MVAIC created issue of fact

VS Care Acupuncture, PC v MVAIC, 2016 NY Slip Op 50764(U)(App. Term 1st Dept. 2016)

“Our review of the record indicates that defendant failed to eliminate all triable issues with respect to whether plaintiff’s assignor filed a notice of intention to make a claim, since its own proof contains conflicting evidence (see Center Candy, Inc. v CJB Food Mart, Inc., 50 AD3d 723 [2008]), specifically, a letter it sent to the assignor stating “we are in receipt of the Notice of Intention to Make Claim”

If the condition precedent to coverage is proof that the Assignor did not send a proper notice of claim, then why would a defendant introduce into their submissions  a notice of intention to make a claim, unless bolstered with evidence that it was untimely or unreasonable?  And to appeal the adverse decision just did not seem wise.

General Construction Law applies (again)

Tam Med. Supply Corp. v Citiwide Auto Leasing, 2016 NY Slip Op 50748(U)(App. Term 2d Dept. 2016)

“Contrary to plaintiff’s arguments on appeal, defendant established a proper practice and procedure of mailing of its denials (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that the denials containing the requisite language had been timely mailed (see General Construction Law §§ 25, 25-a; VS Care Acupuncture v State Farm Mut. Auto. Ins. Co., 46 Misc 3d 141[A], 2015 NY Slip Op 50164[U] [App Term, 1st Dept 2015]; see also General Construction Law § 20 [providing, in pertinent part, that “[t]he day from which any specified period of time is reckoned shall be excluded in making the reckoning”]). Plaintiff’s remaining contention as to defendant’s cross motion lacks merit. Thus, we leave the granting of defendant’s cross motion undisturbed.”

EUO no-show defense sustained

Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 51310(U)(App. Term 2d Dept. 2014)

I often feel like this Plaintiff attorney is seeking to reinvent the wheel.  It is just amazing how many times he appeals the SAME issues and (surprisingly) receives the SAME results.  And each decision comments on one more subtle defect in this particular attorneys arguments.  This is how bad law is made.

“In appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.”

(1) “EUO scheduling letters and the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”

(2) “the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear.”

(3) “Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard ”

(4) “Consequently, discovery relevant to the reasonableness of the EUO requests was not necessary for plaintiff to oppose defendant’s motion”

When a delay letter is not good enough

Hillside OpenMRI, P.C. v Allstate Ins. Co., 2014 NY Slip Op 51143(U)(App. Term 2d Dept. 2014)

With respect to the second cause of action, seeking to recover upon a claim for $878.66, and the third cause of action, seeking attorney’s fees with respect thereto, defendant’s claim representative stated that defendant had received plaintiff’s claim for the sum of $878.66 on July 8, 2010 and that it had denied the claim on October 4, 2010. She also stated that defendant had [*2]sent delay letters, dated July 30, 2010 and September 9, 2010 to plaintiff after the receipt of the claim. The letters informed plaintiff that payment of the claim would be delayed pending an EUO of the injured party. However, an insurer’s delay letters, which request no verification, are insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]). Since defendant did not establish that it had otherwise tolled its time to pay or deny the claims, defendant failed to demonstrate that the claim underlying these causes of action had been timely denied. Thus, the branches of defendant’s motion seeking dismissal of the second and third causes of action were properly denied.”

The question that is present is this: What does a delay letter have to say to preserve an EUO no-show defense?  Does the date of the EUO have to be set forth on the delay letters to the provider?  It is a bit disconcerting because this is not the all purpose “we are delaying your bill, check in with us one day.”  It told the provider why the bill was on hold.  “prejudice” is “surprise.”  No surprise here.  The provider knew what the good hands people were doing.  A senseless decision.

So what did the Second Department mean?

Interboro Ins. Co. v Clennon, 2014 NY Slip Op 00092 (2d Dept. 2014)

While of course I am happy to have won, and, in addition, I can say I have written more IME/EUO no show briefs than I could ever imagine, this case leaves me with a “where are we going” feeling.  I wrote the brief, argued the appeal and know the record, so this opinion – how it was written – was unexpected.

Should I now start filing in Nassau again? Well, it is across the street from my office and the filing rules are a lot more convenient than what I encounter at a Motion Support Part, Room 130.  The clerks are nice there.  For instance, a clerk in Supreme Queens told me today that there was no such thing as a hybrid Article 78/Dec action and started crossing out “Plaintiff” (next to petitioner) and “Defendant” (next to respondent) on my papers.  I decided that I would file my memorandum of law on the return date in the Central Motion Part courtroom.  I shrugged my shoulder since that was not the fight to pick.

So what did Clennon say:

Part One

“The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds” (Argento v Aetna Casualty & Surety Co., 184 AD2d 487, 487-488; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559).”

Argento does not mention preclusion.  It solely states that failing to attend an EUO is fatal to the Claimant’s right of recovery under the policy.  Then Unitrin is mentioned, which is what started this whole coverage storm.  And Unitrin and all of the First Department cases I won that cite to it state that timeliness is irrelevant.

What was not mentioned?  Westchester v. Lincoln.  The court was well aware of that decision as it was in Appellant’s brief and mentioned during argument.  This omission was no accident by the way.

Then the Court states this in one sentence: “Here, the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor.

Was the “timeliness” issue dicta?  In other words, mention it so that way the Court did not have to unequivocally reach the Unitrin issue?  I suspect this is what happened, and I truly believe that through arguing this case.  I think the court passed the buck to the Appellate Term, Second Department, to see what they will do.

By analogy, do any of you remember when the Appellate Term, First Department in 2006 said: “Even assuming, without deciding, that a peer review report may suffice, without more, to establish a prima facie showing of lack of medical necessity” (Vladimir Zlatnick, M.D., P.C. v Travelers Indem. Co., 12 Misc.3d 128(A))?  Now, Plaintiffs in the First Department on appeal depending on the case have to jump through hoops  to beat back summary judgment on the issue of lack of medical necessity.  I think this could be the beginning of the tide change, a slow one at that.

The only problem with my hypothesis is that inasmuch as so few failure to comply cases make it to the Appellate Division, Second Department, it will be many years before my hypothesis is proven correctly or incorrectly.

Part Two

A few more tidbits.  The Court accepted the same affidavit of mailing and no show that was accepted in Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc.3d 143(A) and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146(A).  This is similar to American Transit v. Lucas, where the Appellate Division, First Department, accepted a no-show affidavit that was between “I was there and he did not show” and the conclusory “I am a partner and I know he did not show”.  So, Alrof is dead but W&Z is not revived.  Something in the middle is the law.  In addition, Defendant argued vigorously that my affidavit was not Alrof compliant, so the issue was squarely before the Court.

The court also found persuasive the argument that discovery was waived since there was no challenge to the propriety of the EUO notices during the claims verification sta ge.

I wish I could say there would be more of these cases being appealed to this Court, but this was my only Second Department case (from my 2010 inventory) and I was Respondent.  I think Progressive files a lot of no-show DJ’s in Nassau?

Personal knowledge is well not too personal

Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 2013 NY Slip Op 52054(U)(App. Term 2d Dept. 2013)

“It further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012])”


“For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath”

In this case, the “personal knowledge” was based upon an affidavit more detailed and circumspect than the affidavits circulating around in Alrof and Bright Care.  The case is really an application of ATIC v. Lucas, regarding “personal knowledge.”  While I would not say Alrof is dead, I would note that  a properly detailed business practice affidavit will suffice to demonstrate the no show.


EUO no-show mailing and personal knowledge substantiated

Olmeur Med., P.C. v Nationwide Gen. Ins. Co., 2013 NY Slip Op 52031(U)(App. Term 2d Dept. 2013)

“In support of its motion for summary judgment, defendant submitted an affirmation from the attorney who had been responsible for conducting the EUOs at issue. His affirmation established that the EUO scheduling letters had been mailed to the assignor in accordance with his law firm’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that, based on the attorney’s personal knowledge, the assignor had failed to appear for either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013])”

Note a citing to Alrof v. Safeco

EUO tolling and reasonableness issues

 Eagle Surgical Supply, Inc. v Allstate Indem. Co., 2013 NY Slip Op 52012(U)(App. Term 2d Dept. 2013)

(1) “Plaintiff’s main argument on appeal is that defendant was not entitled to summary judgment because defendant’s first EUO scheduling letter was untimely, resulting in a failure to toll its time to pay or deny the claim and rendering the denial of claim form untimely. Although [*2]this argument is raised for the first time on appeal, it may be considered by this court “since it is one of law appearing on the face of the record and it could not have been avoided had it been raised at the proper juncture” (Navillus Tile, Inc. v George A. Fuller Co., Inc., 83 AD3d 919, 920 [2011]; see also Olim Realty v Lanaj Home Furnishings, 65 AD3d 1318, 1320 [2009]).”

I am not sure I agree, but it is fair enough.

(2) “A review of the file reveals that defendant received the subject claim form on February 17, 2009 and mailed its first EUO scheduling letter on March 23, 2009, 24 business days later. Requests for additional verification are untimely if not made within 15 business days of the insurer’s receipt of the claim form (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). However, since the first EUO request was nine days late, pursuant to Insurance Department Regulations (11 NYCRR) § 65-3.8 (j), defendant’s time to pay or deny the claim was reduced from 30 calendar days to 21 calendar days. Defendant mailed its denial of claim form 20 days after plaintiff failed to show up for the final scheduled EUO. Accordingly, plaintiff’s argument is without merit.”

Assuming this Court refuses to follow Unitrin, Lucas, Leon, Marte-Rosario and Solorzano, the delay is vitiated if it is mailed more than 30-days after the bill is received, notwithstanding the day-for-day reduction in the time to pay or deny for delays sent more than 15 business days receipt of the bill.  See, Nyack v. Gmac.  So, Defendant should have been precluded from raising its defense and the order should have been reversed on the law.

(2) “To the extent plaintiff seeks to argue on appeal that defendant’s EUO request was unwieldy and unduly burdensome, plaintiff does not claim to have responded in any way to the EUO request, and its objections will not now be heard”

This is a reiteration of the law.

EUO preclusion and EBT’s based upon preserved box #18 defense

Megacure Acupuncture, P.C. v Lancer Ins. Co., 2013 NY Slip Op 51994(U)(App. Term 2d Dept. 2013)

(1) “We note that defendant’s February 13, 2007 letter purporting to delay payment of the claims was not mailed within 15 days of defendant’s receipt of any of these claims and, in any event, is insufficient to toll the 30-day statutory time period within which a claim must be paid or denied (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

It looks like the EUO provider delay letters were not timely delayed; therefore, the EUO no-show defense was precluded.

(2) “Although the follow-up EUO scheduling letter was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), where, as here, the verification sought is an EUO, a follow-up request is not premature when sent within 10 days after the failure to appear for the initial scheduled examination (see ARCO Med. NY, P.C., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[A]; ARCO Med., NY, P.C., 34 Misc 3d 135[A], 2011 NY Slip Op 52384[U])”

A follow-up request must be sent within 10-days after the failure to appear for the initial examination

(3) “With respect to defendant’s motion to compel plaintiff to produce Tatyana Kapustina, [*3]L.Ac., and Oleg Shargordoskiy for EBTs, a review of the record indicates that defendant preserved its “billing practices” defense by checking box 18 on the NF-10 denial of claim form to assert that plaintiff’s “fees [were] not in accordance with the fee schedule.”

Checked off Box #18 allows the granting of the EBT

EUO no-show DJ survives numerous “you did not do that” arguments

Praetorian  v. Mercado, Index #: 303993/12 (Sup. Ct. Bx. Co. 2013)

In this declaratory judgment action, an Alrof argument was made; an electronic signature argument was made; a “you cannot file a DJ argument” was made; the you did not prove you mailed it argument was made; and an EUO provision was not in the policy argument was made.  Missing was an argument that there was no justiciable controversy (which is always denied) and that discovery was outstanding (which is usually denied).

The objections to the DJ’s are getting longer as the days are getting shorter.  The common denominator of what is missing is: a non-conclusory affidavit from the EIP that he never received the EUO’/IME notices (See American Transit Ins. Co. v. Bachus) or an affidavit from the EIP that (s)he attended the EUO/IME.