95, 99 [2007]; see CPLR 3025 [b]; Lucido v Mancuso, 49 AD3d 220 [2008]; Trataros Constr., Inc. v New York City School Constr. Auth., 46 AD3d 874 [2007])” (Morris v Queens Long Is. Med. Group, P.C., 49 AD3d 827, 828 [2008]). In the instant case, since Ultimate’s assignor executed the assignment of benefits in favor of Ultimate more than three months prior to the commencement of the declaratory judgment action and the Supreme Court did not award Ameriprise a declaratory judgment against Ultimate, the branch of Ameriprise’s cross motion seeking leave to amend the answer to assert that the action is barred by the doctrine of res judicata should have been denied, as the proposed amendment is patently devoid of merit (see Morris, 49 AD3d at 828; Eagle Surgical Supply, Inc. v AIG Ins. Co., 40 Misc 3d 139[A], 2013 NY Slip Op 51449[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, the branch of Ameriprise’s cross motion seeking summary judgment dismissing the complaint based on the doctrine of res judicata should also have been denied.

(2) Observation.  The Dj was brought in Kings because you can get any short form order you want out of the Default Judgment Motion Part.  In fact, the DJMP is so bad, judges would rather sit as acting SCJ in Civil then hang out there.  But here is a question – could the default motion in Supreme Court have survived a judge reviewing the papers?  We will never know.

Procedurally improper July 25, 2017

Rehabxpress, PT, P.C. v Auto One Ins. Co., 2017 NY Slip Op 27246 (App. Term 2d Dept. 2017)

Mr. Rybak likes to chide me about my not publishing my losses on this blog.  I always like to tell him it is my blog and I can publish what I want.  In all seriousness, sometimes I am guilty of thinking way outside the box and perhaps a few solar systems away.   Give this one a “P” for Pluto the planet that is not a star.

Here, I figured I could take a cost and disbursement judgment, offset it against a Civil Court judgment and be free and clear.  It seemed so logical to me.  Apparently, the gang on the 15th floor at 141 Livingston disagreed with me or, even worse, left open the issue for another day.

First, they stated the partial SOJ was never filed.  It was e-filed but the “filed” one was not placed in the papers.  CPLR 2001 error.  But the real crux of the case was as follows:

“Notwithstanding the foregoing, it was apparently the insurer’s objective to have a portion of the judgment in the Supreme Court declaratory judgment action fully offset the judgment obtained against it in the Civil Court action. While a court may exercise its “inherent authority to set one judgment off against another” (see Joseph Kali Corp. v A. Goldner, Inc., 49 AD3d 397, 398 [2008]; see also Scianna v Scianna, 205 AD2d 750 [1994]), the granting of such relief rests in the discretion of the court (see Beecher v Vogt Mfg. Co., 227 NY 468, 473 [1920]; Kretsch v Denofrio, 137 App Div 617, 619 [1910]). Assuming, without deciding, that the Civil Court possessed the jurisdiction to entertain such an application (cf. Stilwell v Carpenter, 62 NY 639 [1875]), the Civil Court’s determination not to set off the judgments was not an improvident exercise of discretion.”

(Note: my template for this motion says CPLR 5020(c) – it should say 5021(a)(2))