Am. Transit Ins. Co. v. Denis
| Decision Date | 07 February 2014 |
| Docket Number | Index No. 111117/2011 |
| Citation | 2014 NY Slip Op 30385 |
| Court | New York Supreme Court |
| Parties | AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff v. SAMUEL DENIS, BEDFORD MEDICAL CARE, P.C., FEMA MEDICAL SUPPLY INC., MAGIC TOUCH PHYSICAL THERAPY, P.C., SP ORTHOTIC SURGICAL & MEDICAL SUPPLY, INC., and SUPERIOR HEALTH CHIROPRACTIC PC, 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 SP Orthotic Medical & Surgical Supply, Inc. (SP), C.P.L.R. § 3212(b), declaring that plaintiff owes no duty to compensate this defendant pursuant to New York Insurance Law § 5103 for medical expenses incurred from a collision June 10, 2009, involving defendant Denis 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 Denis's nonappearance for a medical examination, 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 and supervisor handling Denis's application, Cheryl Glaze, attests, defendant SP submitted claims that Denis assigned to it for reimbursement of medical expenses incurred from the June 2009 collision. Aff. of Giovanna Tuttolomondo Ex. E ¶ 17. This declaratory judgment action thus presents an actual controversy regarding Denis's noncompliance with the terms of coverage that would entitle plaintiff to deny or disclaim coverage of SP's claims. C.P.L.R. § 3001; Meqibow 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 DENIS'S MEDICAL EXAMINATION
The parties do not dispute that Independent Physical Exam Referrals, Inc., a corporation separate from plaintiff, scheduledDenis's medical examination. 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 SP 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 would impute an offense by plaintiff's independent contractor to plaintiff, ever may be viable, SP has not raised even a suggestion that Independent Physical Exam Referrals performed any service for plaintiff other than scheduling medical examinations and actually was involved in and derived revenue from the examinations themselves.
Without showing even that much, SP presents no basis to entitle SP to disclosure concerning Independent Physical Exam Referrals' business practices, to support a defense that the scheduled examination plaintiff claims Denis failed to comply with was 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, 49A.D.3d 341 (1st Dep't 2008); Global Mins. & Metal Corp. v. Holme, 35 A.D.3d 93, 103 (1st Dep't 2006). SP simply has not raised the "doubt" regarding the legality of the examination scheduled for Denis that would entitle SP 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't 2010); 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).
Plaintiff also must request a medical examination according to the procedures and timeframes 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). Upon receipt of a prescribed verification form to establish a claim, plaintiff was required to request "any additional verification" needed to establish the claim within 15 days. 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 claim 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 of this claim, points out that Denis's medical examination was not necessarily requested in response to a claim by a specific medical care provider such as SP, plaintiff does not present any admissible evidence of when plaintiff received any provider's claim or Denis's application. Coleman v. Maclas, 61 A.D.3d 569 (1st Dep't 2009); 2084-2086 BPE Assoc. V. State of N.Y. Div. of Hous. & Community Renewal, 15 A.D.3d 288, 289 (1st Dep't 2005); Figueroa v. Luna, 281 A.D.2d 204, 205 (1st Dep't 2001). See Rodriguez v. Board of Educ. of City of N.Y., 107 A.D.3d 651, 652 (1st Dep't 2013); Beloff v. Gerges, 80 A.D.3d 460, 461 (1st Dep't 2011); Dorsey v. Les Sans Culottes, 43 A.D.3d 261 (1st Dep't 2007); Westchester Med. Ctr. v. Countrywide Ins. Co., 45 A.D.3d 676, 677 (2d Dep't 2007). Glaze attests only thatplaintiff received Denis's application dated June 26, 2009, not when plaintiff received the application, nor when plaintiff received any medical care provider's claim. Tuttolomondo Aff. Ex. E ¶ 12. The attached application, which she neither identifies nor authenticates, bears a stamp "RECEIVED JUL 2 2 009." Id. Ex. F at 3. See IRB-Brasil Resseguros S.A. v. Portobello Intl. Ltd., 84 A.D.3d 637, 638 (1st Dep't 2011); Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 526 (1st Dep't 2010); Coleman v. Maclas, 61 A.D.3d 569; Babikian v. Nikki Midtown, LLC, 60 A.D.3d 470, 471 (1st Dep't 2009). Even using this later date, however, Denis's medical examination was scheduled to be held August 10, 2009, more than "30 calendar days from the date of receipt of the prescribed verification forms," at least the only form for which the record reveals a date of receipt. 11 N.Y.C.R.R. § 65-3.5(d).
Although any one of Denis's medical care providers may have submitted a prescribed verification form to establish a claim well within 30 days before August 10, 2009, or afterward, plaintiff nowhere provides that evidence. Sound Shore Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 106 A.D.3d 157, 165 (2d Dep't 2013). Therefore plaintiff may not rely on Denis's noncompliance with an examination that is not shown to have been scheduled in compliance with the applicable rules. 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 PhysicalTherapy, PLLC, 82 A.D.3d at 560.
III. PLAINTIFF'S DENIAL OF SP'S CLAIM
Assuming plaintiff did receive a claim within 30 days before Denis's medical examination was scheduled or afterward, the pending examination then tolled the 30 days for plaintiff to deny claims and allowed it to deny SP's claim retroactively when Denis failed to comply with the coverage requirement to submit to the examination. 11 N.Y.C.R.R. § 65-3.8(a)(1) and (c); 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; American Tr. Ins. Co. v. Marte-Rosario, 111 A.D.3d 442 (1st Dep't 2013); Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d at 560. Nevertheless, once Denis failed to comply, plaintiff fails to show that it ever denied coverage or disclaimed liability for SP's claim.
The only instances when an insurer that fails ever to issue a denial or disclaimer later may raise...
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