Dilemma and dogmaJune 30, 2018
Hertz Vehicles, LLC v Best Touch PT, P.C.,2018 NY Slip Op 04854 (1st Dept. 2018)
(1) “Plaintiff failed to meet its burden of filing “proof of the facts constituting the claim” for a default declaratory judgment (CPLR 3215[f]) against the medical provider defendants, i.e., proof establishing that the notices of examination under oath (EUO) that it served on those defendants complied with the timeliness requirements of 11 NYCRR 65-3.5(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; Natl. Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]). An insurer must request any “additional verification . . . to establish proof of claim” within 15 business days after receiving the “prescribed verification forms” it forwarded to the parties required to complete them (11 NYCRR 65-3.5[a], [b]). As none of the motion papers, including the affidavit by plaintiff’s claims adjuster, annexes or gives the dates of the prescribed verification forms or other proofs of claim submitted by the medical provider defendants, it is not possible to determine whether the EUO notices were sent to them within 15 business days of plaintiff’s receipt of the form”
What was interesting is in the last appeal of a lost DJ, the Court appeared to walk around 65-3.5 and 65-3.6 when the issue involved a default. The rationale could be found in the dissent of Longevity and sub silentio set forth in the majority opinion in the same. This case now applies the summary judgment standard to defaults.
(2) “Plaintiff’s argument on appeal that the providers’ bills are “prescribed verification forms” and its attempt to relate the deadlines applicable to one defendant’s EUO requests to another defendant’s submission of claims documentation or appearance for an EUO are unpreserved and, in any event, unsupported.”
Certain defense attorneys have tried to use the bootstrap method to establish timeliness. I never bought it.
(3) “The court erred in denying plaintiff’s motion for a default judgment against Bellevue on the ground that the motion did not contain any letter reflecting that Bellevue’s EUO transcript was sent to her for signature. The motion does contain such a letter, dated March 14, 2016, as well as a follow-up letter, dated April 20, 2016, and accompanying affidavits of service. As the [*2]failure to submit to an EUO and “subscribe the same” violates a condition precedent to coverage (see 11 NYCRR 65-2.4[c]), plaintiff provided adequate proof of its claims against Bellevue (see DTG Operations, Inc. v Park Radiology, P.C., 2011 NY Slip Op. 32467[U], *5-6 [Sup Ct, NY County 2011]”
This should worry anyone because I highly doubt that DFS (absent a Thrasher showing) ever advocated for a voiding of the policy due to the failure to sign a transcript. I see a circular letter coming on this issue, similar to when DFS issued a circular letter to overturn Soundshore.