Declaratory judgment action and Special proceeding are identical – dismissal denied

Mordini Estates, Inc. v Punto Zero, Inc., 2014 NY Slip Op 51661(U)

“In support of the branch of tenant’s motion seeking to dismiss the petition pursuant to CPLR 3211 (a) (4), tenant failed to demonstrate that the relief sought in tenant’s pending declaratory judgment action was the same or substantially the same as that sought by landlord in this holdover proceeding to recover possession. ” Dismissal on the ground of prior proceeding pending is not appropriate where substantially the same relief is not being sought in the two proceedings’ ”

The quick and dirty of this case is that where a declaratory action and the plenary action or special proceeding seek similar or the same relief, a dismissal motion may be appropriate.  I would note that the Court is Solorzano did not find the no-fault action (seeking recovery on overdue bills) and the declaratory judgment action (seeking a broad coverage based determination) are similar for purposes of this rule.

Failure to settle declaratiory judgment not fatal to summary judgment motion in underlying Civil Court action

New Milennium Medical Imagine, P.C. v. American Transit Ins. Co., Index #: 4588/13 (Civ. Ct. Kings Co. 2013)

The Appellate Term held this month that a Notice of Entry is not a necessary to enforce a judgment under a theory of collateral estoppel.  Of course, the next question to be asked is what happens when you obtain summary judgment in a declaratory judgment action, yet fail to enter a judgment on the underlying judgment?

Certain Plaintiff’s argue that the declaratory judgment is not enforceable.  Not surprisingly, certain judge’s followed that logic.  Enter Justice Ottley, who blew through the smoke and mirrors and held

“Plaintiff argues that due to defendant’s failure to demonstrate tha tit cimplied with the declaratory judgment order to settle judgment, defendant’s motion for a default judgment in the Supreme Court matter should be considered abandoned and result in the declaratory judgment order being deemed moot.  Contrary to plaintiff’s argument, the court finds that defendant’s failure to settle judgment within 60 days as proscribed, did not amount to defendant’s abandonment of the declaratory action.  Rather, defendant is entitled to settle judgment non pro tunc.  See, Elliott Zaretsky v. ok Hui Kin, et. al., 17 AD3d 455 (2d Dept. 2005)

Walking out of an EUO leads to a disclaimer and a whole lot more

American States Ins. Co. v Huff, 2014 NY Slip Op 05366 (1st Dept. 2014)

(1) “[p]laintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured…”

(2) “Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.”

(3) “We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.”

(4) “In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2nd Dept 2011], lv denied 117 NY3d 703 [2011]))”

(5) “Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.”

(6) “An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Const. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2nd Dept 2003]).”

This is perhaps the DJ of the year so far.  So many principles of law have been established and/or confirmed.  First, the medical provider and or assignor must cooperate with the EUO, i.e., attend it and answer questions.  Second, the failure to cooperate during the EUO through walking out during it, objecting too many times, engaging in obstructionist behavior can lead to a violation of a condition precedent to coverage, provided Park v. Long Island Insurance Company warnings are set forth.

The unsettled question that may play out now is: what constitutes obstructionist behavior?  We know the outter bounds of what constitutes this behavior.  But, how many objections is required before a disclaimer may be issued?  What happens if an EIP or medical provider lies during the EUO?  How does Utica v. Timms (you can lie and not lose your benefits) work into this equation?  There a lot of unanswered questions.  In my mind, the extremes will allow for a disclaimer.  Misrepresentations and a few inappropriate objections will probably not trigger a Huff remedy.

On top of that, the contents of the EUO transcript are admissible without further foundation against the medical provider.  Counsel for Defendant was successful at making that argument in Civil Court Kings County against me a few years ago, i.e., you cannot use the contents of the EUO transcript against the innocent assignee.  I thought it was an incredulous argument, which would be shot down at the Appellate Term or Appellate Division.

Funny enough, counsel in the Civil Kings case pressed his luck in front of the First Department and rightfully saw what five learned jurists had to say about that argument.  These are all good things in my mind.

I believe that this case is probably somewhere between the ATIC dj appeals and Unitrin as to its precedential value.


No reasonable excuse found

DTG Operations, Inc. v Excel Imaging, P.C., 2014 NY Slip Op 05030 (1st Dept. 2014)

(1) “In this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defenseIn this declaratory judgment action seeking a declaration that the medical provider defendants have no right to collect no-fault benefits for medical services allegedly provided to the claimant defendants, defendants-respondents failed to offer a reasonable excuse for their default and a meritorious defense”

(2) “In support of their motion to vacate the default, defendants-respondents submitted, among other things, the affidavit of their office and billing manager who stated that she “d[id] not recall” any court papers on this matter, but did not deny receiving any. She further stated that the office location had moved, but did not specify whether that move occurred before or after the date reflected in the affidavits of service. She further asserted that the “summons” did not provide any information from which to link this action to the claimant treated by defendants-respondents. However, the concise, 10-page complaint named defendants-respondents and claimants as defendants in the caption and plainly states that claimants sought medical treatment from defendants-respondents for which plaintiff sought a declaration that defendants-respondents were not entitled to reimbursement.”

(3)  “Further, defendants-respondents’ proffered defense, that the examinations under oath requested by plaintiff are improper, is contrary to law” (see 11 NYCRR 65-1.1).

Another IME no-show victory shrowded in American Transit citations

Healthy Way Acupuncture, P.C. v Allstate Ins. Co.,  2014 NY Slip Op 50841(U)(App. Term 1st Dept. 2014)

“The defendant-insurer made a prima facie showing of entitlement to summary judgment dismissing the action for first-party no-fault benefits by establishing that it timely and properly mailed the notices for independent medical examinations (IMEs) to plaintiff’s assignor, and that the assignor failed to appear (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [2013]). In opposition, plaintiff did not specifically deny the assignor’s nonappearance or otherwise raise a triable issue with respect thereto, or as to the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]).Accordingly, when [plaintiff’s]; assignor[]; failed to appear for the requested medical exams, [defendant]; had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (American Tr. Ins. Co. v Lucas, 111 AD3d at 424), and even though defendant initially denied the claims on different grounds (see Unitrin, 82 AD3d at 560).”

This is a fitting decision as the author of this appeal was my co-author in American Transit v. Solorzano, James F. Sullivan, Esq.

Finally, I was informed that Plaintiff’s main argument was that the IME letters were sent more than 15-business to 30-calendar days after receipt of no-fault billing, therefore the IME letters were not timely.  If I were writing this decision, I would state clearly that the time frames deal with the 10-day follow-up period and that the a denial is not needed.  While the Court reaches this conclusion, it never spells it out.  I believe some of the appeals from Justice Billings’ decisions will force the Court to explicitly spell out the “time frames” the Court is referencing.

EUO no-show DJ is successful (for the most part)

IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C., 2014 NY Slip Op 02902 (2d Dept. 2014)

It is well established that the failure to comply with the standard policy provision requiring disclosure by way of submission to an examination under oath, as often as may be reasonably required, as a condition precedent to performance of the promise to indemnify, constitutes a material breach” of the policy, precluding recovery of the policy proceeds (Bulzomi v New York Cent. Mut. Fire Ins. Co., 92 AD2d 878, 878; see Interboro Ins. Co. v Clennon, 113 AD3d 596; Argento v Aetna Cas. & Sur. Co., 184 AD2d 487, 487-488). In support of that branch of its motion which was for summary judgment, the plaintiff, upon renewal, submitted evidence establishing “that it twice duly demanded an examination under oath” from the assignees, that the assignees twice failed to appear, and that the plaintiff “issued a timely denial of the claims” arising from the assignees’ provision of medical services to the assignors (Interboro Ins. Co. v Clennon, 113 AD3d at 597). Based upon the foregoing, the plaintiff established its prima facie entitlement to judgment as a matter of law. see id.; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721).

“The assignees also failed to raise a triable issue of fact as to the reasonableness or propriety of the demands for the examinations under oath”

“In light of our determination, we need not reach the plaintiff’s remaining contention.”

The Court did not cite to Unitrin, but instead cited to Fogel and Clennon.  It appears that Clennon is now the new Westchester Lincoln, except the carrier won Clennon.  The Court punted the pure Unitrin coverage issue; my hope is that whoever brings this argument has a good record with which to work.


Trial De Novo reqires each award to be equal to or greater than $5000

Imperium Ins. Co. v Innovative Chiropractic Servs., P.C, 2014 NY Slip Op 50697(U)(App. Term 1st Dept. 2014)

The plaintiff insurer commenced the underlying actions, consolidated below, seeking declaratory relief and review by way of trial de novo of five separately issued master arbitrator’s awards issued in favor of defendant medical providers on their claims for first-party no-fault benefits. While Civil Court had jurisdiction to entertain the lawsuit (see CCA 212-a; Brooks v Rivera, 40 Misc 3d 133[A], 2013 NY Slip Op 51191[U] [App Term, 1st Dept 2013]), we sustain the dismissal of the consolidated actions on the merits. De novo review of a master arbitrator’s award is limited to the grounds set forth in CPLR article 75 unless the award is in the amount of $5,000 or more, in which case the dispute is subject to a “plenary judicial adjudication” pursuant to Insurance Law § 5106(b) (see Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987])

Compare this to: Liberty Mut. Ins. Co. v Bayside Pain & Rehabilitation Medicine, P.C., 39 Misc.3d 148(A)(App. Term 2d Dept. 2013)(construing DISTRICT COURT act).  I am curious why the Legislature gave a broader grant of jurisdiction in the NYCCCA as opposed to the UDCA.  As to the $5,000 rule, my only remark is that the Appellate Term has now incentivized the splitting of no-fault billings to avoid eventual de-novo review.

Declaratory judgment action given preclusive effect

Flatlands Med., P.C. v Kemper Ins. Co., 2014 NY Slip Op 50419(U)(App. Term 2d Dept, 2014)

“In support of its motion, defendant established that a declaratory judgment had been entered on default in a Supreme Court, New York County, action, which provided that the named defendants in that action, including plaintiff herein, “are not entitled to recover assigned first-party no-fault benefits stemming from the accident at issue.” As the instant action seeks to recover for assigned first-party no-fault benefits arising from the same accident at issue in the Supreme Court case, defendant’s motion was properly granted”

Stay not granted in declaratory judgment action

Ingram v Miller, 2014 NY Slip Op 01296 (2d Dept. 2014)

“Except where otherwise prescribed by law, the court in which an action is pending may grant a stay of proceedings in a proper case, upon such terms as may be just” (CPLR 2201; see Morreale v Morreale, 84 AD3d 1187, 1188). Here, the Supreme Court did not improvidently exercise its discretion in denying the appellant’s motion to stay all proceedings in the subject actions pending resolution of an action commenced by a codefendant’s insurer seeking, among other things, a declaratory judgment regarding insurance coverage for the codefendant. The parties in the declaratory judgment action were not sufficiently identical to, or overlapping with, the parties in these actions to warrant a stay”

So what did the Second Department mean?

Interboro Ins. Co. v Clennon, 2014 NY Slip Op 00092 (2d Dept. 2014)

While of course I am happy to have won, and, in addition, I can say I have written more IME/EUO no show briefs than I could ever imagine, this case leaves me with a “where are we going” feeling.  I wrote the brief, argued the appeal and know the record, so this opinion – how it was written – was unexpected.

Should I now start filing in Nassau again? Well, it is across the street from my office and the filing rules are a lot more convenient than what I encounter at a Motion Support Part, Room 130.  The clerks are nice there.  For instance, a clerk in Supreme Queens told me today that there was no such thing as a hybrid Article 78/Dec action and started crossing out “Plaintiff” (next to petitioner) and “Defendant” (next to respondent) on my papers.  I decided that I would file my memorandum of law on the return date in the Central Motion Part courtroom.  I shrugged my shoulder since that was not the fight to pick.

So what did Clennon say:

Part One

“The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the policy, precluding recovery of the policy proceeds” (Argento v Aetna Casualty & Surety Co., 184 AD2d 487, 487-488; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559).”

Argento does not mention preclusion.  It solely states that failing to attend an EUO is fatal to the Claimant’s right of recovery under the policy.  Then Unitrin is mentioned, which is what started this whole coverage storm.  And Unitrin and all of the First Department cases I won that cite to it state that timeliness is irrelevant.

What was not mentioned?  Westchester v. Lincoln.  The court was well aware of that decision as it was in Appellant’s brief and mentioned during argument.  This omission was no accident by the way.

Then the Court states this in one sentence: “Here, the plaintiff insurer established as a matter of law that it twice duly demanded an examination under oath from the appellants’ assignor, who had allegedly been injured in a motor vehicle accident, that the assignor twice failed to appear, and that the plaintiff issued a timely denial of the claims arising from the appellants’ treatment of the assignor.

Was the “timeliness” issue dicta?  In other words, mention it so that way the Court did not have to unequivocally reach the Unitrin issue?  I suspect this is what happened, and I truly believe that through arguing this case.  I think the court passed the buck to the Appellate Term, Second Department, to see what they will do.

By analogy, do any of you remember when the Appellate Term, First Department in 2006 said: “Even assuming, without deciding, that a peer review report may suffice, without more, to establish a prima facie showing of lack of medical necessity” (Vladimir Zlatnick, M.D., P.C. v Travelers Indem. Co., 12 Misc.3d 128(A))?  Now, Plaintiffs in the First Department on appeal depending on the case have to jump through hoops  to beat back summary judgment on the issue of lack of medical necessity.  I think this could be the beginning of the tide change, a slow one at that.

The only problem with my hypothesis is that inasmuch as so few failure to comply cases make it to the Appellate Division, Second Department, it will be many years before my hypothesis is proven correctly or incorrectly.

Part Two

A few more tidbits.  The Court accepted the same affidavit of mailing and no show that was accepted in Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc.3d 143(A) and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146(A).  This is similar to American Transit v. Lucas, where the Appellate Division, First Department, accepted a no-show affidavit that was between “I was there and he did not show” and the conclusory “I am a partner and I know he did not show”.  So, Alrof is dead but W&Z is not revived.  Something in the middle is the law.  In addition, Defendant argued vigorously that my affidavit was not Alrof compliant, so the issue was squarely before the Court.

The court also found persuasive the argument that discovery was waived since there was no challenge to the propriety of the EUO notices during the claims verification sta ge.

I wish I could say there would be more of these cases being appealed to this Court, but this was my only Second Department case (from my 2010 inventory) and I was Respondent.  I think Progressive files a lot of no-show DJ’s in Nassau?