Am. Transit Ins. Co. v. Jorge
| Decision Date | 28 February 2014 |
| Docket Number | Index No. 110050/2011 |
| Citation | 2014 NY Slip Op 30720 |
| Court | New York Supreme Court |
| Parties | AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff v. DENNY JORGE, MICHELL PALOMEQUE, ADVANCED MEDICAL DIAGNOSTICS OF QUEENS, P.C., AFFORDABLE CHIROPRACTIC CARE P.C., ALFA MEDICAL SUPPLIES, INC., ATLANTIC CHIROPRACTIC, P.C., HILLSIDE OPEN MRI P.C., I & E MASSAGE THERAPY, P.C., ALEX KHAIT, D.C., BILGIN KERISLI, D.C., KERISLI CHIROPRACTIC, P.C., NATIONAL MEDICAL & SURGICAL SUPPLY, INC., YONGMING MAO, MD, MARCOS PHYSICAL THERAPY, P.C., MOBILITY EXPERTS MEDICAL, P.C., MICHAEL M. MORGAN, PT, PERFECT POINT ACUPUNCTURE, P.C., ROM MEDICAL, P.C., SAS MEDICAL, P.C., SMQ MEDICAL, SUCCESS REHAB, PT, PC, KAMAL AZIZ TADROS, MD, ULTIMATE HEALTH PRODUCTS INC., URBAN WELL ACUPUNCTURE, P.C., YEVGENIY VOLOSHCHUK, LAC, WARREN MEDICAL, P.C., and WEST COAST, INC., Defendants |
For Plaintiff
Giovanna Tuttolomondo Esq.
Law Offices of James F. Sullivan, P.C.
Oleg Rybak Esq.
I. BACKGROUND
Plaintiff moves for summary judgment against defendant Ultimate Health Products Inc., C.P.L.R. § 3212(b), declaring thatplaintiff owes no duty to compensate this defendant pursuant to New York Insurance Law § 5103 for medical expenses incurred from a collision November 21, 2010, involving defendants Jorge and Palomeque and a motor vehicle for which plaintiff issued an insurance policy. C.P.L.R. § 3001. For the reasons explained below, the court denies plaintiff's motion.
Plaintiff bases its motion on the nonappearances of Jorge and Palomeque for medical examinations, to which plaintiff is entitled under the policy. See 11 N.Y.C.R.R. § 65-1.1. The policy's mandatory personal injury protection provisions condition the insurer's payment of a claim on "full compliance with the terms of this coverage." Id. Upon the insurer's request; "The eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require." Id.
As plaintiff's claim representative handling Jorge's and Palomeque's applications, Iris Hernandez, attests, defendant Ultimate Health Products submitted claims that Jorge or Palomeque assigned to it for reimbursement of medical expenses incurred from the November 2010 collision. Aff. of Giovanna Tuttolomondo Ex. D, V. Compl. ¶ 15. The Verified Answer of Ultimate Health Products also "admits that it provided medically necessary supplies to claimants [Jorge and Palomeque] and properly and timely submitted claim forms, verification of treatment forms and other documents to Plaintiff." Id. Ex. A, V. Answer ¶ 42. Thisdeclaratory judgment action thus presents an actual controversy regarding noncompliance by Jorge and Palomeque with the terms of coverage that would entitle plaintiff to deny or disclaim coverage of Ultimate Health Products' claims. C.P.L.R. § 3001; Megibow v. Condominium Bd. of Kips Bay Towers Condominium, 38 A.D.3d 265, 266 (1st Dep't 2007); Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 A.D.3d 253 (1st Dep't 2006); United States Fire Ins. Co. v. American Home Assur. Co., 19 A.D.3d 191, 192 (1st Dep't 2005).
II. PLAINTIFF'S SCHEDULING OF THE EXAMINATIONS
The parties do not dispute that National Claim Evaluations, Inc., a corporation separate from plaintiff, scheduled the examinations of Jorge and Palomeque. Where a corporation, without the required licensure, hires physicians to conduct medical examinations and shares fees with those physicians, that-separate entity engages in the illegal practice of medicine in conducting the medical examinations. N.Y. Educ. Law § 6512(1); Accident Claims Determination Corp. v. Durst, 224 A.D.2d 343 (1st Dep't 1996); Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 23 A.D.3d 522, 523 (2d Dep't 2005). Defendant Ultimate Health Products seeks to defeat plaintiff's motion for summary judgment on the theory that, if plaintiff insurer contracted with such an illegal enterprise to perform medical examinations for plaintiff, it would preclude the insurer's reliance on those illegal examinations. Setting aside whether such a defense, which wouldimpute an offense by plaintiff's independent contractor to plaintiff, ever may be viable, Ultimate Health Products has not raised even a suggestion that National Claim Evaluations performed any service for plaintiff other than scheduling examinations. No evidence suggests that National Claim Evaluations actually was involved in and derived revenue from the examinations themselves.
Without showing even that much, Ultimate Health Products presents no basis to entitle Ultimate Health Products to disclosure concerning National Claim Evaluations' business practices, to support a defense that the scheduled examinations plaintiff claims Jorge and Palomeque failed to comply with were illegal in the first instance. C.P.L.R. § 3212(f); Harlem Real Estate LLC v. New York City Economic Dev. Corp., 82 A.D.3d 562, 563 (1st Dep't 2011); Kent v. 534 East 11th Street, 80 A.D.3d 106, 114 (1st Dep't 2010); Griffin v. Pennoyer, 49 A.D.3d 341 (1st Dep't 2008); Global Mins. & Metal Corp. v. Holme, 35 A.D.3d 93, 103 (1st Dep't 2006). Ultimate Health Products simply has not raised the "doubt" regarding the legality of the examinations scheduled for Jorge or Palomeque that would entitle Ultimate Health Products to disclosure to support a defense of illegality before the court determines whether to grant plaintiff summary judgment. Deutsche Bank Sec., Inc. v. Montana Bd. of Invs., 7 N.Y.3d 65, 74 n.3 (2006). See C.P.L.R. § 3212 (f); W & W Glass Sys., Inc. v. Admiral Ins. Co., 91 A.D.3d 530, 531 (1st Dep't 2012); Barnes-Joseph v. Smith, 73 A.D.3d 494, 495 (1st Dep't2010); MAP Mar. Ltd. v. China Constr. Bank Corp., 70 A.D.3d 404, 405 (1st Dep't 2010); Brown v. Bauman, 42 A.D.3d 390, 393 (1st Dep't 2007). In fact, as discussed below, the record does not even indicate that National Claim Evaluations hired a physician to engage in the practice of medicine in conducting the examination of Jorge or Palomeque, so that National Claim Evaluations might possibly have shared fees with a physician or engaged in the illegal practice of medicine in conducting a medical examination. See N.Y. Educ. Law § 6512(1); Accident Claims Determination Corp. v. Durst, 224 A.D.2d 343; Glassman v. ProHealth Ambulatory Surgery Ctr., Inc., 23 A.D.3d at 523.
Plaintiff also must request medical examinations according to the procedures required by the applicable regulations under Insurance Law Article 51. Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d 556, 562-63 (2008); Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 317-18 (2007); Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560 (1st Dep't 2011). As set forth above, upon the insurer's request: "The eligible injured person shall submit to medical examination by physicians." 11 N.Y.C.R.R. § 65-1.1 (emphases added).
National Claim Evaluations' scheduling coordinator Ronni McLaughlin mailed requests for "independent medical examinations," albeit admittedly on plaintiff' s behalf, Tuttolomondo Aff. Ex. E ¶ 2, to Jorge and Palomeque "with Dr.Ayman Hadhoud." Id. Ex. E ¶ 10, at 2-3. Nowhere, however, does either McLaughlin's affidavit or Dr. Hadhoud's own affidavit indicate that Dr. Hadhoud is a physician or a doctor of medicine or that the examination was a type that would have been performed only by a physician. The requests themselves do refer to an "Exam Type: PMR/ACUP," but it is not entirely decipherable and still does not demonstrate the type of examination that would have been performed. Id. Ex. E, at 5-10. Therefore plaintiff may not rely on Jorge's or Palomeque's noncompliance with scheduled medical examinations when plaintiff has not even shown that the scheduled examinations were medical examinations by a physician as the applicable rules require. Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 562-63; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 317-18; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d at 560.
Plaintiff similarly must request medical examinations according to the timeframes required by the applicable regulations. Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 562-63; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 317-18; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d at 560. Upon receipt of prescribed verification forms to establish claims, plaintiff was required to request "any additional verification" needed to establish the claims within 15days. 11 N.Y.C.R.R. § 65-3.5(b); Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 563. "If the additional verification required by the insurer is a medical examination, the insurer shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms." 11 N.Y.C.R.R. § 65-3.5(d). When plaintiff sought additional verification, the 30 days within which plaintiff was to pay or deny the claims after receipt of the original verification was tolled until plaintiff received the information requested. 11 N.Y.C.R.R. § 65-3.8(a)(1); Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 563; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 317.
11 N.Y.C.R.R. § 65-3.5(d) unambiguously defines "a medical examination" as "additional verification required by the insurer." Although plaintiff's attorney, without personal knowledge, insists that the examinations of Jorge and Palomeque were not necessarily...
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