Decided on May 18, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on May 18, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

43537/15

For plaintiff:
Oleg Rybak, Esq.
The Rybak Firm PLLC
1810 Voorhies Ave., 3rd Fl, Suite 7
Brooklyn NY 11235

For defendant:
Matteo G. Sandusky, Esq.
Law Offices of Daniel J. Tucker
One Metro Tech Center, 7th Fl
Brooklyn, NY 11201

RECITATION, AS REQUIRED BY CPLR2219(A), OF THE PAPERS CONSIDERED IN THE REVIEW OF THIS MOTION:

Notice of Motion 1

Notice of Cross-Motion 2

Answering Affidavit 3

Reply Affidavit 4

In an action to recover assigned first-party no-fault insurance benefits, plaintiff moves for an order: 1) awarding summary judgment in favor of plaintiff pursuant to CPLR 3211(c) or CPLR 3212(a); 2) limiting the issues of fact for trial pursuant to CPLR 3212(g) that the statutory billing forms were mailed to and received by the insurance carrier and that payment of no-fault benefits was overdue; and 3) dismissing defendant’s affirmative defenses pursuant to CPLR 3211(b). Defendant cross-moves for summary judgment, seeking dismissal on the basis that the plaintiff’s assignor failed to appear for an EUO.

To prevail on its motion, plaintiff has the burden to demonstrate by admissible proof that [*2]the no-fault claim forms underlying the action were submitted to the defendant and that either that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials of the claims that were conclusory, vague or without merit as a matter of law (see Insurance Law section 5106[a]; Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168, 2010 NY Slip Op. 08933 [App. Div., 2d Dept., 2010]).

In the case at bar, plaintiff did not establish that defendant had failed to deny the claims within the requisite 30-day period, or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law. Plaintiff’s motion is accordingly, denied.

Defendant, in support of the cross-motion for summary judgement, submits affirmation of Netanel Bencheim, Esq. dated November 20, 2017 which states that the assignor did not appear for an EUO.

Failure to appear for an EUO violates a condition precedent to coverage, and the burden is on defendant to show that the requested party failed to appear (Five Boro Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 39 Misc 3d 141(A), 2013 NY Slip Op. 50753(U) [App Term, 2d Dept, 2d & 11th Jud Dists, 2013]). Generally, a statement from an attorney alleging that he or she was present in the office on the relevant dates and that he or she would have been the one to conduct the EUO is sufficient to demonstrate personal knowledge of the no-show (T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op. 50406(U) [App Term, 2d Dept, 2d 11th & 13th Jud Dists, 2015]).

In the case at bar, defendant failed to submit competent proof of assignor’s nonappearance. Mr. Bencheim, a shareholder of Bencheim and Associates states that defendant retained his law firm to conduct plaintiff’s EUO which was scheduled to be held on November 30, 2010, and rescheduled to December 29, 2010 due to plaintiff’s nonappearance. Mr. Bencheim states that he has personal knowledge that “the plaintiff did not attend the examination under oath on December 30, 2010″ which is a day after the scheduled date of the examination. As such, defendant failed to establish that plaintiff failed to appear for the examination on the scheduled date of December 29, 2010.

Moreover, Mr. Bencheim states that he has personal knowledge of plaintiff’s non-appearance for the EUO based on his review of the file. The affirmant does not specify or provide the documents he reviewed, or identify the creator(s) of the unspecified documents. Nor does Mr. Bencheim explain the basis of his detailed recollection of assignor’s non-appearance approximately seven years prior to his November 20, 2017 affirmation.

Accordingly, Mr. Bencheim’s affirmation is conclusory and lacks probative value (Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc 3d 126(A), 2017 NY Slip Op. 50331(U) [App. Term., 1st Dept., 2017]).

For the foregoing reasons, plaintiff’s motion and defendant’s cross motion are denied as both parties failed to establish entitlement as a matter of law.

Dated: May 17, 2018
ODESSA KENNEDY
Judge of the Civil Court

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.

Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1 [d]). Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423 [1983]; cf. American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [1st Dept 2013]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.

CV-4230-15/HU
Janine A. Barbera-Dalli, J.

Upon the following papers numbered 1 to 37 read on this motion by defendant to strike Notice of Trial, compel discovery, and for dismissal (Seq 001); by defendant for summary judgment dismissing complaint (Seq 002); by 1st Notice of Motion/Order to Show Cause and supporting papers (Seq 001) 1,2,6 ; Notice of Cross Motion and supporting papers (Seq 003) by plaintiff for partial summary judgment for relief demanded in complaint 7-9 ; Answering Affidavits and supporting papers 7-9 ; by 2nd Notice of Motion/Order to Show Cause and supporting papers (Seq 002) 10-16,32 ; Answering Affidavits and supporting papers 33,35 ; Replying Affidavits and supporting papers 36,37; Filed papers ; Other exhibits: 3-5,17-31,34 ; and after hearing counsel in support of and opposed to the motion) it is,

ORDERED that the motions submitted and categorized as Seq #001, Seq #002 and Seq #003, are hereby consolidated and the Court’s decision is rendered herein; and it is further

ORDERED that the motion by defendant for summary judgment dismissing plaintiff’s complaint pursuant to CPLR 3212 (Seq #002) is granted. The complaint is dismissed; and it is further

ORDERED that the motion by defendant striking plaintiff’s Notice of Trial, and dismissing the complaint on the ground that discovery is not complete (Seq #001), is denied, as being academic; and it is further

ORDERED that the motion by plaintiff for partial summary judgment pursuant to CPLR 3212(e),(g), is also denied.

Defendant moves by summary judgment for dismissal of plaintiff’s complaint, which seeks reimbursement of first-party no-fault benefits for medical services rendered to plaintiff’s assignor as the result of an automobile accident of 01/16/12 in the total sum of $6,523.31.

The grounds for dismissal are the failure of plaintiff’s assignee to attend two (2) duly scheduled Examinations Under Oath (“EUO’s”) set by defendant for 05/07/12, and the follow-up for 05/30/12. Defendant asserts the failure to attend the EUO’s breached a condition precedent for payment under defendant’s no-fault insurance policy, thereby voiding the policy. As a result, defendant issued NF-10 denial of claim forms dated 06/01/12.

In opposition to defendant’s motion, plaintiff asserts that defendant’s proof in support of the motion for summary judgment is insufficient to satisfy defendant’s prima facie burden of showing the timely and proper mailing of the notices for the EUO’s, the lack of appearance at the noticed EUO’s, and for showing the NF-10 denial of claims were mailed within 30 days of the last EUO date. In addition, plaintiff asserts that defendant also failed to provide “good reasons” to justify the EUO of plaintiff’s assignee.

A proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law with proof in admissible form sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]); see also Manhattan Medical v State Farm Mut. Ins. Co., 20 Misc 3d 1144[A][Civ. Ct. Richmond Cty. 2008]).

A summary judgment motion must be supported by an affidavit of a person having knowledge of the facts and the affidavit shall recite all the material facts and show there is no defense to the cause of action or that the cause of action or defense has no merit (see CPLR 3212[b]). A conclusory affidavit or an affidavit by an individual who lacks personal knowledge of the facts does not satisfy the proponent’s prima facie burden (see JMD Holding Corp. v Congress Financial Corp., 4 NY3d 373 [2005]).

A failure to comply with an insurer’s demand to submit to an EUO, is a material breach of the policy, precluding recovery of the policy proceeds (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2nd Dept 2014]; Unitrin Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC., 82 AD3d 559 [2nd Dept 2011]).

Here, the Court finds that defendant insurer has demonstrated by proof in admissible form that it twice demanded an EUO of plaintiff’s assignee (see Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 143[A][App Term, 2nd, 11th & 13th Jud Dists 2015]), for 05/07/12, and the follow-up EUO for 05/30/12, by scheduling letters which were properly mailed in accordance with defendant’s standard office practices and procedures, and in accordance with no-fault regulations (see St. Vincent’s Hosp. of Richmond v GEICO, 50 AD3d 1123, 1124 [2nd Dept 2008]; Gutierrez v Elrac, Inc., 48 Misc 3d 138[A][App Term, 2nd, 11th & 13th Jud Dists 2015]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Mis3d 140[A][App Term, 2nd, 11th & 13th Jud Dists 2010]).

The submitted proof also demonstrated defendant’s mailing methods were sufficient to create a rebuttable presumption of proper mailing (see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2nd Dept 2006]). “. . . Proof of proper mailing gives rise to a presumption that the item was received by the addressee” (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept 2001]).

Here, plaintiff does not deny receipt of the timely mailings, thereby failing to rebut the [*2]presumption of receipt raised by defendant’s proof of mailings (Id.; see also S & M Supply Inc. v GEICO, 2003 NY Slip Op. 51192[U][App Term, 2nd & 11th Jud Dists 2003]; Harbor Medical & Diagnostics P.C. v Allstate Ins. Co., 11 Misc 3d 1063[A][Civ Ct, New York City 2006]). Nor has plaintiff sufficiently demonstrated that it timely and legally satisfied its duty to communicate with defendant with a statement of why it could not provide what the EUO verifications sought (see Dilon Med. Supply Corp. v Travelers Ins. Co.,7 Misc 3d 927, 931-932 [NY City Civ. Ct. 2005]).

The Court further finds that plaintiff’s assignee failed to appear at both duly scheduled EUO’s, without excuse, or timely notice, as demonstrated by the affirmation of defendant’s attorney, Edward Ryan, Esq., who was present and assigned to conduct the EUO on each scheduled date (see Delta Dignostic Radiology, P.C. v Esurance, 48 Misc 3d 138[A][App Term, 2nd, 11th & 13th Jud Dists 2015]; Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A][App Term, 2nd, 11th & 13th Jud Dists 2014]).

The Court also determines that the NF-10 denial of claim forms were timely mailed to plaintiff in accordance with defendant’s standard office practices and procedures to ensure that items were properly addressed and mailed, especially for the generating and mailing of NF-10 denial of claim notices (see 11 NYCRR 65-3.8[a][1]; St. Vincent’s Hosp. of Richmond v GEICO, supra; Ortho-Med Surgical Supply, Inc. v MVAIC, 28 Misc 3d 139[A] [App Term, 2nd, 11th & 13th Jud Dists 2010]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2nd, 11th & 13th Jud Dists 2007]). The NF-10 denial of claim forms were dated 06/01/12 and timely mailed within the 30 day period within which defendant was required to pay or deny the claim (see 11 NYCRR §65-3.8[a][1]). Defendant has shown that its standard office practices and procedures ensured plaintiff’s receipt of the denial of claim forms, and created an additional, rebuttable presumption for such mailings (see New York Presbyt. Hosp. v Allstate Ins. Co., supra).

Furthermore, the Court finds that defendant provided sufficient reasons in the first notice of 04/04/12 and 04/11/12, and in the second notice of 05/10/12 and 05/25/12, to justify the EUO of plaintiff’s assignee.

Moreover, in as much as defendant demonstrated the failure of plaintiff’s assignee to timely respond to or appear at the EUO verification dates, without excuse, plaintiff waived its defenses and is therefore estopped from contesting the reasonableness of the EUO requests (see Natural Therapy Acupuncture, P.C. v State Farm Mut. Auto.Ins. Co., 42 Misc 3d 137[A][App Term, 2nd Dept 2014]; see also Morris Med., P.C. v Amex Assur. Co., 37 Misc 3d 140[A][App Term, 2d, 11th & 13th Jud Dists 2012]). The defendant should not be put in the position of second guessing why plaintiff failed to respond to the EUO verification requests (see Canarsie Chiropractic, P.C. v State Farm Mut. Ins. Co., 27 Misc 3d 1228[A][NY City Civ Ct 2008]). Plaintiff’s inaction to defendant’s timely notifications is fatal to its causes of action for alleged medical services rendered (see Crescent Radiology PLLC. v American Transit Ins. Co., 31 Misc 3d 134[A][App Term, 9th & 10th Jud Dist 2011]; Interboro Ins. Co. v Clennon, supra).

Therefore, the Court finds that defendant has made a prima facie showing of entitlement to summary judgment dismissing the complaint, as a matter of law, sufficient to establish the lack of any material issues of fact (see Alvarez v Prospect Hospital, supra; Winegrad v New York Univ. Med. Ctr., supra; Zuckerman v City of New York, supra).

Once a showing of entitlement to summary judgment has been made, the burden shifts to the party opposing the motion for summary judgment, to produce evidentiary proof in admissible [*3]form sufficient to establish the existence of material issues of fact which require a trial of the action (see CPLR 3212 [b]; Alvarez v Prospect Hospital, supra).

Here, the Court finds that plaintiff has failed in its burden to produce evidentiary proof in admissible form sufficient to establish material issues of fact which require a trial of the action.

It is not necessary for the Court to rule upon any remaining contentions of the parties, as they have been rendered academic.

The foregoing constitutes the decision and order of this Court.

Dated: May 4, 2018
HON. JANINE A. BARBERA-DALLI
J.D.C.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Gallo, Vitucci & Klar (Yolanda L. Ayala and Richard E. Weber, Jr. of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), dated July 28, 2016. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

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 the automobile insurance policy in question had been issued in Florida, and that Florida law applied, pursuant to which there was a lack of coverage due to the valid rescission of the automobile insurance policy. Plaintiff appeals from an order of the Civil Court dated July 28, 2016, which granted defendant’s motion.

It is undisputed that the vehicle in question was insured by defendant under a Florida automobile insurance policy. According to an affidavit submitted by an employee of defendant’s managing general agent, an investigation conducted after the accident revealed that, at the time the policyholder had applied for automobile insurance, she did not reside at the Florida address listed on her insurance application, and that the insured vehicle was not being garaged in Florida for the period stated on the application. Consequently, defendant had rescinded the policy ab initio, pursuant to Florida Statutes Annotated, title 37, § 627.409, which permits the retroactive rescission of an insurance policy if there has been a material misrepresentation in the application for insurance.

While the substantive law (see e.g. St. Chiropractic, P.C. v Geico Gen. Ins. Co., 53 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]) of Florida applies, New York’s procedural laws control (see St. Chiropractic, P.C., 53 Misc 3d at 61). In order to show that it [*2]properly rescinded a motor vehicle insurance policy ab initio, an insurer must demonstrate that it had given notice of the rescission to the insured and that it had returned or tendered all premiums paid, in accordance with Florida law, all in a reasonable time after the discovery of the grounds for avoiding the policy (see Leonardo v State Farm Fire and Cas. Co., 675 So 2d 176, 179 [Fla Dist Ct App, 4th Dist 1996]; see also United Auto. Ins. Co. v Salgado, 22 So 3d 594, 600-601 [Fla Dist Ct App, 3d Dist 2009]). As defendant’s motion papers failed to establish “actual mailing or … a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see also St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) demonstrating that the notice of rescission and the refund check had been mailed to the insured, defendant failed to establish its entitlement to summary judgment (see W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., 36 Misc 3d 4, 6-7 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012], citing Leonardo, 675 So 2d 176, 179).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

[*1]

Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for appellant.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 24, 2017, which denied plaintiff’s motion for summary judgment declaring that it has no obligation to pay the no-fault medical provider claims of defendants Lida’s Medical Supply, Inc. and American Kinetics Lab, Inc. with respect to the July 9, 2015 motor vehicle accident, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

Plaintiff’s first cause of action is for a declaratory judgment that it did not owe a duty to pay no-fault claims because the underlying claimants failed to appear for independent medical examinations (IMEs). While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.

When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage” (Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1). Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.

Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013]). Concur—Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.

Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]).

Consequently, in light of the Supreme Court’s orders and declaratory judgment, of which we take judicial notice, we find that the Civil Court properly denied plaintiff’s motion for summary judgment under the doctrines of res judicata and collateral estoppel (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and, upon a search of the record, we find that defendant established its entitlement to judgment as a matter of law. In view of the foregoing, we reach no other issue.

Accordingly, the Civil Court’s order is affirmed and, upon a search of the record, defendant is awarded reverse summary judgment dismissing the complaint.

ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.

Decided on April 13, 2018

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS