American Tr. Ins. Co. v Rivera (2022 NY Slip Op 50180(U))

Index No. 150343/2021

The Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.

The Tadchiev Law Firm, P.C., Fresh Meadows, NY (Simon B. Landsberg of counsel), for defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC.

This motion concerns the potential obligation to pay no-fault insurance benefits of plaintiff American Transit Insurance Company. Defendant Erika Rivera was in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by American Transit. Rivera assigned the right to collect no-fault benefits under that policy to 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 Rivera or to Rivera’s medical-provider assignees. Only Rivera and defendants Global Surgery Center LLC and Safe Anesthesia and Pain LLC answered.^[FN1]

American Transit now moves for default judgment under CPLR 3215 against the various defaulting defendants, and moves for summary judgment under CPLR 3212 against Global Surgery Center LLC and Safe Anesthesia and Pain LLC. The motion is denied.

DISCUSSION

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].)

Under these regulations, a no-fault insurer’s request for additional verification in the form of an independent medical examination (IME) must be made within 15 business days of receiving claimant’s verification forms. (See 11 NYCRR § 65-3.5 [b].) The IME must be held within 30 calendar days from receipt of the verification forms. (See id. § 65-3.5 [d].) If the claimant does not appear for the IME, the insurer must send a letter rescheduling the IME within 10 calendar days of the nonappearance. (See 11 NYCRR 65-3.6 [b].)

American Transit has not established that it satisfied these timeframes, as required to establish the facts constituting its claim under CPLR 3215 and to establish prima facie its entitlement to judgment as a matter of law under CPLR 3212.

American Transit has submitted on this motion Rivera’s NF-2 benefits application, dated October 29, 2019. (See NYSCEF No. 19.) American Transit has not, however, submitted any NF-3 verification forms. American Transit thus cannot establish that the first IME here was timely requested or timely scheduled under § 65-3.5. Indeed, the record as it stands casts considerable doubt on the timeliness of the IME: American Transit’s first request, sent on February 13, 2020, scheduled an IME for March 3, 2020—fully 126 calendar days after the date of the NF-2 application. (See NYSCEF No. 17 at ¶ 3; NYSCEF No. 20 at 7.)

American Transit’s papers also reflect that it did not timely reschedule the IME. The IME first scheduled in the February 13, 2020, request letter was rescheduled several times due to the COVID-19 pandemic, and ultimately postponed to June 23, 2020. Rivera did not appear for the June 23 IME date. American Transit did not, however, then reschedule the IME again within 10 days. Its papers reflect instead that it sent a follow-up letter on July 14, 2020—21 calendar days after Rivera failed to appear, not 10. (See NYSCEF No. 17 at ¶ 8; NYSCEF No. 20 at 2.)

American Transit’s motion papers suffer from additional defects. American Transit’s proof that Rivera did not appear for the June 23, 2020, IME date, or the rescheduled August 4, 2020, IME date, is a boilerplate affidavit from its IME physician.^[FN2] But that affidavit is not signed. (See NYSCEF No. 17 at 4.) Moreover, the notary’s stamp states that the notary is “Qualified in Suffolk County” while the top of the affidavit reflects that it was prepared in the “County of Nassa [sic].”^[FN3] (Id.) This document is not competent evidence of Rivera’s asserted failure to appear for IMEs.

Minor delays in requesting additional verification (or following-up on verification requests) may constitute “a technical defect excusable under 11 NYCRR 65-3.5 (p).” (Kemper Independence Ins. Co. v. Cornerstone Chiropractic, P.C., 185 AD3d 468, 469 [1st Dept 2020] [internal quotation marks omitted]). But American Transit’s outright failure to establish when it first requested an IME relative to when it received provider bills or other verification forms, coupled with the absence of a competent affidavit to establish Rivera’s failure to appear at the rescheduled IMEs, far exceeds the “nonsubstantive technical or immaterial defect or omission” that § 65-3.5 (p) excuses. (See American Transit Ins. Co. v Foster, 2019 NY Slip Op 30746[U], at *4 [Sup Ct, NY County Mar. 26, 2019] [holding substantial and repeated delays in seeking verification not excusable under § 65-3.5 [p]].)

Further, Global Surgery and Safe Anesthesia represent in opposition to summary judgment that American Transit has not yet responded to their discovery requests, rendering the summary judgment motion against them premature under CPLR 3212 (f). (See NYSCEF No. 28 at 14-16.) American Transit has not controverted that representation.

American Transit has thus failed to establish either that it is entitled to default judgment against the defaulting defendants under CPLR 3215, or that it is entitled to summary judgment against the answering defendants under CPLR 3212. It is somewhat doubtful that plaintiff can make out the necessary showings. But this court elects to afford American Transit one more opportunity to do so, rather than dismiss the action outright at this time.

Accordingly, for the foregoing reasons it is

ORDERED that the branch of American Transit’s motion under CPLR 3215 seeking default judgment against the defaulting defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion under CPLR 3212 seeking summary judgment against Global Surgery and Safe Anesthesia is denied; and it is further

ORDERED that American Transit shall, within 30 days of entry of this order, respond to the discovery requests served by Global Surgery and Safe Anesthesia on September 24, 2021 [*2](see NYSCEF No. 11); and it is further

ORDERED that if American Transit does not serve a renewed motion for default judgment and for summary judgment within 60 days of entry of this order, the action will be administratively dismissed; and it is further

ORDERED that Global Surgery and Safe Anesthesia shall serve a copy of this order with notice of its entry on all parties.

Footnotes

Footnote 1:American Transit settled with Rivera and two of her treating providers. (See NYSCEF Nos. 3, 6, 8.)

Footnote 2:The affidavit appears to be a generic form document in which the names of the examining physician and the claimant, and the address of the physician’s office, are filled in using a word-processing macro or the equivalent. (See NYSCEF No. 17 at 4.) It states that on the two IME dates at issue, “Erika Rivera never checked in, never had his/her file pulled, [and] was never examined.” (Id. at 4 ¶ 6.)

Footnote 3:It is also unclear why a physician with an office in Manhattan, referred by a company with an office in Nassau County to conduct an examination on behalf of a company that is located in Brooklyn and is represented by counsel located in Brooklyn, would be executing an affidavit before a Suffolk County notary. (See generally NYSCEF Nos. 17, 20; see also NYSCEF No. 16 at 11.)