Keep beating a dead horse… It is not coming back to life

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 2019 NY Slip Op 51684(U)(App. Term 2d Dept. 2019)

“Furthermore, as this court has repeatedly stated, defendant was not required to set forth objective reasons for requesting 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 [*2][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]….”

If you feel the Court is wrong and you know what the outcome will be, you are best to file an action is a different Department or in a federal court and hope for a different outcome. This appears to be a foolish use of resources in everyone’s part.

EUO no-show reversed after trial

Acupuncture Approach, P.C. v Global Liberty Ins. Co. of NY, 2019 NY Slip Op 51631(U)(App. Term 2d Dept. 2019)

“At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether the letters scheduling plaintiff’s assignor’s examinations under oath (EUOs) were timely and properly mailed. The only witness at trial was an employee of defendant who testified as to defendant’s policies and procedures regarding mailing EUO scheduling letters.

Contrary to the finding of the Civil Court, defendant established that the initial and follow-up letters scheduling an EUO had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).”

Well, the representative was credible.

EUO no show?

Ultimate Health Prods., Inc. v Travelers Ins. Co., 2019 NY Slip Op 51620(U)(App. Term 2d Dept. 2019)

EUO no-show case: dismissal affirmed

“In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility [*2](see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824 [2008]). Upon a review of the testimony and evidence which was admitted at trial without objection, we find no basis to disturb the Civil Court’s finding. “

Well this is not surprising.

No objective basis necessary

Actual Chiropractic, P.C. v State Farm Ins., 2019 NY Slip Op 51552(U)(App. Term 2d Dept 2019)

“Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting the 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[]” 

Well heck, where have we seen this before? Appealing the same issue and expecting different results? Definition of insanity?

EUO bust statement

Right Aid Med. Supply Corp. v Ameriprise Auto & Home, 2019 NY Slip Op 51270(U)(App. Term 2d Dept. 2019)

They are the best evidence of the no-show. New York considers them business records as well as being an affidavit. Yet, the practitioner who fails to properly utter certain things on the record will doom the no-show case.

“Contrary to the finding of the Civil Court, the transcript of the second EUO does not state that [*2]the EUO, which was scheduled to commence at 10 a.m., “was commenced” at 10:51 a.m. Rather it was at 10:51 a.m. that the attorney began putting his statement on the record, at which point he stated that he had been waiting approximately an hour for plaintiff to appear. As plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant is entitled to summary judgment dismissing the complaint. “

EUO demands untimely

Zen Acupuncture, P.C. v Ameriprise Ins. Co., 2019 NY Slip Op 51262(U)(App. Term 2d Dept. 2019)

“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 “

What was the purpose of this appeal? Was defeating a summary judgment motion where Plaintiff, at the end of the day, will prevail upon a trial a proper use of resources? If the carrier had to pay Plaintiff hourly attorney fees, would this appeal have transpired?

Asking for a friend.

Certified Mail and Regular Mail

Central Park Physical Medicine & Rehab., P.C. v IDS Prop. & Cas. Ins. Co., 2019 NY Slip Op 51148(U)(App. Term 2d Dept. 2019)

(1) “While the District Court held that defendant had failed to establish that the follow-up EUO scheduling letter had been mailed by certified mail, that finding, even if correct, would not excuse the failure of plaintiff to appear for the duly scheduled EUOs, since the record does not contain any evidence showing that the mailing of the EUO scheduling letters to plaintiff by first-class mail had been insufficient”

(2) “Defendant further demonstrated that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the denial of claim forms, which denied the claims on the ground that plaintiff had failed to appear for the duly scheduled EUOs. Plaintiff failed to raise a triable issue of fact in opposition to defendant’s prima facie showing “

An objective standard is not necessary

New Way Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51158(U)(App. Term 2d Dept. 2019)

“This court has held on multiple occasions that since the Appellate Division, Second Department, stated that an insurer need only establish 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 claims, an insurer does not need to set forth the objective reasons for the requested EUOs as part of its prima facie showing of entitlement to judgment as a matter of law”

Helpful holdings

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 51041(U)(App. Term 2d Dept. 2019)

“We note that neither defendant’s transmittal of the claims from one of its offices to another of its offices nor the location of the office within which the timely EUO scheduling letters were generated raises a triable issue of fact.”

Oleg’s Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51045(U)(App. Term 2d Dept. 2019)

“We note that an EUO request letter which lists a contact at defendant’s law firm which is different from the attorney at the same law firm signing the otherwise sufficient affirmation of nonappearance of plaintiff at the duly scheduled EUO does not raise a triable issue of fact. “

Triable issue of fact as to non-appearance?

Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51038(U)(App. Term 2d Dept. 2019)

“In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint “

So this case should now devolve into a deposition of the provider to find out what number he called and when called. Of course, we want the phone records to show that indeed (s)he did call. And if the evidence is not there? Wire fraud? Perjury? Civil Rico? The imagination knows no boundaries.

Alas Lifespan Wellness, Pt, P.C. v Citywide Auto Leasing, Inc., 2019 NY Slip Op 51040(U)(App. Term 2d Dept. 2019)

“Plaintiff failed to raise an issue of fact in opposition to defendant’s motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled”

This is a thorny area of law. What is a reasonable cancellation? We all like bright line rules. These make Article 75’s possible, Civil appeals more certain and allow a better degree of predictability. Like many, I do not like when I cannot determine the right answer from an other common set of facts.