Failure to attend IMEs voids coverage – with citation to Court of Appeals precedentNovember 7, 2013

American Transit Ins. Co. v. Lucas, 2013 NY Slip Op 07273 (1st Dept. 2013)


American Tr. Ins. Co. v Lucas
2013 NY Slip Op 07273
Decided on November 7, 2013
Appellate Division, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ. 10975-

152409/12 10976 152413/12

[*1]American Transit Insurance Company, Plaintiff-Appellant,vKeyana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant-Respondent. American Transit Insurance Company, Plaintiff-Appellant, Tashuana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant-Respondent.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis
of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Unitrin, 82 AD3d at 560). [*2]

” [A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption'” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cfFirst Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], *3 [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560).




4 Responses

  1. Mike H says:

    the case often cited by Am Trans New York & Presbyt. Hosp. v Country-Wide Ins. Co., is quite distinguishable from no-show cases. The Court in that case was presented, and answered, the specific question of whether a provider can recover claims if it submits its claims after the 30 day period in which to properly notify the insurer of the accident expired. The lower court held that the 30 day notice requirement was satisfied by timely submitting the claims 45 days after the date of treatment. The Court discussed at length the Regulation’s intentions regarding the 30 day and 45 day notice requirements. The citation at the end of the opinion that the assignment is “worthless …where there is a failure to comply with the terms of the policy.” is inapplicable to no-show cases because the sentence prior to that citation reflects the true intention of the Court: That, “because no written notice of accident was given, there was a failure to fully comply with the terms of the no-fault policy.” Wait, failure to give written notice is a condition precedent to coverage and not a waivable defense? what about LATE notice?

  2. Alan M. Elis says:

    Once again the First Department has cited the Court of Appeals for something the Court of Appeals did not say. First Unitrin v Bayshore cited Central General v Chubb for the proposition that a breach of a policy condition is a lack of coverage; when the Central General v Chubb said that a breach of a policy condition is distinguished from a lack of coverage in the first instance. Now, American Transit v Lucas cites New York & Presbyterian v Country Wide for the proposition that a timely disclaimer is not needed when the there is an “absolute coverage defense.” NY & Presbyterian does not concern late denials at all. It simply stands for the proposition that a hospital bill can only serve as notice of a claim if it is submitted within 30 days of the accident.

  3. JT says:

    It is hard to fault the Appellate Division for agreeing with American Transit’s argument when more than six Supreme Court Judges construed NYP v. Countrywide to mean what the Appellate Division said it meant in Lucas. The question that remains is whether the App. Div. Second Department and Third Department, where appeals are pending on this issue, will agree with the Lucas Court.

  4. Rookie says:

    Second Department actually knows the law. The First Department is somewhere in the no-fault la la land just as the majority of the First Department Supreme Court Justices who blindly follow Unitrin without even reading any case law. I am sure the Second Department will reject the First Department reasoning.

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