Country-Wide Ins. Co. v Duff (2022 NY Slip Op 51289(U))

Index No. 655628/2021

Law Office of Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Chohayea Duff, Maria Shiela Masigla-Buslon, D.PT., Energy Chiropractic, P.C., Kings Rehab Acupuncture, P.C., AB Medical Supply Inc., Strategic Medical Initiatives, P.C., and M. Bulson Physical Therapy, P.C.

This is a no-fault-insurance-coverage action. On motion sequence 001, plaintiff, Country-Wide Insurance Company, moves without opposition for default judgment under CPLR 3215 against nonappearing defendants Quality Custom Medical Supply, Inc., Atlas Radiology P.C., Zhong Qing Zhou L.A.C., and Guy Brewer Pharmacy, Inc., all medical-provider assignees of the eligible injured person, defendant Chohayea Duff.

On motion sequence 002, Country-Wide moves for summary judgment under CPLR 3212 against appearing defendants Duff and the remaining medical-provider assignees. The motion is opposed by all appearing defendants except Jamaica Hospital Medical Center Diagnostic and Treatment Center Corp.

Country-Wide’s default-judgment and summary-judgment motions are granted.

DISCUSSION

1. Default Judgment (Mot Seq 001) A party moving for default judgment must establish proper service, default, and the facts constituting the moving party’s claims. Country-Wide has established proper service on the four defendants who are the subject of its default-judgment motion, none of which have appeared. And Country-Wide has provided affidavits from its employees, supported by attached documentation, establishing that Country-Wide timely and properly requested that Duff appear for an independent medical examination (IME), and that Duff twice failed without justification to appear for scheduled IMEs. That suffices to establish Country-Wide’s claim for default judgment purposes.

2. Summary Judgment (Mot Seq 002) Country-Wide’s summary-judgment motion papers, based on the same affidavits and exhibits as its default-judgment motion, establishes prima facie that Country-Wide is entitled to judgment as a matter of law. And this court concludes that the opposing defendants fail to raise a dispute of material fact warranting trial.

Defendants, relying on an outdated and boilerplate affirmation of counsel, raise three principal legal arguments, and one factual one.^[FN1] (See NYSCEF No. 60.) None of defendants’ legal arguments has merit—indeed, they are foreclosed by controlling appellate precedent that counsel for defendants does not even acknowledge, much less address.^[FN2]

First, defendants contend that Country-Wide has not shown that Country-Wide’s initial IME request was timely relative to when Country-Wide received Duff’s NF-2 application for no-fault benefits. But the triggering date that begins the IME-request period is not receipt of the NF-2 benefits application, but instead receipt of NF-3 claims for payment submitted by treating providers. (See 11 NYCRR 65-3.5 [a]-[b]; Unitrin Direct Ins. Co. v Beckles, 188 AD3d 620, 621 [1st Dept 2020] [explaining that a timely request for an IME must be made within 15 days of receipt of an NF-3 medical-provider claim].)

Second, defendants assert that Country-Wide has failed to meet its (putative) obligation to show that its initial IME request was timely relative to the first bill it received from each treating medical provider. But Country-Wide is not required to make that showing. Rather, as the Appellate Division, First Department has held, the nonappearance coverage defense applies to any claim received by a no-fault insurer, rather than being “determined on a bill by bill basis.” (PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020].) The insurer is required only to show that a request for an IME or examination under oath (EUO) is made within 15 days of receipt “of a medical provider claim (NF-3).” (Beckles, 188 AD3d at 61 [emphasis added]; see also Unitrin Advantage Ins. Co. v Dowd, 194 AD3d 507, 507 [1st Dept 2021] [holding that as long as an EUO was timely and properly requested of an assignee relative to a claim, the failure to appear for the EUO will “void[] the policy ab initio as to all claims” by the assignee].^[FN3] )

Third, defendants claim that Country-Wide’s motion fails because it has not shown when it made its initial IME request relative to receiving NF-3 claims from defendants, in particular. Again, that showing is not required. As the First Department held in 2020, if a no-fault insurer establishes that the eligible injured person failed twice to appear an IME scheduled within 15 days of receipt of an NF-3 bill, “summary judgment is properly awarded to the insurer with respect to further coverage obligations and reimbursement of outstanding medical bills with respect to all treating providers.” (Beckles, 188 AD3d at 621 [emphasis added].) This rule follows from the basic principle that medical-provider assignees stand in the shoes of their eligible-injured-person assignor. If an assignor’s claim is properly denied due to IME nonappearances, then the claims of all assignees are subject to denial, whether or not the IME was requested based on a given assignee’s requests for payment.

In addition to the legal arguments discussed above, defendants also raise the factual argument that Country-Wide has not properly authenticated the NF-3 forms on which Country-Wide relies to show the timeliness of its IME request. This court disagrees. Country-Wide has [*2]provided an affidavit from its no-fault supervisor that identifies several claims it has received from different providers, specifying the provider, the date received, the dates of service, and the amount of the bill. (NYSCEF No. 54 at ¶ 9.) Country-Wide has provided copies of those bills. (See NYSCEF No. 58.) And Country-Wide’s affirmation of counsel represents that the documents contained at NYSCEF No. 58 are copies of the bills that Country-Wide received. (NYSCEF No. 43 at ¶¶ 21-22.) These sworn representations, taken together, are sufficient.

Finally, defendants contend that Country-Wide’s summary-judgment motion is premature under CPLR 3212 (f) because discovery remains outstanding. This court is not persuaded. To be sure, in some circumstances it may be the case that an insurer’s early summary-judgment motion in a no-fault-coverage action is premature because it forecloses the provider defendants from obtaining discovery necessary to oppose the motion. (See Country-Wide Ins. Co. v Evans, 2022 NY Slip Op 33966[U], at *2 [Sup Ct, NY County Nov. 21, 2022] [denying insurer’s summary-judgment motion as premature].) But here, the record reflects that defendants served discovery requests on Country-Wide in November 2021 (simultaneous to their filing of the answer); and that within a week of service, defendants had not only received responses to those requests, but written back to Country-Wide objecting to them as incomplete. (See NYSCEF Nos. 19-20.) A year then elapsed before Country-Wide moved for summary judgment. (See NYSCEF No. 41 [notice of motion].) This court is not aware of any effort by defendants during that year to obtain additional discovery from Country-Wide—for example, through moving to compel, or simply requesting a discovery conference with the court. Given defendants’ ample opportunity to obtain discovery in these circumstances, Country-Wide’s summary-judgment motion is not premature.

Country-Wide’s default-judgment motion against the defaulting defendants (mot seq 001) is granted without opposition. The branch of Country-Wide’s motion seeking summary judgment against defendant Jamaica Hospital Medical Center Diagnostic and Treatment Center Corp. (mot seq 002) is granted without opposition. The branch of Country-Wide’s motion seeking summary judgment against the remaining defendants (mot seq 002) is granted.

Settle Order.

Footnotes

Footnote 1:All defendants opposing summary judgment are represented by the same counsel (the Rybak Firm, PLLC) and have filed one set of opposition papers.

Footnote 2:Country-Wide has not requested sanctions under 22 NYCRR 130-1.1. But this court is troubled by the extent to which defendants’ counsel repeatedly make the same rejected arguments in no-fault-coverage litigation, seemingly without regard to whether those arguments have any merit in existing law or are reasonable arguments for a change in that law. This is the second time in two years that this court has felt obliged to take the time to walk through why counsel’s arguments are (still) foreclosed by binding precedent. (See Country-Wide Ins. Co. v Ware, 2021 NY Slip Op 50506[U], at *2-3 [Sup Ct, NY County May 28, 2021].) The court hopes that a third such decision will not be required in the future.

Footnote 3:The First Department’s decision in Dowd reversed a decision of the undersigned on which defendants rely. (See NYSCEF No. 60 at ¶ 25, citing 2020 NY Slip Op 50594[U] [Sup Ct, NY County May 21, 2020].) Defendants do not mention that reversal.