Insurer Need Not Provide Rationale for Provider EUO Demand: Dynamic Balance Acupuncture, P.C. v State Farm Ins.

• Author: Rogak, Lawrence N.
• Position: [COURTSIDE]

Edited by Lawrence N. Rogak

In this no-fault suit, State Farm moved for summary judgment on the grounds of the provider's failure to respond to two EUO requests. Civil Court denied the motion, finding an issue of fact as to the reasonableness of the EUO requests. The Appellate Term reversed, holding that the insurer was not required to respond to the provider's demand for a justification of the EUO requests.--LNR

* Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 9, 2016. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). In an order entered March 9, 2016, the Civil Court denied the motion, but found, in effect pursuant to CPLR 3212 (g), that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, as well as plaintiff's failure to appear for the EUOs. The Civil Court further found that the only remaining issues for trial were the location of the generation of defendant's EUO letters and matters relating to the reasonableness of its EUO requests. Defendant appeals from so much of the order as denied its motion for summary judgment dismissing the complaint.

To establish its prima facie entitlement to summary judgment dismissing a complaint on the ground that a provider had failed to appear for an EUO, an insurer must demonstrate, as a matter of law, that it had twice duly demanded an EUO from the provider, that the provider had twice failed to appear, and that the insurer had issued a timely denial of the claims (see Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; Integrative Pain...