April 14, 2020

American Tr. Ins. Co. v Hayes (2020 NY Slip Op 50462(U))

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-hayes-2020-ny-slip-op-50462u/

Court
Supreme Court, New York County
Judge
Gerald Lebovits, J.
Decided
April 14, 2020
Citation
2020 NY Slip Op 50462(U)
Posture
Summary judgment
Outcome
Provider prevailed
Issues
IME 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 Hayes, 2020 NY Slip Op 50462(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 verification timing necessary for a declaration of no coverage based on policy violations. The Supreme Court, New York County, denied summary judgment against answering defendants and default judgment against nonappearing defendants. The record showed receipt of the claimant's NF-2 application and a later IME request, but did not establish when required verification forms were sent or returned. Under 11 NYCRR 65-3.5 (a) and (b), the insurer had 10 business days to supply verification forms and 15 business days after receiving completed forms to request further verification. The missing evidence also defeated the proof of facts required for default judgment under CPLR 3215 (f).

Reported in New York Official Reports at American Tr. Ins. Co. v Hayes (2020 NY Slip Op 50462(U))



AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff,

against

ALBERT HAYES, THE BROOKDALE HOSPITAL MEDICAL CENTER d/b/a BROOK DALE HOSPITAL, CITIMEDICAL I, PLLC, DOS MANOS CHIROPRACTIC, P.C., EASY ACCESS CHIROPRACTICE, P.C., EMIS CHIROPRACTIC, P.S., JULES FRANCOIS PARISIEN, MD, LIFE REHAB PT, P.C., LONGEVITY MEDICAL SUPPLY, INC., MEDIGNA INC., MMA PHYSICAL THERAPY, P.C., NGM ACUPUNCTURE, P.C., NYC COMMUNITY MEDICAL CARE P.C., REHAB CARE PHYSICAL THERAPY P.C., RF CHIROPRACTIC IMAGING, P.C., Defendants.

Index No. 150643/2019

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

Zara Javakov, Esq., P.C., Brooklyn, NY (Victoria Tarasova of counsel), for defendants Dos Manos Chiropractic, P.C., Jules Francois Parisien, M.D., and Medigna Inc.


Gerald Lebovits, J.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Albert Hayes was a passenger in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy [*2]issued by American Transit. Hayes 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 Hayes or to the other defendants (medical providers acting as Hayes’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. Among other things, § 65-3.5 provides 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 independent medical examination. (See id. § 65-3.5 [b].)

Here, the record reflects that American Transit received an NF-2 benefits claim form from Hayes at the end of April 2018. And the record reflects that American Transit requested in late July 2018 that Hayes appear for an independent medical examination. Yet there is nothing in the record (whether in the form of an affidavit or documentary evidence) that might establish when American Transit sent the necessary verification forms to Hayes, or when American Transit received the completed verification forms back from Hayes. Absent that information, American Transit has failed to satisfy all of 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: 4/14/20

Similar decisions