January 10, 2022

American Tr. Ins. Co. v Reyes (2022 NY Slip Op 50013(U))

https://www.beynensonlaw.com/case-law/american-tr-ins-co-v-reyes-2022-ny-slip-op-50013u/

Court
Supreme Court, New York County
Judge
Lebovits, J.
Decided
January 10, 2022
Citation
2022 NY Slip Op 50013(U) · 73 Misc 3d 1237(A)
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 Reyes, 73 Misc 3d 1237(A), 2022 NY Slip Op 50013(U) (Sup Ct, New York County 2022)

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 IME scheduling deadlines because it did not disclose when claims or verification forms arrived. The IME was scheduled 33 calendar days after the request, exceeding the 30-day period from receipt of verification forms required by 11 NYCRR 65-3.5 (d), if that provision applied. Under Hereford Ins. Co. v Lida's Med. Supply, Inc., those deadlines do not apply to verification requested before any benefits claims are received. The record therefore left open whether the request was timely. The Supreme Court, New York County, denied default judgment under CPLR 3215 and summary judgment under CPLR 3212, requiring a renewed default motion within 30 days of entry to avoid dismissal as to defaulting defendants.

Reported in New York Official Reports at American Tr. Ins. Co. v Reyes (2022 NY Slip Op 50013(U))

[*1]
American Tr. Ins. Co. v Reyes
2022 NY Slip Op 50013(U) [73 Misc 3d 1237(A)]
Decided on January 10, 2022
Supreme Court, New York County
Lebovits, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2022

Supreme Court, New York County



American Transit Insurance Company, Plaintiff,

against

Samuel Reyes, CAREPOINT ACUPUNCTURE, P.C., COMMUNITY MEDICAL IMAGING P.C., DIAGNOSTIC ACCUTOX M., EXCELL CLINICAL LAB, INC., ILANA’S PHARMACY, LEV AMINOV, INTERNAL MEDICINE, P.C., MLJ CHIROPRACTIC P.C., PHOENIX MEDICAL SERVICES, P.C., RICHARD M. SELDES, M.D., P.C., TIM CANTY M.D. PLLC, UNION SCRIPTS, and WESTCHESTER MEDICAL CARE P.C., Defendants.

Index No. 160996/2020

Law Office of Daniel J. Tucker, Brooklyn, NY (Jaimie L. Boyd of counsel), for plaintiff.

No appearance for defendants.


Gerald Lebovits, J.

Plaintiff moves for a default judgment against the no-fault claimant and some of his treating medical providers; and moves for summary judgment against appearing defendants [*2]Community Medical Imaging P.C. and Lev Aminov Internal Medicine, P.C. The motion is denied in its entirety.

Plaintiff has not established that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) When the additional verification that the insurer seeks from an applicant for no-fault benefits takes the form of an independent medical examination (IME), the IME must be scheduled to be held within 30 calendar days from receipt of the verification forms. (See 11 NYCRR 65-3.5 [d].) Here, the IME was scheduled to be held 33 calendar days after the IME request, and thus necessarily more than the 30-day limit set by § 65-3.5 (d). (See NYSCEF No. 15 at 1.)

Thus, if plaintiff were required to satisfy § 65-3.5’s timeliness requirements, the record demonstrates that it failed to do so—and thus that it was not entitled to deny the claims of the no-fault claimant and his assignees on the ground that the claimant failed to appear for the requested IME. (See Longevity Medical Supply, 131 AD3d at 841.) That said, when an insurer requests additional verification before receiving any claims for benefits, § 65-3.5’s scheduling deadlines do not apply. (See Hereford Ins. Co. v Lida’s Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018].) Neither plaintiff’s attorney affirmation on this motion nor the affirmation’s supporting exhibits disclose when plaintiff received benefits claims or verification forms from the no-fault claimant’s provider assignees. (See NYSCEF No. 11 at ¶ 12; NYSCEF No. 14.) Thus, it is at least possible that plaintiff’s IME request was timely; and that plaintiff could still be entitled to the default and declaratory judgments that it seeks (assuming plaintiff also satisfies the other elements of its claim).

Accordingly, it is hereby

ORDERED that plaintiff’s motion under CPLR 3215 for default judgment against the defaulting defendants is denied; and it is further

ORDERED that if plaintiff does not bring a renewed default-judgment motion within 30 days of entry of this order, the action will be dismissed as to the defaulting defendants; and it is further

ORDERED that plaintiff’s motion under CPLR 3212 for summary judgment against the appearing defendants is denied.

DATE 1/10/2022

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