Prestige Med. P.C. v Travelers Home & Mar. Ins. Co., 2014 NY Slip Op 24317 (Civ. Ct. 2014)
You can read this Civil Court case a bunch of different ways. There are two statements of law that I think ring true.
Statement number 1
The first is that Unitrin does apply in the Second Department. Judge Levine noted that Interboro v. Clennon cited Unitrin for the proposition of law that the failure to cooperate with an EUO allows a disclaimer. Unitrin of course stands for the proposition that a failure to attend IME’s voids coverage. Unitrin was supported through American Transit v. Lucas, where that Court cited to NY Presbyterian v. Countrywide for the proposition of law that the failure to attend IMEs is an absolute coverage defense. In American States v. Huff (an extremely important case in this arena for so many reasons) the Court held that the failure to participate in an EUO is an absolute coverage defense. This would be attending and saying “I am not going to answer questions” or even prior to a first no show calling the insurance company or their agent and saying “I am not going to appear, get lost.”
Judge Levine drawing in a decision by Judge Hirsh (which he probably will not follow because he is bound by the Appellate Term’s failure to recognize or cite Clennon in favor of Lincoln General from 2009), has held that she will follow Unitrin. Or course, JHO Spodek told the world he will not let “peer hearsay” into evidnec despite what the Appellate Term says, and we all know where that got his cause. A trailblazer with an illusory cause?
Statement number 2
The second statement is that a provider EUO must be scheduled within 15 business days of the completed EIP EUO to preserve the toll. This is nothing new, as the Appellate Term, First Department held this way last year in a NYCM case. She goes on to say that Untirin will not be followed if the verification, viz, provider EUO demand is mailed more than 15 business days following the EIP EUO, and the day for day deductions in the regulations for timeliness of denials would apply. This is probably a bit off base, trying to apply a hybrid of Unitrin and Lincoln General. I think the Appellate term was implicit in holding that if the provider EUO demand is scheduled more than 30-days following the EIP EUO (verification issued more than 30-days following receipt of prior verification would run afoul of Ins Law. 5106 and Westchester v. GMAC [2007]), the toll would be lost and the coverage defense would be lost.
6 Responses
Judge Levine while she bublishes many decisions and many of them are quite good, this decision while excellent on the issue of date calculation for the purpose of issuing a denial, she is the only or one of very scarce few that follows Unitrin. Her following of Unitrin is contrary to Westchester v. Lincoln and is in direct biolation of the long ago established principle as enunciated in Mountiane View v. Coach which explicitly holds the lower courts are bound to follow the decisions of their appellate division.
Rookie: Does this mean you promise never to raise Ralph Medical when somebody seeks to have your client attend a deposition on a medical necessity case? I believe Great Health v. Interboro and Jamaica v. Interboro is dispositive of this issue in the Second Department.
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Fwucking Unitwin bigger den Rwoe v. Wade.
Worse den Pwessy v. Ferguson.
Its interesting how in Great Health v. Interboro, the carrier moved for summary judgement telling the court that there are no material triable issues of fact and that the carrier is entitled to summary judgement, or but wait if the carrier cannot establish its motion, the the court should guve the carrier discovery as to those defenses the carrier raised in the denials. Appellate Term seems to comdone such flimsy practices.
Such type of a motion can only work one before the civil court and the appellate term, the fact that the carrier even raised the issue of discovery should as automatically make the motion for summary judgement premature and procedurally improper and in fact disingenious. If the carrier wants to move for discovery then step up and move for discovery, if the carrier has his ducks in order move for summary judgement. Such sloppy motion practice would not work in Supreme.
How is anything about fucking no fault “interesting.”
It’s like watching corrupt paint dry.
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