December 7, 2016

J.K.M. Med. Care, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 26424)

https://www.beynensonlaw.com/case-law/j-k-m-med-care-p-c-v-ameriprise-ins-co-2016-ny-slip-op-26424/

Court: Appellate Term, Second Department
Decided: December 7, 2016
Citation: 2016 NY Slip Op 26424 · 54 Misc 3d 54
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Declaratory judgment, res judicata EUO no-show Timeliness and preclusion
Legal questions: Effect of insurer's declaratory judgment · Proof of mailing · No-show defense: insurer's proof (see the maps)

Cite as

J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 54 Misc 3d 54 (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 provider was not bound by a coverage declaration against its assignor because the assignment preceded the proceeding and the provider was absent. The provider was neither named nor served and lacked privity with the assignor when the insurer commenced the proceeding. Without a full and fair opportunity to defend its interests, it was not subject to dismissal based on the default declaration. The insurer's alternative EUO nonappearance defense also failed: it did not establish timely, proper mailing of scheduling letters, and the letters omitted reimbursement advice for lost earnings and reasonable transportation costs required by 11 NYCRR 65-3.5 (e). The Appellate Term, Second Department, reversed and denied the insurer's summary judgment motion.

Reported in New York Official Reports at J.K.M. Med. Care, P.C. v Ameriprise Ins. Co. (2016 NY Slip Op 26424)

J.K.M. Med. Care, P.C. v Ameriprise Ins. Co.

2016 NY Slip Op 26424 [54 Misc 3d 54]

Accepted for Miscellaneous Reports Publication

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 15, 2017

[*1]

J.K.M. Medical Care, P.C., as Assignee of Latoya Payne, Appellant,
v
Ameriprise Insurance Company, Respondent.

Supreme Court, Appellate Term, Second Department, 2d, 11th and 13th Judicial Districts, December 7, 2016

APPEARANCES OF COUNSEL

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for appellant.

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

{**54 Misc 3d at 55} OPINION OF THE COURT

Memorandum.

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

Plaintiff commenced this action on May 6, 2013 to recover assigned first-party no-fault benefits for medical services that it had provided as a result of a motor vehicle accident that had occurred on May 5, 2011. The injured party, Latoya Payne, signed an assignment of benefits to plaintiff on May 6, 2011. Defendant purported to schedule an examination under oath (EUO) of the assignor to be held on July 29, 2011, and, upon the assignor’s alleged nonappearance, a follow-up EUO on September 12, 2011. Subsequent to the assignment of benefits and the scheduling of the EUOs, defendant commenced a proceeding against Latoya Payne, Tevin Jackson and two other individuals in the Supreme Court, Kings County, to compel them to appear at EUOs, asserting in the petition that they had failed to appear for two scheduled examinations. Defendant’s petition also sought declaratory relief in the event of their nonappearances at a future EUO. Plaintiff was not named as a respondent in the proceeding. The Supreme Court granted defendant’s motion, and defendant then purported to schedule a third EUO to be held on April 27, 2012. Thereafter, defendant moved in the Supreme Court, pursuant to CPLR 3215 (a), for a default judgment against Latoya Payne, Tevin Jackson and the two other individuals, and argued that they had failed to appear for the third EUO. By order dated December 5, 2012, the Supreme Court granted defendant’s motion and declared that all first-party coverage for no-fault benefits was disclaimed as to Latoya Payne and the three other individuals, or any assignee under the subject policy with respect to the motor vehicle collision at issue.{**54 Misc 3d at 56}

On August 21, 2013, defendant moved in the Civil Court for summary judgment dismissing the complaint on the grounds that defendant is not obligated to pay assigned first-party no-fault benefits to plaintiff in light of the Supreme Court order and that the assignor had failed to appear for scheduled EUOs. Plaintiff opposed the motion, arguing, among other things, that it is not bound by the declaratory judgment rendered in the Supreme Court proceeding and that defendant failed to establish that it had timely and properly scheduled EUOs. By order entered May 1, 2014, the Civil Court granted defendant’s motion. We reverse.

[*2]

Plaintiff herein was neither named nor served in the Supreme Court proceeding, nor, at the time, was plaintiff in privity with its assignor, who was a named party in that proceeding, as the assignment of benefits had been executed before defendant had commenced the Supreme Court proceeding to compel the assignor’s appearance at an EUO or for declaratory relief upon the assignor’s failure to appear. As plaintiff had no full and fair opportunity to appear and defend its interests in the Supreme Court proceeding, the present action in the Civil Court is not subject to summary judgment dismissing the complaint by virtue of the Supreme Court declaration (see Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co., 37 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant argues that, even in the absence of a judicial declaration, the order granting defendant’s motion for summary judgment dismissing the complaint should be affirmed on the alternative ground that plaintiff’s assignor had failed to appear for duly scheduled EUOs. However, contrary to defendant’s assertion, defendant failed to establish that it had timely and properly mailed its EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff properly argues that the scheduling letters failed to advise the assignor, in accordance with 11 NYCRR 65-3.5 (e), that she would be reimbursed for any loss of earnings and reasonable transportation costs incurred in complying with the request for an EUO. Thus, defendant failed to demonstrate entitlement to summary judgment dismissing the complaint on either ground.{**54 Misc 3d at 57}

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

Solomon, J.P., Weston and Elliot, JJ., concur.

Legal questions (3)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Effect of insurer's declaratory judgment

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Does an insurer’s no-coverage declaratory judgment, or pending declaratory action, bar or stay a no-fault claimant’s action?

This decision: No preclusion because the claimant (or insurer) was not a party or privy to the DJ

Held the Supreme Court default declaration did not bar the provider, which was neither named nor served and not in privity because its assignment predated the proceeding, so it had no full and fair opportunity.

Barred by DJBarred in partNot bound: partiesDJ does not reachStayed pending DJStay deniedThis decisionCites it or cited by itCited or followed

Of the 163 decisions on this question in the Second Department courts and the Court of Appeals, 20 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer failed to establish that it timely and properly mailed its EUO scheduling letters.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed (rules on the question, but another ground decided the case)

Rejected the EUO no-show defense as an alternative ground because the insurer did not prove timely mailing of the scheduling letters, which also omitted the 65-3.5 (e) reimbursement notice.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Smooth Dental, P.L.L.C. v Preferred Mut. Ins. Co. (2012 NY Slip Op 22301) FollowedThe provider was not bound by a declaratory judgment against its assignor because the assignment preceded that action.
Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co. (2010 NY Slip Op 20130) FollowedThe provider was not collaterally estopped by default declaratory judgments in actions where it was neither a party nor in privity.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Cited by

A label shows how the later decision treated this one.

Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U)) FollowedThe insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion.
Gentlecare Ambulatory Anesthesia Servs. v MVAIC (2019 NY Slip Op 51039(U)) FollowedMVAIC's declaratory judgment did not bind a provider whose assignment preceded that proceeding and who was neither named nor served.

Similar decisions

J.K.M. Med. Care, P.C. v Ameriprise Auto & Home Ins. Co. (2016 NY Slip Op 51773(U))The insurer's summary judgment motion based on a Supreme Court order and alleged assignor EUO nonappearances was denied on appeal.
PR Med., P.C. v Travelers Home & Mar. Ins. Co. (2018 NY Slip Op 51649(U))The insurer established timely EUO notices and denials and the assignor's two nonappearances; the provider raised no triable issue.
Barakat Med. Care, P.C. v Nationwide Ins. Co. (2015 NY Slip Op 51677(U))An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance.
LPM Pharm., Inc. v Nationwide Prop. & Cas. Ins. Co. (2024 NY Slip Op 51191(U))The no-fault regulations do not require EUO notices to be provided in writing.
First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 50593(U))The insurer established two EUO nonappearances and timely denials, warranting dismissal with prejudice rather than dismissal as premature.