Bath Ortho Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 50271(U)(App. Term 1st Dept. 2012)
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 properly mailed the notices for an examination under oath (EUO) to plaintiff’s assignor, and that the assignor failed to appear (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 , lv denied 17 NY3d 705 ; cf. Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ).
A cf to Fogel and a nod to the proposition that correspondence sent to an assignor and an assignor only is sufficient to apply the rule of Unitrin.
More importantly, EUO’s apply to Unitrin.
Tangalin v MTA Long Is. Bus, 2012 NY Slip Op 01239 (2d Dept. 2012)
“We agree with the appellants’ contention that the Supreme Court erroneously treated their motion to vacate so much of an order as directed them to produce certain portions of the Bus Operator Training Participant’s Guide of the defendant MTA Long Island Bus (hereinafter the Guide) as one for leave to reargue. Moreover, since that order was not appealable as of right because it did not decide a motion made on notice, it was procedurally proper for the appellant to move pursuant to CPLR 2221(a) to vacate the disputed portion of the order (see Mega Constr. Corp. v Benson Park Assoc., LLC, 60 AD3d 826, 827; Koczen v VMR Corp., 300 AD2d 285; Pagan v Penthouse Mfg. Co., 121 AD2d 374).”
Hernandez v Tepan, 2012 NY Slip Op 01211 (2d Dept. 2012)
“As the defendant correctly contends, the police accident report submitted by the plaintiff in support of the plaintiff’s motion for summary judgment on the issue of liability constituted inadmissible hearsay, since the report was not certified as a business record (see CPLR 4518[a]; Johnson v Lutz, 253 NY 124, 128; Bailey v Reid, 82 AD3d 809, 810; see also Noakes v Rosa, 54 AD3d 317, 318), and there is no indication that some other hearsay exception applied to the statements contained in the report”
This case is a hard read. It says an uncertified police report is hearsay, yet cites to 4518(a) and not 4518(c). The cases that are cited deal with, in essence, Hochauser issues.
Second Med., P.C. v GEICO, 2012 NY Slip Op 50236(U)(App. Term 2d Dept. 2012)
When I saw Second Medical, I remembered that now Supreme Court Justice Peter P. Sweeney commented about the inability of this entity to meet its prima facie burden at trial (Second Medical, P.C. v. Auto One Ins. Co., 20 Misc.3d 291 [Civ. Ct. Kings Co. 2008]). Second Medical was cited in the Appellate Term case (Carothers v. GEICO Indem. Co., 24 Misc.3d 19 [App. Term 2d Dept. 2009]), which was latter affirmed in (Matter of Carothers v. Geico., 79 A.D.3d 864 [2d Dept. 2010]), one of the bigger prima facie cases of this decade.
Some things never change and I guess some people never learn. On any other week, this case would get the Mr. Five Boro award for appellate excellence, but Second Medical gets a pass because Ms. Ava took it this week. Close call though.
Ava Acupuncture, P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 50234(U)(App. Term 2d Dept. 2012)
“In this case, while the delay was lengthy, plaintiff does not deny that discovery and trial postponements intervened to delay the action and for reasons unrelated to the motion’s merits. Since the defenses address the effect of contractual terms on recovery and since plaintiff does not deny defendant’s claim that its NF-10 forms invoked a deductible, the claim of surprise or prejudice so great as to warrant the motion’s denial is not established.”
“Since plaintiff as assignee stands in the shoes of the insured, plaintiff cannot claim ignorance of the terms of the very contract under which it alleges entitlement to no-fault benefits compensation”
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 ; 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 ). 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”
Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co., 2012 NY Slip Op 50226(U)(App. Term 1st Dept. 2012)
Extension of Pan Medical
I always said Praetorian mean business. I truthfully have never seen a company that had its ducks in a row like these guys. This case goes to show one thing. If you have good paper and solid procedures in place, the plaintiffs should really have something to fear.
“ The medical affidavit submitted by plaintiff contained no indication that the generic conclusions reached by the affiant — a physician whose field of practice is unspecified — were based upon either a medical examination of plaintiff or a review of plaintiff’s medical records.  Further, plaintiff’s affiant did not refer to, let alone rebut, the contrary findings made by defendant’s peer reviewer”
I recall the Second Department saying that it just did not matter what specialty the doctor was. It is nice to see Pan Medical (which cited to CPT Medical) get the expansion and context it deserves. This and ENKO have started to define, albeit piecemeal, the parameters of CPT and Pan.
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
AMERICAN TRANSIT INSURANCE COMPANY,
BARON LEA, INC.,
BEST TOUCH, P.T., P.C.
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.
Papers Read on this Motion:
Plaintiff’s Notice of Motion 01
MICHELE M. WOODARD
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.
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 ). 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.
February 3, 2012
Mineola, N.Y. 11501
HON. MICHELE M. WOODARD
JPMorgan Chase Bank, N.A. v Bauer, 2012 NY Slip Op 00932 (2d Dept. 2012)
“[S]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature,” and Bauer’s “affidavit was alone inadequate to raise an issue of fact necessitating a trial” (Banco Popular N.A. v Victory Taxi Mgt., 1 NY3d 381, 384; see [*2]Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574).”
Upper E. Side Surgical, PLLC v State Farm Ins. Co., 2012 NY Slip Op 50184(U)(Dis. Ct. Nassau Co. 2012)
“Plaintiff does assert, however, that there is no requirement in the Regulations that NYS Public Health Law Article 28 licensure is a prerequisite to No-Fault Claims reimbursement. The current applicable law, New York’s Office Based Surgery (OBS) Law passed on July 14, 2007 (Public Health Law § 230-d), requires merely that an office-based surgery facility must obtain and maintain full accredited status by a national-recognized accrediting agency approved by the Commissioner of Health. As to proof of same, Plaintiff provides as its Exhibit A, its certification that it was accredited from 02/27/2010 to 02/27/2011 by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), which included the time period of this claim. Under PHL § 230-d, AAAASF, is one of three accreditation entities which has been approved by the Commissioner. No claim is made by the Defendant that the Plaintiff provider is not in full compliance with the required registrations, certifications or accreditations to conduct its office-based surgery business under the applicable laws of New York, particularly PHL § 230-d.”
“This Court finds that the Plaintiff is not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the “facility fee” schedule in accordance with The Products of Ambulatory Surgery (PAS) classification system because it is not an Art. 28 facility. Plaintiff is, however, entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor”
“The next question for the Court to answer is, “What is the rate of reimbursement?”
“Accordingly, inasmuch as no proof has been submitted that the Superintendent of Insurance has adopted or established a fee schedule applicable to the plaintiff/provider, a question of facts exists as to the amount of the charge for services. Moreover, no proof has been submitted as to the local geographic prevailing fee, which plaintiff provider would be entitled to be reimbursed for its services. While in certain instances, the workers’ compensation fee schedules have been utilized to established local prevailing fees, such is not the case with regard to a facility fee for office based surgery facilities, at least as far as the Court can discern. Thus, a trial of the issue is necessary.”
My answer is that 68.5(b) is satisfied through finding what a nearby Article 28 facility would be compensated and pegging that amount to the compensation that would be due and owing to an accredited office based surgical center. So, a trial is probably not needed since Plaintiff would be entitled to the fee an Article 28 near its location is receiving. Another way of saying this is that the case should settle for the amount that would be paid to a nearby Article 28 facility.