American Tr. Ins. Co. v Lopez (2022 NY Slip Op 50218(U))

Index No. 652582/2019

Larkin Farrell LLC, New York, NY (William Larkin of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Columbus Imaging Center, LLC and Metro Pain Specialists, P.C.

The following e-filed documents, listed by NYSCEF document number (Motion 003) 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85 were read on this motion for SUMMARY JUDGMENT.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Jose Marte Lopez was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Lopez assigned the right to collect no-fault benefits under that policy to [*2]various treating medical providers. American Transit denied those providers’ applications for no-fault benefits.

American Transit brought this action for a declaratory judgment that it is not required to pay no-fault benefits to Lopez or to Lopez’s medical-provider assignees (the other defendants here). Lopez and a number of the medical-provider defendants did not appear. This court previously granted default judgment against those defendants, without opposition, on March 25, 2021. (See NYSCEF No. 60 [granting motion and directing American Transit to settle order]; NYSCEF No. 64 [granting judgment].) American Transit now moves for summary judgment against the remaining answering defendants.^[FN1] The motion is denied.

American Transit premises its claim for declaratory judgment on Lopez’s failure twice to appear for independent medical examinations (IMEs) scheduled under the terms of the underlying no-fault insurance policy. But a no-fault insurer seeking a declaration of no coverage due to the claimant’s failure to appear for an IME required under the no-fault policy must first demonstrate that it complied with 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].) If an insurer receives NF-3 verification forms from treating providers and then wishes to request additional verification of the no-fault claim in the form of an IME, that IME must be (i) requested within 15 business days of the receipt of an NF-3 form, and (ii) scheduled to be held within 30 calendar days of receipt of the NF-3 form. (See 11 NYCRR 65-3.5 [b], [d]; American Transit Ins. Co. v Acosta, 2022 NY Slip Op 01097 [1st Dept Feb. 17, 2022].)

American Transit has concededly not provided copies of NF-3 verification forms submitted by the remaining medical-provider defendants.^[FN2] American Transit therefore cannot show that it timely requested the IME at issue—as needed to obtain its requested declaratory judgment. (See Acosta, 2022 NY Slip Op 01097, at *1 [reversing grant of summary judgment to American Transit; accord American Transit v Alcantara, 2022 NY Slip Op 01871, at *1 [1st Dept Mar. 17, 2022] [same].)

American Transit advances several arguments for why it is nonetheless entitled to summary judgment. (See NYSCEF No. 85 at 1-15.) But this court has repeatedly rejected these same arguments before when made on behalf of American Transit by the same attorney who makes them here. (See American Transit Ins. Co. v Romero-Richiez, 2020 NY Slip Op 51181[U] [Sup Ct, NY County Oct. 9, 2020]; American Transit Ins. Co. v Martinez, 2020 NY Slip Op 50930[U] [Sup Ct, NY County Aug. 21, 2020]; American Transit Ins. Co. v Wildex, 2020 NY Slip Op 50929[U] [Sup Ct, NY County Aug. 21, 2020]; accord American Transit Ins. Co. v Rodriguez, 2020 WL 7692216 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v Johnson, 2020 WL 7692201 [Sup Ct, NY County Dec. 23, 2020]; American Transit Ins. Co. v City Wide Health Facility Inc., 2020 WL 6440760 [Sup Ct, NY County Oct. 14, 2020]; American Transit Ins. Co. v Reynoso, 2020 WL 5524771 [Sup Ct, NY County Sept. 11, 2020]; [*3]American Transit Ins. Co. v. Schenck, 2020 WL 5290820 [Sup Ct, NY County Sept. 2, 2020]; American Transit Ins. Co. v Fermin, 2020 WL 5105760 [Sup Ct., NY County Aug. 27, 2020].)

American Transit’s papers on this motion do not even acknowledge these numerous prior decisions, much less put forward reasons why they might be mistaken. That counsel evidently does not agree with this court’s prior decisions and reasoning does not explain counsel’s choice to ignore them altogether. Nor, in any event, can American Transit’s position on this motion be reconciled with the recent decisions of the Appellate Division, First Department, in Acosta and Alcantara.^[FN3]

Accordingly, for the foregoing reasons, American Transit’s motion for summary judgment is denied.

Footnotes

Footnote 1:American Transit previously settled with answering defendant Longevity Medical Supply, Inc. (See NYSCEF No. 61.)

Footnote 2:Nor does American Transit contend that it requested the IME before receiving any NF-3 verification forms from those defendants. Had it done so, the 15-day and 30-day deadlines would not apply. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469-470 [1st Dept 2016].)

Footnote 3:American Transit’s counsel here also represented it in the trial court in Acosta and Alcantara—i.e., he obtained the grants of summary judgment that the First Department reversed in those cases. (American Transit did not file a brief on appeal in either case.) Although defendants’ opposition papers on this motion cite the First Department decision in Acosta as an additional reason for denying American Transit’s motion (see NYSCEF No. 75 at 4), American Transit’s reply does not address Acosta’s implications for this motion. Instead, the reply cites only the trial-court ruling in Acosta, without acknowledging its reversal. (See NYSCEF No. 85 at 11.) (The First Department decided Alcantara on March 17, 2022, after this motion was fully submitted.)