Actual Chiropractic, P.C. v State Farm Ins., 2019 NY Slip Op 50421(U)(App. Term 2d Dept. 2019)
” Contrary to plaintiff’s contention, 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 [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims” (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, 2d, 11th & 13th Jud Dists 2015]; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]). Here, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed”
I love the “c.f.” to Jaga. It is almost like the proverbial well, you the reader can figure it out. We know what the First Department said in passing and, yes, they are wrong. Having seen Dr. Khait testify, I can see why he went down the proverbial objection letter no-show hell.
One Response
Is the Appellate Term allowed to disagree with any department of the Appellate Division? (Not in the sense of “oh, i disagree sir”. More in the holding contrary to precedent).
While a provider may not be entitled to receive that information at the claims stage, it is fair game for discovery in litigation, which the First Department recognized in Jaga. The Appellate Term’s Cf appears to understand that; however, it refuses to follow the First Department’s precedent, holding that unless a provider objects at the claims stage, it cannot receive any discovery or make any arguments in litigation. That argument was made to the First Department in Jaga and rejected.