As I indicated at one point prior, there is an issue as to whether NYP v. Countrywide has aligned the Court of Appeals with Unitrin v. Bayshore. One Court seems to have agreed with my proposition. “American Transit v. Mayo“, index # 1573/11 (Sup. Ct. Nassau. Co. 2012 [Woodard, J.])
I have copied the “.pdf” I received in the mail onto this blog.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
——————————————————————–X
AMERICAN TRANSIT INSURANCE COMPANY,
-against-
ANDREW MAYO,
BARON LEA, INC.,
BEST TOUCH, P.T., P.C.
Plaintiff,
BRAND MEDICAL SUPPLY, INC.,
D&H REHABILITATION MEDICAL, P.c.
DOVPHIL ANESTHESIOLOGY GROUP, PLLC.,
DYNAMIC MEDICAL IMAGING, P.C.
ENJOY REHAB, P.T., P.C.
FREEDOM CHIROPRACTIC, P.C.
KKM MEDICAL DIAGNOSTICS, P.C.
MIDWOOD TOTAL REHABILITATION MEDICAL, P.C.
MIRA ACUPUNCTURE, P.C.
PARK RADIOLOGY, P.C.
PARK SLOPE ADVANCED MEDICAL, PLLC.
SAS MEDICAL, P.C.
TARNOFF CHIROPRACTIC, P.c.
BIO REFERENCE LABS
BRUCEC. BROMBERG, D.C.
DAVID HERSHKOWITZ, D.C.
Defendants.
——————————————————~–X
Papers Read on this Motion:
Plaintiff’s Notice of Motion 01
MICHELE M. WOODARD
J.S.C.
TRIAL/IAS Part 8
Index No.: 11573/11
Motion Seq. No.: 01
Upon the foregoing papers, this unopposed motion by the plaintiff, AMERICAN TRANSIT INSURANCE COMPANY, for leave to enter a default judgment against defendants: ANDREW MAYO, BARON LEA, INC., BEST TOUCH, P.T., P.C., D&I-I REHABILITATION MEDICAL, P.C.; DOVPHIL ANESTHESIOLOGY GROUP, PLLC., DYNAMIC MEDICAL IMAGING, P.C.; ENJOY REHAB, P.T., P.C.; FREEDOM CHIROPRACTIC, P.C.; KKM MEDICAL DIAGNOSTICS, P.C’! MIDWOOD TOTAL REHABILITATION MEDICAL, P.C.; MIRA ACUPUNCTURE,P.C.; PARK RADIOLOGY, P.C.; PARK SLOPE ADVANCED MEDICAL, PLLC.; SAS MEDICAL, P.C.; TARNOFF CHIROPRACTIC; P.C.; BIO REFERENCE LABS; BRUCE C. BROMBERG, D.C.; DAVID HERSHKOWITZ, D.C. (hereinafter “defaulting defendants”), ordering, adjudging and decreeing that the above defendants are not entitled to no-fault coverage for a motor vehicle accident that occurred on September 7, 2010 is granted.
Similarly, this unopposed motion for summary judgment against BRAND MEDICAL SUPPLY,INC., (“appearing defendants”) ordering, adjudging and decreeing that the above defendant is not entitled to no-fault coverage for a motor vehicle accident that occurred on September 7, 2010 is granted.
FACTS OF THIS MATTER
According to the proofs submitted on this motion, a policy of insurance under BY Al 02536 was issued and in effect on September 7, 2010, when Defendant ANDREW MAYO (an eligible injured person) was involved in a motor vehicle accident. An Independent Medical Examination (hereinafter “IME”) scheduling letter, with proper proof of mailing was sent to ANDREW MAYO on November 19,2010, requesting his appearance for an IME on December 2, 2010. Defendant ANDREW MAYO failed to attend this IME, as is evidenced through the affidavits of the IME vendor and the healthcare professionals who were supposed to conduct the IME.
A follow-up IME scheduling letter, with proper proof of mailing was sent to Defendant ANDREW MAYO on December 6, 2010, scheduling an WE for December 15, 2010. Defendant ANDREW MAYO failed to attend this IME, as is evidenced through the affidavits of the IME vendor and the healthcare professionals who were supposed to conduct the IME. On December 23, 2010, the claim was denied on the basis inter alia that Defendant ANDREW MAYO failed to appear for his IME appointments.
DISCUSSION
An appearance at an IME is a condition precedent to coverage under the no-fault policy of insurance, which all insurance policies are construed to contain. Ins. Law § 5106(a). See Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U), 27 Misc 3d 139(A)(App. Term 1st Dept. 2010). An IME is also a verification request.
The law requires that “[IME] requests be made in compliance with the time limits set forth in the verification procedures.” Inwood Hill Medical. v. Allstate Ins. Co., 15 Misc. 3d 143(A)(App. Term 1st Dept. 2007) citing 11 NYCRR65- 3.5(b); 11 NYCRR 65- 3.6(b); Bronx Med. Servs. P.C. v Windsor Ins. Co. 2003 NY Slip Op 50885(U)(App. Term. 1st Dept. 2003).
An insurance carrier must also prove that the IME letters were mailed (St. Vincent’s Hasp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]) and that the injured person failed to attend the.IME’s. Stephen Fogel Psychological, P. e. v Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006). See Celtic Med. P.e. v New York Cent. Mut. Fire Ins. Co., 15 Misc.3d 13 (App. Term 2d Dept. 2007).
The Appellate Division also held that: “The failure to appear for IMEs requested by the insurer when, and as often as, it may reasonably require (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]). Accordingly, when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 (1st Dept 2011).
The Court of Appeals in New York & Presbyt. Hasp. v Country-Wide Ins. Co., 17 NY3d 586 (2011), in a similar matter observed that where there “[w]as a failure to fully comply with the terms of the no-fault policy … which is a condition precedent to insurer liability … the assignment effectively became worthless … you cannot assign your right to benefits if your right to those benefits has not been triggered, or if you had no right to those benefits in the first place.”
Similarly there was ample proof that the claim was denied within 30-days from the last IME no-show. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept 2009); Interboro Ins. Co. v Bennet, 2011 WL 5006424 (Sup. Ct. Nassau Co. 2011). C.f. New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 at 592-593.
The CPLR allows a default judgment to be entered when the requisite time period has elapsed. Where Defendants have not appeared or answered and proof of the facts of the loss is supplied through affidavit or a properly verified pleading. See CPLR § 3215(f). In Mercury Cas. Co. v Surgical Center at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), the Appellate Division held that: “the plaintiff demonstrated its entitlement to a default judgment against the defendant by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant’s default in answering or appearing.”
Similarly, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See CPLR § 3212(b); Muscaella v City of New York, 215 AD2d 463 (2d Dept. 1995).
In the Court’s opinion, Plaintiff has presented sufficient proof to demonstrate that defendants breached a condition precedent to coverage through failing to attend their IME’ s.
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for leave to enter a default judgment against the defaulting Defendants is granted; and it is further
ORDERED that Plaintiffs motion for summary judgment against the appearing Defendant is granted; and it is further
ORDERED, ADJUDGED and DECREED that Defendants ANDREW MAYO, BARON LEA, INC., BEST TOUCH, P.T., P.C. BRAND MEDICAL SUPPLY, INC., D&H REHABILITATION MEDICAL, P.C. DOVPHILANESTHESIOLOGY GROUP, PLLC.; DYNAMIC MEDICAL IMAGING, P.C ENJOY REHAB, P.T., P.C.; FREEDOM CHIROPRACTIC, P.C.; KKM MEDICAL DIAGNOSTICS, P.C.; MIDWOOD TOTAL REHABILITATION MEDICAL, P.C.; MIRA ACUPUNCTURE, P.C.; PARK RADIOLOGY, P.C.; PARK SLOPE ADVANCED MEDICAL, PLLC.; SAS MEDICAL, P.c.; TARNOFF CHIROPRACTIC, P.C.; BIO REFERENCE LABS; BRUCE C. BROMBERG, D.C.; DAVID HERSHKOWITZ, D.C., are not entitled to no-fault coverage or fist-party coverage, as a result of a motor vehicle accident that occurred on September 7, 2010.
This constitutes the Decision and Order of the Court.
DATED:
February 3, 2012
Mineola, N.Y. 11501
ENTER:
HON. MICHELE M. WOODARD
J.S.C.
Similarly, this unopposed motion for summary judgment against BRAND MEDICAL SUPPLY,INC., (“appearing defendants”) ordering, adjudging and decreeing that the above defendant is not entitled to no-fault coverage for a motor vehicle accident that occurred on September 7, 2010 is granted.
FACTS OF THIS MATTER
According to the proofs submitted on this motion, a policy of insurance under BY Al 02536 was issued and in effect on September 7, 2010, when Defendant ANDREW MAYO (an eligible injured person) was involved in a motor vehicle accident. An Independent Medical Examination (hereinafter “IME”) scheduling letter, with proper proof of mailing was sent to ANDREW MAYO on November 19,2010, requesting his appearance for an IME on December 2, 2010. Defendant ANDREW MAYO failed to attend this IME, as is evidenced through the affidavits of the IME vendor and the healthcare professionals who were supposed to conduct the IME.
A follow-up IME scheduling letter, with proper proof of mailing was sent to Defendant ANDREW MAYO on December 6, 2010, scheduling an WE for December 15, 2010. Defendant ANDREW MAYO failed to attend this IME, as is evidenced through the affidavits of the IME vendor and the healthcare professionals who were supposed to conduct the IME. On December 23, 2010, the claim was denied on the basis inter alia that Defendant ANDREW MAYO failed to appear for his IME appointments.
DISCUSSION
An appearance at an IME is a condition precedent to coverage under the no-fault policy of insurance, which all insurance policies are construed to contain. Ins. Law § 5106(a). See Apollo Chiropractic Care, P.C. v Praetorian Ins. Co., 2010 NY Slip Op 50911(U), 27 Misc 3d 139(A)(App. Term 1st Dept. 2010). An IME is also a verification request.
The law requires that “[IME] requests be made in compliance with the time limits set forth in the verification procedures.” Inwood Hill Medical. v. Allstate Ins. Co., 15 Misc. 3d 143(A)(App. Term 1st Dept. 2007) citing 11 NYCRR65- 3.5(b); 11 NYCRR 65- 3.6(b); Bronx Med. Servs. P.C. v Windsor Ins. Co. 2003 NY Slip Op 50885(U)(App. Term. 1st Dept. 2003).
An insurance carrier must also prove that the IME letters were mailed (St. Vincent’s Hasp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2d Dept 2008]) and that the injured person failed to attend the.IME’s. Stephen Fogel Psychological, P. e. v Progressive Cas. Ins. Co., 35 AD3d 720 (2d Dept. 2006). See Celtic Med. P.e. v New York Cent. Mut. Fire Ins. Co., 15 Misc.3d 13 (App. Term 2d Dept. 2007).
The Appellate Division also held that: “The failure to appear for IMEs requested by the insurer when, and as often as, it may reasonably require (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]). Accordingly, when defendants’ assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued. Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 (1st Dept 2011).
The Court of Appeals in New York & Presbyt. Hasp. v Country-Wide Ins. Co., 17 NY3d 586 (2011), in a similar matter observed that where there “[w]as a failure to fully comply with the terms of the no-fault policy … which is a condition precedent to insurer liability … the assignment effectively became worthless … you cannot assign your right to benefits if your right to those benefits has not been triggered, or if you had no right to those benefits in the first place.”
Similarly there was ample proof that the claim was denied within 30-days from the last IME no-show. Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 (2d Dept 2009); Interboro Ins. Co. v Bennet, 2011 WL 5006424 (Sup. Ct. Nassau Co. 2011). C.f. New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586 at 592-593.
The CPLR allows a default judgment to be entered when the requisite time period has elapsed. Where Defendants have not appeared or answered and proof of the facts of the loss is supplied through affidavit or a properly verified pleading. See CPLR § 3215(f). In Mercury Cas. Co. v Surgical Center at Milburn, LLC, 65 AD3d 1102 (2d Dept. 2009), the Appellate Division held that: “the plaintiff demonstrated its entitlement to a default judgment against the defendant by submitting proof of service of the summons and complaint, proof of the facts constituting its claim, and proof of the defendant’s default in answering or appearing.”
Similarly, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. See CPLR § 3212(b); Muscaella v City of New York, 215 AD2d 463 (2d Dept. 1995).
In the Court’s opinion, Plaintiff has presented sufficient proof to demonstrate that defendants breached a condition precedent to coverage through failing to attend their IME’ s.
Accordingly, it is hereby,
ORDERED that Plaintiffs motion for leave to enter a default judgment against the defaulting Defendants is granted; and it is further
ORDERED that Plaintiffs motion for summary judgment against the appearing Defendant is granted; and it is further
ORDERED, ADJUDGED and DECREED that Defendants ANDREW MAYO, BARON LEA, INC., BEST TOUCH, P.T., P.C. BRAND MEDICAL SUPPLY, INC., D&H REHABILITATION MEDICAL, P.C. DOVPHILANESTHESIOLOGY GROUP, PLLC.; DYNAMIC MEDICAL IMAGING, P.C ENJOY REHAB, P.T., P.C.; FREEDOM CHIROPRACTIC, P.C.; KKM MEDICAL DIAGNOSTICS, P.C.; MIDWOOD TOTAL REHABILITATION MEDICAL, P.C.; MIRA ACUPUNCTURE, P.C.; PARK RADIOLOGY, P.C.; PARK SLOPE ADVANCED MEDICAL, PLLC.; SAS MEDICAL, P.c.; TARNOFF CHIROPRACTIC, P.C.; BIO REFERENCE LABS; BRUCE C. BROMBERG, D.C.; DAVID HERSHKOWITZ, D.C., are not entitled to no-fault coverage or fist-party coverage, as a result of a motor vehicle accident that occurred on September 7, 2010.
This constitutes the Decision and Order of the Court.
6 Responses
very nice. reference to nyp v countywide is dicta. ct also states, “there was ample proof that the claim was denied within 30-day”…. still waiting for a holding…
A singular achievement. Although granted on default, it is as binding as if it were opposed. Hope you don’t mind if I borrow this (with due credit to your goodself, of course).
I know that there was no opposition to this default, but still, why make a ruling that is expressly contrary to a decision reached by the appellate court that presides over your court only a few weeks before hand? I.e. Quality spy serve v auto one, 2011nyslipop 52281u (app term2nd, dec. 2011), not to mention, 2011 nyslipop 52062u, 2011 nyslipop 51862u, etc, etc, etc.
A litigant in the second department cannot rely on this motion court decision against a real opponent, of course. Unitrin is going down assuming no fault lasts long enough. Heck, this court walked all over itself again with their opinion in us life v blumenfeld, 2012 nyslipop 01103. Unitrin cannot even be reconciled with this stupid appellate division’s own law, much less chubb.
Supreme Court is of parallel authority as the Appellate Term. It is not like members of the Appellate Term do not get reversed, when they sit as Supreme Court Justices, by the Appellate Division. You also forget that the Court relied on a COA case that stands for the proposition that a condition precedent is just that: a condition precedent.
When you think the issue through, it is more complicated then just proclaiming: Westchester v. Lincoln versus Unitrin v. Bayshore.
1) so this supreme court then is violating westchester v Lincoln, app div authority.
2) the 30 day rule is statutory, ins law 5106a, which is the genisis of the rule of preclusion. If a court seeks to exempt most defenses from the rule of preclusion, the rule is rendered meaningless. In light of chubb, were the court of appeals determined no fault policy conditions were not exempt from the rule of preclusion, and in light of 5106a which creates the 30 day rule, that court is not obeying the rule of law. This is especially the case here where we have controlling appellate authority to the contrary in the presiding app div.
3) a condition precedent does not imbue a “coverage defense”. These regs were issued after chubb. Assuming the ins dept wanted an exemption from the rule of preclusion, these defenses would have been termed “coverage” defenses.
4) regs cannot trump 5106a 30-day rule in first instance, much less court of appeals expression of 30 day rule, ie rule of preclusion.
5) JT’s interpretation certaintly almost eliminates the ROP, there are 8 policy conditions, including amazingly broad ones that can be raised in almost any circumstance.
6) what is your basis for distinguishing unitrin from westchester?
7) what is the purpose in entiteling the carrier to lodge new defenses premised on facts they were aware of months and even years before hand? There is no rational purpose since the carrier is aware of policy condition breaches as they occure. The only purpose is a mechanism for insurers to commit claims processing fraud.
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