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?

Civil Court properly granted motion to stay when DJ action is pending

Compas Med., P.C. v Geico Ins. Co., 2013 NY Slip Op 52016(U)(App. Term 2d Dept 2013)

“In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to stay the action, pursuant to CPLR 2201, pending a final determination of a declaratory judgment action that had been commenced by defendant in the Supreme Court, Nassau County, entitled Geico Ins. Co. v Andre (Index No. 8085/2011). In that action, Geico alleged that the defendants named therein had engaged in a large-scale illegal scheme involving staged accidents and fraudulent billing practices and therefore Geico sought a declaration that it was not obligated to pay, among other things, no-fault benefits to those defendants. Both plaintiff and its assignor are named as defendants in the declaratory judgment action.

“[A] court has broad discretion to grant a stay in order to avoid the risk of inconsistent adjudications, application of proof and potential waste of judicial resources” (Zonghetti v [*2]Jeromack, 150 AD2d 561, 563 [1989]). Under the circumstances presented herein, it was not an improvident exercise of discretion for the Civil Court to grant defendant’s motion to stay this action pending the resolution of the Supreme Court declaratory judgment action (see CPLR 2201).”

Great decision!

DJ denial reversed: A misspelling can be excused, and notice to the attorney is enough

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa
Betancourt of counsel), for Empire Acupuncture, PC,
Amos Weinberg, Great Neck, for Multiple Medical Health
Services P.C. and Infinite Chiropractic, PLLC, respondents.

American Tr. Ins. Co. v Marte-Rosario, 2013 NY Slip Op 07416 (1st Dept. 2013)

“Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011],lv denied 17 NY3d 705 [2011]).”

The address in this case for Assignor was  “632 Faile Street, #1, Bronx, New York 10474.”  It was noted in certain proofs that correspondences were sent to: “632 Failes Street, #1, Bronx, New York 10474.”  Thus, a letter was presented showing that correspondence was returned if mailed to that address.  The Court held that this did not matter, and would require an affidavit of non-receipt of Marte-Rosario on this score to defeat the motion.

Moreover,  the court said that even if the letter was not received by Marte-Rosario, it was received by her personal injury attorney,The Law Offices of Barry Richard Feldman, LLC.  Also, be aware that there was no proof in the record, i.e., a letter of representation, that Claimant was actually represented by Mr. Feldman.  Under Appellate Term, and now Appellate Division jurisprudence, the burden is on the objectant – i.e. the medical provider or EIP – to demonstrate that the purported attorney was not counsel for Claimant when the letters were sent.

A very powerful case.

Motion to compel arbitration denied

Interboro v. Boris Kleyman, Index #: 152395/10 (Supreme Ct. NY Co. 2013)


In this particular matter, Plaintiff moved to reargue the prior order of Supreme Court, dismissing the matters against certain Defendants on the basis the a provider has the unilateral choice to chose to arbitrate its bills.

As can be seen, the Court realized that the weight of judicial authority holds that an insurance carrier has the right, in the first instance, to litigate coverage issues in a Supreme Court action.  Thus, leave to reargue was granted and, upon reargument, the motion to dismiss was denied en toto.

It should be noted that the initial opinion was published.  Hopefully, this opinion will in turn be published.

**CORRECTION** Opinion was published today, 11/7/13

I will say that Justice Kern, to her credit, will reverse herself on reargument when presented with persuasive authority to do same.

Many of the same arguments packaged in one set of motion papers

American Transit v. Delia Ortiz. (Sup. Ct. Bronx Co. 2013)

American Transit v. Joshua Fagan (Sup. Ct. NY Co. 2013)

Perhaps the Supreme Court judges are naturally good at sifting through baseless “you didn’t do that” arguments?