August 21, 2020
American Tr. Ins. Co. v Martinez (2020 NY Slip Op 50930(U))
https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-martinez-2020-ny-slip-op-50930u/
- Judge
- Gerald Lebovits, J.
- Decided
- August 21, 2020
- Citation
- 2020 NY Slip Op 50930(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- No-show defense: insurer's proof · Effect of insurer's declaratory judgment (see the maps)
Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.
Summary
Editorial summary by Beynenson Law, not part of the court’s decision.
Reported in New York Official Reports at American Tr. Ins. Co. v Martinez (2020 NY Slip Op 50930(U))
American Transit
Insurance Company, Plaintiff,
against Jeremy Martinez, EMPRESS AMBULANCE SERVICE, FOREST PARK ACUPUNCTURE PC, NEIGHBORHOOD MEDICAL HEALTH CARE PC, NEW YORK HEIGHTS MEDICAL PC, PAIN PHYSICIANS NY PLLC, WELLMART RX INC, Defendants. |
651486/2019
Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.
Law Offices of Gary Tsirelman P.C., Brooklyn, NY (Jung Pryjma of counsel), for defendant Wellmart RX Inc.
Gerald Lebovits, J.
This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Jeremy Martinez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Martinez assigned the right to collect no-fault benefits under that policy to various treating medical providers, including defendant Wellmart RX Inc. Wellmart applied for no-fault benefits, which American Transit denied.
American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Martinez or to the other defendants (all medical-provider assignees of Martinez). Wellmart was the only defendant that appeared in the action. American Transit moved for default judgment under CPLR 3215 against Martinez and several of the other non-appearing defendants.
This court granted the default-judgment motion without opposition. The court issued a declaration that Martinez and the non-appearing providers “are not entitled to no-fault benefits as a result of a motor vehicle accident involving Jeremy Martinez . . . due to Jeremy Martinez’s failure to appear for duly scheduled independent medical examinations.” (NYSCEF No. 34 at 1-2 [capitalization omitted].) The court also severed and continued the action as against the remaining defendants, including Wellmart. (See id. at 2.)
American Transit now moves for summary judgment under CPLR 3212 against Wellmart. The motion is denied.
DISCUSSION
The Effect of This Court’s Prior Default-Judgment OrderAmerican Transit argues that because Wellmart is Martinez’s assignee, Wellmart’s claim for benefits is derivative of Martinez’s rights under the no-fault policy—and thus that the default judgment against Martinez ousted Wellmart’s right to claim benefits. This court disagrees. Decades ago, the Appellate Division held that when an assignment of no-fault benefits is made prior to the institution of legal action, a decision on default against the assignor does not bar the assignee from asserting a claim to no-fault benefits. (See Lakeside Hosp. v Government Empls. Ins. Co., 70 AD2d 658, 658 [2d Dept 1979], citing Gramatan Home Inv. Corp. v Lopez, 46 NY2d 481, 486-487 [1979].)
To be sure, in Lakeland Hospital the court noted that the assignee was not a party to the prior arbitration. Here, as American Transit points out, Wellmart is a party defendant. But although Wellmart is a party to this action, it was not a party to the prior motion. To the contrary, American Transit’s motion papers expressly stated that “[n]o relief is sought at this time with respect to” Wellmart. (NYSCEF No. 20 at 1.) This court’s prior order in this action, although it “awarded a default judgment to [American Transit] against [Wellmart’s] assignor . . . did not declare the rights of [American Transit] as against [Wellmart].” The default-judgment order thus does not have preclusive effect on the current summary-judgment motion. (Jamaica Wellness Medical, P.C. v Mercury Casualty Co., 2018 NY Slip Op 51128[U], at *2 (App Term 2d Dept 2018]; accord Ultimate Health Prods., Inc. v Ameriprise Auto & Home, 57 Misc 3d 9, 11 [App Term 2d Dept 2017].)
American Transit argues that the grant of default judgment against Martinez had the effect of declaring that the no-fault policy was void, leaving Martinez without any claim to benefits that he could [*2]have assigned to Wellmart in the first place. But the judgment that American Transit requested from this court, and which this court entered, did not reach so far. As noted above, the default judgment merely declared that Wellmart (and the other non-appearing defendants) are not entitled to benefits, without going on to declare that the no-fault policy itself was void. (See NYSCEF No. 34 at 1-2.) In any event, in Lakeland Hospital, the arbitration decision entered on the assignor’s default sustained the insurer’s argument that the assignor had no claim to benefits as a result of her no-fault policy having been canceled outright prior to the occurrence—and thus prior to any assignment—for nonpayment of premiums. (See 70 AD2d at 658.) The Second Department nonetheless held that this prior arbitration decision did not preclude the assignee from claiming a right to benefits. (See id.)
American Transit thus is not entitled to summary judgment against Wellmart based merely on this court’s prior default-judgment order against Martinez.
Whether American Transit is Entitled to Summary Judgment on the Merits
Alternatively, American Transit argues that Martinez’s failure to appear for scheduled independent medical examinations (IMEs) defeats coverage under the no-fault policy, and thus forecloses Wellmart’s claim to benefits. This court is not persuaded.
A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) One such requirement is that if the insurer requests additional verification of a no-fault claim in the form of an IME, the IME must be scheduled to occur “within 30 calendar days from the date of receipt of the prescribed verification forms.” (11 NYCRR § 65-3.5 [d].) American Transit has not shown that it satisfied this 30-calendar-day timeframe. The documents submitted by American Transit show at most that the first IME was scheduled to be held 26 days after the date of the scheduling notice. (See NYSCEF No. 41 at 17.) Those documents do not reflect when American Transit received the prescribed verification form, as required to determine whether the IME’s scheduled date satisfied the 30-day requirement.[FN1] Given this failure of proof, American Transit has not satisfied its initial prima facie burden at summary judgment. (See Longevity Medical Supply, 131 AD3d at 841.)[FN2]
American Transit argues that these deadlines apply only to “medical examinations that are necessary to determine if [a] particular claim should be paid,” as opposed to “being scheduled for a more broad reason, ie to determine, generally, if the claimant needs future treatment.” (NYSCEF No. 47 at 12-13.) Even assuming for the sake of argument that this interpretive argument is correct, it does not avail American Transit here.
The record evidence on this motion reflects only that American Transit received Martinez’s NF-2 benefits application on October 2, 2017 (see NYSCEF No. 41 at 11-14 [mailroom stamp and date/time footer]), and prepared an IME scheduling notice 10 days later, on October 12, 2017 (see id. at 17). That short time period itself suggests a connection between Martinez’s initial benefits claim and the scheduling of an IME. More fundamentally, there is no record evidence indicating any other purpose for holding the [*3]IME that could even potentially take that IME out of the scheduling framework of 11 NYCRR § 65-3.5 (b) through (d).
Accordingly, for the foregoing reasons it is hereby
ORDERED that American Transit’s motion under CPLR 3212 for summary judgment in its favor as to defendant Wellmart is denied.
8/21/2020
Footnotes
Footnote 1:American Transit has provided the NF-2 claim form provided by Martinez, which contains markings indicating that American Transit received the form on October 2, 2017, 36 days before the IME date. (See NYSCEF No. 41 at 11-14 [mailroom stamp and date/time footer].) But it has not provided the NF-3 verification form.
Footnote 2:In arguing that it could deny no-fault coverage due to Martinez’s failure to appear for IMEs even if those IMEs were not timely scheduled (see NYSCEF No. 54 at 5-10), American Transit does not mention the First Department’s decision in Longevity Medical Supply.
Legal questions (2)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer did not show its requests met the regulatory timing, follow-up or justification requirements
Held the insurer failed its prima facie burden because its documents did not show when it received the verification forms, so compliance with the 30-day IME scheduling rule of 65-3.5 (d) was unproved.
Of the 163 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.
Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?
This decision: No preclusion because the claimant (or insurer) was not a party or privy to the DJ (rules on the question, but another ground decided the case)
Held the default declaration against the assignor did not preclude the appearing provider, whose assignment predated the action and against whom the prior order declared no rights.
Of the 10 decisions on this question in the First Department courts and the Court of Appeals, 5 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.
Cited in this decision
A label shows how this decision treated the case it cites.
- Jamaica Wellness Med., P.C. v Mercury Cas. Co. (2018 NY Slip Op 51128(U)) FollowedA default judgment against an assignor does not preclude a provider's action when the order does not determine the provider's rights.
- American Tr. Ins. Co. v Longevity Med. Supply, Inc. (2015 NY Slip Op 06761) FollowedAn insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d).
Cited by
- American Tr. Ins. Co. v Romero-Richiez (2020 NY Slip Op 51181(U))The insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims.
- American Tr. Ins. Co. v Lopez (2022 NY Slip Op 50218(U))The insurer failed to establish timely IME scheduling because it did not supply the answering providers' NF-3 verification forms.
Similar decisions
- American Tr. Ins. Co. v Wildex (2020 NY Slip Op 50929(U))The insurer failed to prove timely IME scheduling, and the assignor's default judgment did not preclude the provider's claim.
- American Tr. Ins. Co. v Rivera (2022 NY Slip Op 50180(U))The insurer failed to prove timely IME requests and follow-up or the assignor's nonappearance with competent evidence.
- American Tr. Ins. Co. v Ferguson (2022 NY Slip Op 50757(U))The insurer's default judgment motion failed because it did not establish compliance with the regulatory timing requirements for IMEs. The Supreme Court, New York County, denied the unopposed motion against the injured claimant and nonappearing provider-assignees.
- Jiang Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2021 NY Slip Op 50945(U))The insurer's IME no-show defense failed because the examinations were not timely scheduled under 11 NYCRR 65-3.5 (d).
- State Farm Fire & Cas. Co. v Atlantic Diagnostic, L.L.C. (2024 NY Slip Op 50436(U))An assignor who appears for an EUO must sign the transcript on request even if the insurer has not proved its EUO request timely.