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February 7, 2020

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2020 NY Slip Op 00971)

https://www.beynensonlaw.com/case-law/nationwide-affinity-ins-co-of-am-v-jamaica-wellness-med-p-c-2020-nyslip-op-00971/

Court
Appellate Division, Fourth Department
Decided
February 7, 2020
Citation
2020 NY Slip Op 00971 · 180 AD3d 1379
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
Discovery and procedure EUO no-show Timeliness and preclusion
Legal questions
No-show: coverage defense or precludable? · No-show defense: insurer's proof (see the maps)
Cite as
Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 180 AD3d 1379 (4th Dept 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 insurers' successive summary judgment motion was entertained because an intervening appeal clarified the proof required for EUO nonappearance. The prior appeal made the defense subject to preclusion and found the original timely-denial proof conclusory and unsupported by denial forms. The second motion supplied detailed affidavits and the forms, meeting the insurers' burden without a triable response. The provider's hope that discovery would uncover opposing evidence was insufficient under CPLR 3212 (f). The Appellate Division, Fourth Department, reversed, granted summary judgment declaring no obligation to pay or reimburse the subject claims, and dismissed the provider's CPLR 3124 discovery cross motion as moot.

Reported in New York Official Reports at Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2020 NY Slip Op 00971)

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C.
2020 NY Slip Op 00971 [180 AD3d 1379]
February 7, 2020
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, April 1, 2020

[*1]

 Nationwide Affinity Insurance Company of America et al., Appellants,
v
Jamaica Wellness Medical, P.C., Respondent.

Hollander Legal Group, P.C., Melville (Allan S. Hollander of counsel), for plaintiffs-appellants.

Kopelevich & Feldsherova, P.C., Brooklyn (David Landfair of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered March 29, 2019. The order denied plaintiffs’ motion for summary judgment and granted in part defendant’s cross motion to compel discovery.

It is hereby ordered that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the cross motion is dismissed, and judgment is granted in favor of plaintiffs as follows:

It is adjudged and declared that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: As we explained in a prior appeal (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [4th Dept 2018]), defendant is a medical professional corporation that was assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendant submitted bills for the services it purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No-Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced this declaratory judgment action after defendant failed to appear at repeatedly requested examinations under oath (EUOs), alleging that defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court granted the motion, declared, among other things, that defendant breached a condition precedent to coverage by failing to appear at the scheduled EUOs, and determined that the Nationwide plaintiffs therefore had the right to deny all claims retroactively to the date of loss, regardless of whether they had issued timely denials.

We reversed the judgment insofar as appealed from, denied the Nationwide plaintiffs’ motion, and vacated the declarations. We held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground. We determined that the Nationwide plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage inasmuch as the assertions in the affidavit of their claims specialist that they issued timely denial forms to defendant for nonappearance at the EUOs were conclusory and unsupported by any such denial forms (Nationwide Affinity Ins. Co. of Am., 167 AD3d at 198).

The Nationwide plaintiffs subsequently filed a second motion for summary judgment on the complaint and submitted, inter alia, a detailed affidavit of the claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. Defendant cross-moved pursuant to CPLR 3124 to compel discovery. Supreme Court denied the motion on the ground that it was an improper successive motion for summary judgment and granted in part the cross motion. The Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court erred in refusing to entertain their second summary judgment motion. “Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause . . . , neither Supreme Court nor this Court is precluded from addressing the merits of such a motion” (Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]; see Putrelo Constr. Co. v Town of Marcy, 137 AD3d 1591, 1593 [4th Dept 2016]). Here, our intervening decision in the prior appeal, which clarified that the defense based on nonappearance at an EUO is subject to the preclusion remedy and that the Nationwide plaintiffs were therefore required to establish that they issued timely denials on that ground, constitutes sufficient cause to entertain the motion (see Pludeman v Northern Leasing Sys., Inc., 106 AD3d 612, 616 [1st Dept 2013]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Contrary to defendant’s contentions, we conclude upon our review of the record that the Nationwide plaintiffs met their burden as movant and that defendant failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v Beacon Acupuncture, P.C., 175 AD3d 1836, 1837 [4th Dept 2019]). In addition, defendant’s “ ’mere hope or speculation’ that further discovery will lead to evidence sufficient to defeat [the Nationwide plaintiffs’] motion is insufficient to warrant denial thereof” (Kaufmann’s Carousel, Inc. v Carousel Ctr. Co. LP, 87 AD3d 1343, 1345 [4th Dept 2011], lv dismissed 18 NY3d 975 [2012], rearg denied 19 NY3d 938 [2012]; see Austin v CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 AD3d 1298, 1301 [4th Dept 2014]; see generally CPLR 3212 [f]). In light of our determination, defendant’s cross motion to compel discovery is dismissed as moot (see Clark C.B. v Fuller, 59 AD3d 1030, 1031 [4th Dept 2009]). We therefore reverse the order by granting the motion, dismissing the cross motion, and granting judgment in favor of the Nationwide plaintiffs declaring that they are under no obligation to pay or reimburse any of the subject claims. Present—Whalen, P.J., Peradotto, Troutman and Bannister, JJ.

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: Timely denial required as part of the no-show defense, and the insurer showed it

Applied the rule that an EUO no-show defense is subject to preclusion and held that the insurers, now submitting the denial forms and detailed affidavits, met their burden including timely denials.

  • Appellate DivisionApp Div 3
2020, Appellate Division: 2 decisions (2 Precludable: denial timely)2018, Appellate Division: 1 decision (1 Precludable: denial lacking)This decision
201820192020
Precludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 3 decisions on this question in the Fourth Department courts and the Court of Appeals, 2 (this one included) are in the same category.

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 proved mailed, compliant requests and the nonappearance; claimant's answers rejected (rules on the question, but another ground decided the case)

Held the insurers met their burden on the EUO nonappearance defense, the provider raised no triable issue, and speculation that discovery would help did not defeat summary judgment.

  • Appellate DivisionApp Div 2
2020, Appellate Division: 2 decisions (2 Defense proved)This decision
2020
Defense provedThis decision

Of the 2 decisions on this question in the Fourth Department courts and the Court of Appeals, 2 (this one included) are in the same category.

Cited in this decision

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

  • Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850) FollowedAn EUO nonappearance defense is subject to preclusion when the insurer fails to issue a timely denial.

Similar decisions

  • Nationwide Affinity Ins. Co. of Am. v PFJ Med. Care, P.C. (2020 NY Slip Op 00972)The insurers justified renewal with previously known denial evidence after intervening precedent made EUO nonappearance subject to preclusion.
  • Nationwide Affinity Ins. Co. of Am. v George (2020 NY Slip Op 02801)The insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue.
  • Allay Med. Servs., P.C. v Nationwide Ins. (2021 NY Slip Op 50086(U))The provider's action was barred by res judicata because the prior declaratory judgment covered the same claim and accident.
  • Metro Health Prods., Inc. v Nationwide Ins. (2016 NY Slip Op 51122(U))An unpleaded res judicata defense may support summary judgment when it causes no surprise or prejudice to the opposing party.
  • MSB Physical Therapy v Nationwide Ins. (2022 NY Slip Op 51381(U))The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment.
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