EUO no show sustained

American Tr. Ins. Co. v Cartagena,  2014 NY Slip Op 31696(U)(Sup. Ct. NY Co. 2014)

“Plaintiff AMERICAN TRANSIT INSURANCE COMPANY in this  declaratory judgment action moves for a summary judgment for the  relief demanded in the Complaint pursuant to CPLR 3212 in its  favor against defendant LONGEVITY MEDICAL SUPPLY, INC. based upon  the failure to provide duly scheduled “Examinations Under Oath”  of defendant assignor REMANSIA CARTAGENA, an individual who

assigned to defendant LONGEVITY MEDICAL SUPPLY, INC., a  medical/health care provider, his/her right to be reimbursed for  benefits under the No-Fault law~ for the expenses of treatment  for injuries suffered in an automobile accident on November 20,  2011.
As held by the First Department in Unitrin Advantage Ins Co  v Bayshore Physical Therapy, 82 AD3d 559, 560 (1st Dept 2011): The failure to appear for [EUOs] requested by the insurer  ” … as … may reasonably [be] require[d]” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. ( 90 NY2d 195 · [1997] ) .

As in Unitrin, here “plaintiff has satisfied its prima facie burden on summary judgment of establishing that it requested (EUOs) in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable”. “The affidavit of service raised a presumption that a·proper mailing occurred, which defendants failed to rebut” (American Transit Insurance Company v Marte-Rosario, 11 AD3d 442 [1st Dept 2013]) . Finally, Cambridge Medical, P.C. v  Progressive Casualty Ins. Co., 29 Misc3d 186 (NYC Civil Co,  Richmond Co 2010), an opinion of coordinate jurisdiction not binding on this court, stands only for the proposition that  under 11 NYCRR 65-3.6, the insurer may send the notice for follow  up verification to the insurer, as assignee, and is not required to so notice the injured party. In addition, Cambridge interprets a rule separate from 11 NYCRR 65-1.1 with respect to  Examinations Under Oath (EUO), the rule at issue here”


The Defendant walked into oral argument according to my report with a case called Cambridge v. Progressive and said that our Dec action was invalid.   I barely recalled Judge Levine’s case as she writes so many.  I look it up and told my attorney if the judge was considering this act of desperation.  He laughed.  I am glad the judge realized this was smoke in mirrors.

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.

Disagreement with the law does not raise an issue of fact

American Tr. Ins. Co. v. Plummer, Index #: 153300/12 (Sup. Ct NY Co. 2014)

“Defendants’ arguments, inter alia that Unitrin was wrongly decided fail to raise any triable issue of fact.  Discovery will not change the fact that Plummer failed to appear at the duly scheduled IMEs.  Settle judgment on notice.”

This says so much in two sentences.

Declaration of non-coverage granted

American Transit Ins. Co. v. Lawal, Index #: 152405/12 (Sup. Ct. NY Co. 2013)

American Transit Ins. Co. v. Devine, Index #: 150505/12 (Sup. Ct. NY Co. 2013)

The usual arguments by the usual suspects does not bear fruit today.  In thorough decisions, Justice Madden explains why a declaration of non-coverage against Defendants is appropriate.

DJ granted – Defendant failed to present evidence that Defendant attended IME

American Tr. Ins. Co. v Urena, 2013 NY Slip Op 31751(U)(Sup Ct. NY CO. 2013) ** American Transit is represented by Law Offices of James F. Sullivan, P.C. **

Here is the most important of the case: “The cross-moving papers show that the letters scheduling the IMEs were properly addressed (to both Urena at the address given and to her attorneys) and mailed (exh I). Dr. Santiago’s affidavit establishes that he was there at the time and place noticed for both IMEs but that Urena did not appear for either exam (exh J). While Dr. Santiago does not explain how he remembers, or what records he reviewed to determine that Urena never appeared, Dr. Santiago did submit an affidavit. And that affidavit has not been contradicted by the movant. Plaintiff has submitted proof that Urena did not appear for either exam and movant has not submitted any proof that she did appear.”

Invariably, defense counsel in her diatribe stated that Plaintiff did not present any records, time stamped documents, and could never recall that this Defendant did not appear on a given date and time.  Again, a Supreme Court Justice says: show me proof that Defendant did show up.  And as is usually the case, Defendant could not present a scintilla of proof on this score.


Res Judicata through a DJ

A winner of the much vaunted Mr. Five Boro award.  An award granted only to the most deserving in our area of jurisprudence.    Ms. Ava Acupuncture has done the Mr. Five Boro award proud.  Cheers.

Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50233(U)(App. Term 2d Dept. 2012)

“By order dated October 26, 2007, the Supreme Court granted defendant’s motion for entry of a declaratory judgment, on default, declaring that defendant had “no present or future obligation to furnish benefits under the Mandatory Personal Injury Protection coverage” to the parties named as defendants in the declaratory judgment action.”

“Based upon the October 26, 2007 order of the Supreme Court, the instant action is barred under the doctrine of res judicata (see Sabatino v Capco Trading, Inc., 27 AD3d 1019 [2006]; Pomona Med. Diagnostics, P.C. v Metropolitan Cas. Ins. Co., 29 Misc 3d 138[A], 2010 NY Slip Op 52039[U] [App Term, 1st Dept 2010]). To hold otherwise could result in a judgment in the instant action which would destroy or impair rights established by the order rendered by the Supreme Court in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]). Contrary to plaintiff’s contention, the Supreme Court’s order is a conclusive final determination, notwithstanding that it was entered on default, and res judicata applies to an order or judgment taken by default which has not been vacated”

The Civil Court – in case you did not know – has limited declaratory judgment powers

Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 2010 NY Slip Op 20131 (App. Term 2d Dept. 2010)

“In any event, the Civil Court would have subject matter jurisdiction in a declaratory judgment involving an obligation of an insurer in which the underlying amount sought to be recovered did not exceed $25,000.”

Dave Gottlieb at NFP has an interesting observation about this case.

Collateral estoppel in the declaratory judgment action does not necessarily apply to the underlying no-fault action

Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 20130 (App. Term 2d Dept. 2010)

“Plaintiff herein was neither named nor served in the declaratory judgment actions nor, at the time, was it in privity with someone who was, and plaintiff otherwise had no full and fair opportunity to appear and defend its interests in those proceedings. Accordingly, the judgments do not collaterally estop plaintiff from recovering in this action (Gramatan Home Invs. Corp. v Lopez, 46 NY2d 481 [1979]; Mid Atl. Med., P.C. v Victoria Select Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51758[U] [App Term, 2d & 11th Jud Dists 2008]; see also Green v Santa Fe Indus., 70 NY2d 244, 253 [1987]). Moreover, as the declaratory judgments were obtained on default, there was no actual litigation of the issues and, therefore, no identity of issues”

Much can be said about this case.  Had Plaintiff Assignee been named and a default was entered, then this would be a closer call.  My concern about this case is the line “[n]or, at the time, was it in privity with someone who was…”

Assume that Claimant, after executing an assignment, violates one of the several conditions precedent to coverage, and the claims are timely and properly denied based upon a violation of a condition precedent to coverage.  I am thinking of  IME no-shows, EUO no-shows and possibly the 30-day written notice rule.

I would posit that those defenses would not apply if the majority’s privity rule is taken to its logical conclusion.  I also have grave reservations about the applicability of the “standing in the shoes” rule, which the Appellate Division, Second Department has asserted numerous times in these types of cases.

Justice Golia’s dissent, besides recounting a fact pattern that leads the reader to the conclusion that the accidents in this matter were intentional and probably offends most people on both sides of the bar, makes some good points.  He pretty much says what I have said above and have always believed, to wit, that the no-fault law and regulations somewhat modify the traditional notions of the common law assignment.

The Courts realize this fact and even said so in A&S Medical, P.C. v. Allstate Ins. Co., 196 Misc.2d 322 (App. Term 1st Dept. 2003), aff’d, 15 AD3d 170 (1st Dept. 2005), whose ultimate outcome I agreed with, when the following was held: “To the extent defendant seeks to invoke the general rule that an assignee is subject to the same defenses as would be available against its assignor (see, General Obligations Law § 13-105), the rule, as codified, finds no application in circumstances where, as here, the assigned claim is “regulated by special provision of law” (id.).

I tend to believe that this case probably should not be appealed any further since the Plaintiff Assignee providers were not named in the complaint.  This is an issue, however, that on proper papers needs to be addressed by the Appellate Division.