May 27, 2020

American Tr. Ins. Co. v Bookman (2020 NY Slip Op 50607(U))

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-bookman-2020-ny-slip-op-50607u/

Court: Supreme Court, New York County
Judge: Gerald Lebovits, J.
Decided: May 27, 2020
Citation: 2020 NY Slip Op 50607(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: EUO no-show Timeliness and preclusion Verification requests
Legal questions: No-show defense: insurer's proof (see the maps)

Cite as

American Tr. Ins. Co. v Bookman, 2020 NY Slip Op 50607(U) (Sup Ct, New York County 2020)

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.

The insurer failed to establish compliance with verification deadlines supporting its requested declaration of no coverage. The Supreme Court, New York County, denied summary judgment against the answering defendants and default judgment against the nonappearing defendants. Although the record showed receipt of the injured claimant's NF-2 application and a later EUO request, it did not establish when verification forms were sent or returned. Under 11 NYCRR 65-3.5 (a) and (b), forms must be supplied within 10 business days after receipt of a claim, and further verification requested within 15 business days after receipt of completed forms. The missing proof also prevented a default judgment under CPLR 3215 (f).

Reported in New York Official Reports at American Tr. Ins. Co. v Bookman (2020 NY Slip Op 50607(U))

AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff,
against
ELVINA BOOKMAN et al., Defendants.

Index No. 161280/2018

The Law Office of Daniel J. Tucker, Brooklyn, NY (R. Jacob Lamar of counsel), for plaintiff.

The Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Acupuncture Now, P.C., Healthway Medical Care, P.C., Jules Francois Parisien, M.D., and SB Chiropractic, P.C.

Gerald Lebovits, J.

This motion concerns plaintiff’s potential obligation to pay no-fault insurance benefits. Defendant Elvina Bookman was a passenger in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by plaintiff American Transit Insurance Company. Bookman applied for no-fault benefits, which American Transit denied.

In this action, American Transit seeks a declaratory judgment that it is not required to pay no-fault benefits to Bookman or to the other defendants (medical providers acting as Bookman’s assignees). American Transit now moves for summary judgment on this claim under CPLR 3212 as against those defendants who have appeared in the action, and moves for default judgment under CPLR 3215 as against the remaining, non-appearing defendants. The motion is denied.

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].) American Transit has not satisfied that requirement here.

Section 65-3.5 provides among other things that once an insurer receives a claim for benefits, the insurer has 10 business days to provide the claimant with the forms that it requires for verification of the claim. (See 11 NYCRR § 65-3.5 [a].) Once the insurer receives the completed verification forms, it then has 15 business days to request further verification, such as an examination under oath. (See id. § 65-3.5 [b].)

Here, the record reflects that American Transit received an NF-2 benefits application form from Bookman on August 2, 2018. And the record reflects that American Transit requested on August 28, 2018, that Bookman appear for an examination under oath. Yet nothing in the record (whether in the form of an affidavit or documentary evidence) might establish when American Transit sent the necessary verification forms to Bookman, or when American Transit received the completed verification forms back from Bookman. Absent that information, American Transit has failed to satisfy all the elements of its claim for declaratory relief.

American Transit thus is not entitled to summary judgment under CPLR 3212 against the answering defendants. Similarly, to obtain a default judgment against the non-appearing defendants American Transit is required to provide proof (such as an affidavit) of all the facts necessary to establish its prima facie entitlement to relief. (See CPLR 3215 [f]; Matter of Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999].) American Transit has not met that requirement here, and thus is not entitled to default judgment, either.

Accordingly, it is hereby

ORDERED that the branch of American Transit’s motion seeking summary judgment under CPLR 3212 against the answering defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against the non-appearing defendants is denied.

Date: 5/27/20

Legal questions

A question 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.

No-show defense: insurer's proof

Open the full map

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 to establish compliance with 11 NYCRR 65-3.5 because nothing showed when verification forms were sent or returned, so the EUO request's timeliness was unproved; summary judgment and default judgment were denied.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 164 decisions on this question in the First Department courts and the Court of Appeals, 39 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

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).

Similar decisions

American Tr. Ins. Co. v Hayes (2020 NY Slip Op 50462(U))The insurer failed to establish verification timing necessary for a declaration of no coverage based on policy violations.
American Tr. Ins. Co. v Sky Limit Physical Therapy, P.C. (2020 NY Slip Op 50558(U))The insurer's summary judgment and default judgment motion was denied because its action remained dismissed on default.
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.
American Tr. Ins. Co. v 21st Century Pharmacy Inc. (2020 NY Slip Op 50532(U))The insurer's investigator affidavit failed to establish a founded belief that the collision was staged.
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.