No-Fault [EUO]

Condition Precedent Preclusion 2–1

This will make its way to the Court of Appeals.

Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 2018 NY Slip Op 07850 [4th Dept. 2018]

We agree with defendant that, inasmuch as the defense based on nonappearance at an EUO is subject to the preclusion remedy, Nationwide was required to establish that it issued timely denials on that ground, and that Nationwide failed to meet its initial burden on the motion. The assertions in the affidavit of Nationwide’s claims specialist that Nationwide issued timely denial forms to defendant for nonappearance at the EUOs are conclusory and unsupported by any such denial forms; therefore, Nationwide did not establish as a matter of law that it issued timely and proper denials. Inasmuch as Nationwide “failed to establish [its] prima facie entitlement to judgment as a matter of law on the issue of [its] timely and proper denial of coverage, summary judgment should have been denied regardless of the sufficiency of . . . defendant’s opposition” (Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1052 [2d Dept 2015]).

As Unitrin Turns

EUOs must be timely.

A denial is required.

Denial must "sufficiently apprise the provider as to the reason for denial."

Unitrin Advantage Ins. Co. v All of NY, Inc., 2018 NY Slip Op 00810 [1st Dept. 2018]

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65—3.5(b) and 11 NYCRR 65—3.6(b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5(b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin's July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.

Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).

Two no-fault decisions from App. Term. 1st

Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51605(U) (App. Term, 1st 2010)

Defendant-insurer made a prima facie showing of entitlement to judgment as a matter of law dismissing the complaint by establishing that it mailed the notices requiring the principal of plaintiff medical services provider to appear for an examination under oath (EUO) and that the principal failed to appear for such an examination (see generally Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). In opposition, plaintiff failed to raise a triable issue, and its arguments in opposition to defendant's motion are unpersuasive. Defendant was not required to produce the applicable automobile insurance policy in order to establish that the mandatory personal injury endorsement included an EUO provision, since the subject claim arose out of an accident that occurred in 2007, at a time when the policy necessarily would have contained such a provision (see Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U]; cf. SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139[A], 2005 NY Slip Op 51842[U] [2005]). In any event, even assuming, arguendo, that the policy did not contain an EUO provision, the policy would be construed as though it did (see Insurance Law § 5103[h]). Moreover, contrary to Civil Court's conclusion, an EUO need not be scheduled within 30 days of defendant-insurer's receipt of the claim (see Eagle Surgical Supply Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 [2008]). Thus, defendant was entitled to summary judgment dismissing the complaint based upon plaintiff's failure to comply with a condition precedent to coverage (see generally Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18 [2005]).

Socrates Med. Health, P.C. v Motor Veh. Acc. Indem. Corp., 2010 NY Slip Op 51606(U) (App. Term, 1st 2010)

Plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing form had been mailed and received, and that payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). We note in this connection that the affidavit of plaintiff's employee attesting to plaintiff's standard office mailing procedures created a presumption of mailing of the subject claim, and, in any event, defendant acknowledged receipt of the claim (see Fair Price Med. Supply Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]). In opposition, defendant, which bore the burden of proving its lack of coverage defense (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]), failed to raise a triable issue on this point, since it offered no competent evidence showing that the plaintiff's assignor's loss arose from the use or operation of an uninsured motor vehicle (see Insurance Law § 5221[b]).

We reject defendant's contention that, pursuant to Insurance Law § 5225, it is exempt from paying plaintiff "statutory interest, statutory attorneys' fees and costs," since the plain language of that statute only exempts defendant from paying certain "taxes and fees" imposed by state and local governments. Defendant's remaining contentions are unpreserved for appellate review, and, in any event, are without merit.

In the MVAIC case, the § 5225 argument was absolute nonsense. In a sort of related note, I'm looking for the case that says MVAIC gets an automatic stay on appeals.

No-Fault with a tiny tiiiiiny tap of CPLR

caddyshack

CPLR R. 2214 Motion papers; service; time

CPLR R. 4518 Business records

22 NYCRR § 208.17 Notice of trial where all parties appear by attorney.

22 NYCRR § 208.4 Papers filed in court; index number; form; label.

CPLR R. 2106 Affirmation of truth of statement by attorney, physician, osteopath or dentis

CPLR § 3123 Admissions as to matters of fact, papers, documents and photographs

A relative ton of no- fault decisions came out today from the Appellate Term, Second Department. Again, I'm not posting them because you care, but because It's easy for me to find cases when I post them. For serious discussion, head over to JT and NFP.

There are, however, some interesting procedural nuances in the decisions, making them almost relevant here.

PEERS

Stephen Fealy, M.D., P.C. v State Farm Mut. Auto Ins. Co., 2010 NY Slip Op 51442(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

We note, at the outset, that plaintiff's "Supplemental Affirmation in Opposition" is, in reality, a sur-reply, for the submission of which no showing of "good cause" had been made and which should not have been considered by the Civil Court and has not been reviewed on this appeal (see CPLR 2214 [c]; McMullin v Walker, 68 AD3d 943, 944 [2009]; Graffeo v Paciello, [*2]46 AD3d 613, 615 [2007]; Flores v Stankiewicz, 35 AD3d 804, 805 [2006]; Severino v Classic Collision, 280 AD2d 463 [2001]).

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 (Muscatello v City of New York, 215 AD2d 463 [1995]; see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). "It is axiomatic that summary judgment requires issue-finding rather than issue-determination and that resolution of issues of credibility is not appropriate" (Greco v Posillico, 290 AD2d 532, 532 [2002] [citation omitted]). The court, on a motion for summary judgment, should not determine issues of credibility or the probability of success on the merits, but should only determine whether there is a triable issue of fact (Venetal v City of New York, 21 AD3d 1087 [2005]; Greco, 290 AD2d 532). The existence of triable issues of fact precludes a finding of a prima facie entitlement to judgment as a matter of law (Wilson-Toby v Bushkin, 72 AD3d 810 [2010]; see Brown v Outback Steakhouse, 39 AD3d 450, 451 [2007]; Gray v South Nassau Communities Hosp., 245 AD2d 337 [1997]; Muscatello, 215 AD2d at 464).

Although defendant's papers established, prima facie, based on objective medical evidence, that the assignor's injuries did not arise from the accident, we find that the affirmation in opposition, written by Dr. Fealy, the surgeon who actually performed the procedure on the assignor, read in conjunction with the other medical and hospital reports indicating that the assignor had complained of left knee pain within days of the accident, is sufficient to raise an issue of fact that must be resolved at trial.

Read JT's comments.

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co., 2010 NY Slip Op 51467(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

In support of its motion for summary judgment, defendant annexed to its papers an affirmed peer review report, which found the MRIs in question to be medically unnecessary. However, also annexed to the moving papers were defendant's independent medical examination report, which found one of the MRIs to be medically necessary, and other reports that contradicted facts set forth in the peer review report. Since defendant's moving papers are contradictory as to whether there was a lack of medical necessity for the services at issue, defendant failed to establish its prima facie entitlement to summary judgment as a matter of law (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant's motion was properly denied (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

There is a Golia dissent.

Mega Supply & Billing, Inc. v Larendon Natl. Ins. Co., 2010 NY Slip Op 51452(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR R. 3212(f)

VERIFICATION

Eagle Surgical Supply, Inc. v Travelers Indem. Co., 2010 NY Slip Op 51456(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Although defendant demonstrated that it had timely requested verification of the claim (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), defendant failed to establish that plaintiff did not provide the requested verification. Defendant's litigation examiner did not even allege that the requested verification was outstanding, and defendant's attorney failed to demonstrate that she had personal knowledge to support her assertion of defendant's non-receipt of such documents (see Warrington v Ryder Truck Rental, Inc., 35 AD3d 455, 456 [2006]; Feratovic v Lun Wah, Inc., 284 AD2d 368, 368 [2001]; V.S. Med. Servs., P.C. v New York Cent. Mut. Ins., 20 Misc 3d 134[A], 2008 NY Slip Op 51473[U] [App Term, 2d & 11th Jud Dists 2008]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

There is a Golia "atta boy" at the end.

Total Family Chiropractic v Mercury Cas. Co., 2010 NY Slip Op 51470(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010).

In an attempt to establish that the time period in which it had to pay or deny the claims was tolled due to outstanding verification requests, defendant relied upon spreadsheets annexed to the affidavit of its claim representative. However, because the claim representative did not establish that the spreadsheets constituted evidence in admissible form (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]), defendant has not shown that it made timely verification requests.

While defendant has failed to demonstrate that it is not precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), in any event, defendant is not precluded from raising the defense of fraudulent procurement of the insurance policy (see Matter of Insurance Co. of N. Am. v Kaplun, 274 AD2d 293 [2000]; A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). The certified transcripts of plaintiff's assignors' examinations under oath, annexed to defendant's motion papers, support defendant's assertion that the assignors' testimony at an examination before trial would be material and necessary to the defense of fraudulent procurement of an insurance policy (see CPLR 3101 [a]). Since plaintiff served the notice of trial two weeks after defendant served its answer and it is uncontroverted that defendant timely moved to vacate the notice of trial within 20 days of its receipt of same (see Uniform Rules for Civ Ct [22 NYCRR] § 208.17 [c]), the branch of defendant's motion seeking to strike the notice of trial is granted. However, as plaintiff's assignors are not directors, members or employees of plaintiff, defendant must subpoena them to compel their appearance at examinations before trial (see CPLR 3016 [b]; see also A.M. Med. Servs., P.C. v Allstate Inso Co., 14 Misc 3d 143[A], 2007 NY Slip Op 50384[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the judgment is reversed, the order entered February 13, 2009 is vacated, the branch of defendant's motion seeking summary judgment dismissing the complaint is granted to the extent of dismissing the complaint insofar as it sought to recover upon the claim form dated March 22, 2007, the branch of defendant's motionseeking to strike the notice of trial and to compel plaintiff's assignors to attend examinations before trial is granted to the extent of striking the notice of trial, plaintiff's cross motion for summary judgment is denied, and the matter is remitted to the Civil Court for all further proceedings.

So the NOT was stricken so that defendant could issue a non-party subpoena for an EBT. What happens when the non-party doesn't appear, assuming, of course, that the non-party doesn't appear. It would make sense for the Appellate Term to provide some guidance. Read JT's comments.

Almost forgot. There is an article in the NYSBA journal on non-party discovery by David Horowitz.

Points of Health Acupuncture, P.C. v Lancer Ins. Co., 2010 NY Slip Op 51455(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The "who cares if he doesnt know how he knows, he's a partner" exception to Fogel.

MVAIC (condition precedent or coverage or both)

Central Radiology Servs., P.C. v MVAIC, 2010 NY Slip Op 51454(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

Under the circumstances presented, the Civil Court should have considered the affidavit submitted by MVAIC's claim representative rather than sua sponte rejecting it due to a de minimis violation of Uniform Rules for the Civil Court (22 NYCRR) § 208.4. The submissions in support of MVAIC's motion for summary judgment made a prima facie showing that plaintiff's assignor had failed to timely file a notice of claim (see Insurance Law § 5208 [a]), and plaintiff failed to demonstrate that its assignor had timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). Consequently, defendant's motion for summary judgment should have been granted. Accordingly, the judgment is reversed, the order entered February 20, 2009 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

NOT NO-FAULT

Ferrara v De Ming Song, 2010 NY Slip Op 51472(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

The Civil Court granted defendant's motion, finding that defendant had made out a prima facie case and that, among other things, the affirmed reports of plaintiff's medical provider in Florida, submitted in opposition to defendant's motion, were not in admissible form, as the doctor was not licensed in the State of New York and, thus, was not authorized to execute an affirmation under CPLR 2106. The court noted, however, that had the reports been in admissible form, they would have been sufficient to demonstrate a serious injury.

Plaintiff thereafter moved for leave to renew defendant's motion and, upon renewal, to deny defendant's motion for summary judgment on the ground that triable issues of fact exist. In support of the motion, plaintiff submitted an affidavit from his Florida medical provider, sworn to before a notary public commissioned by the State of Florida, and resubmitted the provider's reports. The Civil Court granted plaintiff's motion for leave to renew and, upon renewal, denied defendant's motion for summary judgment on the condition that plaintiff's attorneys pay the sum of $100 to defendant's attorneys as costs, and the sum of $100 to the New York State Lawyers Fund for Client Protection. This appeal by defendant ensued in which the sole issue raised is that the Civil Court erred in granting plaintiff leave to renew.

Contrary to defendant's contention, the Civil Court did not improvidently exercise its discretion in granting the branch of plaintiff's motion seeking leave to renew, thereby allowing plaintiff the opportunity to submit its papers in proper form (see CPLR 2221 [e]; Arkin v Resnick, 68 AD3d 692 [2009]; Simpson v Tommy Hilfiger U.S.A., Inc., 48 AD3d 389 [2008]; Smith v Allstate Ins. Co., 38 AD3d 522 [2007]; Joseph v Joseph, 24 Misc 3d 141[A], 2009 NY Slip Op 51719[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Shaw v Looking Glass [*2]Assoc., LP, 8 AD3d 100 [2004]; Acosta v Rubin, 2 AD3d 657 [2003]; Ramos v Dekhtyar, 301 AD2d 428 [2003]). We note that defendant has raised no objection to the form of plaintiff's resubmitted papers.

Nicholas Cabrini, Inc. v Hagenbart, 2010 NY Slip Op 51443(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2010)

CPLR 3123 (a) requires a party to respond to a notice to admit within 20 days of service of the notice "or within such further time as the court may allow," and further provides that "the party to whom the request is directed [must] serve[] upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail why he cannot truthfully either admit or deny those matters" (emphasis added).

After reviewing defendants' response to plaintiff's notice to admit, wherein defendants explained why they could not either admit or deny the first item in plaintiff's notice to admit and denied the other two items in the notice, we find that the Civil Court properly determined that defendants' response was not so evasive as to be a nullity.

Turning to the timeliness of defendants' response to the notice, in Alford v Progressive Equity Funding Corp. (144 AD2d 756 [1988]), a case analogous to the instant case, the plaintiffs moved for summary judgment on December 2, 1987, based on the defendants' failure to respond to the plaintiffs' notice to admit, which had been served on November 5, 1987. On December 7, 1987, the defendants served a response to the plaintiffs' notice to admit. The Supreme Court denied the plaintiffs' motion for summary judgment, and, on appeal, the Appellate Division, Third Department, held that the Supreme Court had properly exercised its discretionary power to extend the time within which the defendants had to respond to the plaintiffs' notice to admit. The Appellate Division further held that since the defendants had not admitted all of the material facts at issue, the Supreme Court had properly denied the plaintiffs' motion for summary judgment.

Similarly, defendants in the case at bar were 15 days late in serving their response to plaintiff's notice to admit. Thus, the Civil Court did not improvidently exercise its discretion in extending the time within which defendants had to respond to the notice. Since defendants have not admitted all of the material facts at issue, the Civil Court properly denied the branch of plaintiff's motion which sought summary judgment (see id.). Accordingly, the order, insofar as appealed from, is affirmed.

What, no cite to Dan Med? Bajaj? I'm disappointed. If any of you want to read further on the use of NTAs in no-fault. I co-authored an article in the NYLJ on the issue with Dave Barshay, the new author of NFP, and while the AT has not seen fit to cite to it, the Appellate Division has. Click here to get all the links and what not.