Am. Transit Ins. Co. v. Longevity Med. Supply, Inc.

• Decision Date: 15 September 2015
• Docket Number: 14682, 154337/13.
• Parties: AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant, v. LONGEVITY MEDICAL SUPPLY, INC., Defendant–Respondent, Jonathan Estrella, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

131 A.D.3d 841

17 N.Y.S.3d 1

2015 N.Y. Slip Op. 06761

AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant

v. LONGEVITY MEDICAL SUPPLY, INC., Defendant–RespondentJonathan Estrella, et al., Defendants.

14682, 154337/13.

Supreme Court, Appellate Division, First Department, New York.

Sept. 15, 2015.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Melissa Beatancourt, P.C., Brooklyn (Melissa Beatancourt of counsel), for respondent.

FRIEDMAN, J.P., RENWICK, MOSKOWITZ, RICHTER, CLARK, JJ.

Opinion

Order, Supreme Court, New York County (Debra A. James, J.), entered October 15, 2014, which, to the extent appealed from, denied plaintiff's motion for summary judgment declaring that it is not obligated to provide no-fault coverage to defendant Longevity Medical Supply, Inc. in connection with the October 7, 2012 motor vehicle accident, affirmed, without costs.

Plaintiff failed to establish prima facie that it was entitled to deny defendant Longevity Medical Supply, Inc.'s claim because Longevity's assignor, defendant Estrella, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No–Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v. Perez, 112 A.D.3d 483, 976 N.Y.S.2d 378 [1st Dept.2013] ). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Estrella did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65–3.5(d), which prescribes a 30–calendar–day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v. Travelers Home & Mar. Ins. Co., 36 Misc.3d 152[A] 2012 N.Y. Slip Op. 51707[U], 2012 WL 3887524 [App.Term, 2d Dept.2012] ; American Tr. Ins. Co. v. Jorge, 2014 N.Y. Slip Op. 30720[U], 2014 WL 1262582 [Sup.Ct., N.Y. County 2014] ).

Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65–3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v. Saw Mill Riv., LLC, 122 A.D.3d 896, 900–901, 998 N.Y.S.2d 60 [2nd Dept.2014] ; Hawthorne v. City of New York, 44 A.D.3d 544, 844 N.Y.S.2d 35 [2007] ; Scansarole v. Madison Sq. Garden, L.P., 33 A.D.3d 517, 827 N.Y.S.2d 1 [1st Dept.2006] ).

The dissent mistakenly posits that the majority failed to “cite a single authority for supporting [our] position” that plaintiff was required to submit proof of the timely notice for the IMEs in order to make a prima facie showing of entitlement to judgment as a matter of law. In Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, we explicitly held that “[p]laintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants' assignors did not appear” (82 A.D.3d at 560, 918 N.Y.S.2d 473 [emphasis added] ).

Likewise, the dissent points out that “the majority negates the precedential authority of Lucas ...” Contrary to the dissent's assertion, Lucas does not support its position since in Lucas, the defendant did not argue on appeal that the plaintiff failed to satisfy its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations. Here, in contrast, the issue of whether plaintiff met its burden of showing compliance with the applicable time frame was fully briefed on appeal.

Also, contrary to the dissent's suggestion, defendant was not in the best position to determine whether plaintiff complied with the 30–day requirement. As the dissent acknowledges, the 30–day period with which the IME was supposed to be scheduled is measured from the date on which plaintiff received the prescribed verification form from defendant. Yet, no evidence in affidavit form or any other form has been submitted by plaintiff indicating the date upon which plaintiff received the verification from defendant. Thus, contrary to the dissent's assertion, it does not “appear[ ] from the record that plaintiff in fact may well have complied with the requirement in question.”

Finally, the dissent argues that a plaintiff's failure to comply with the 30–day time frame for the scheduling of the IME does not affect a plaintiff's right to deny a claim for services rendered to the insured after the date of the IME for which the insured failed to appear. This contention, however, was never raised by plaintiff in its appellate brief and we therefore decline to consider it.

All concur except FRIEDMAN J.P. who dissents in a memorandum as follows:

FRIEDMAN, J.P. (dissenting).

I respectfully dissent. The point on which the majority affirms the denial of summary judgment to the plaintiff insurer—the absence of evidence as to whether the independent medical examinations (IMEs) for which the insured injured person failed to appear were scheduled within the 30–day time frame contemplated by Insurance Department Regulations (11 NYCRR) § 65–3.5(d) —was not raised by the defendant medical vendor (Longevity) in its opposition to plaintiff's motion for summary judgment. Rather, Longevity raised the point for the first time in its brief opposing plaintiff's appeal. Had Longevity raised this issue in opposing the motion, plaintiff may well have been able to establish compliance with the regulation in question.

It is undisputed that plaintiff has established that it sent notices of two successive IMEs to the insured and that the insured failed to appear for either IME—a breach of a condition precedent under the policy (as set forth by the mandatory personal injury protection endorsement prescribed by 11 NYCRR 65–1.1 [d] ) that ordinarily would vitiate coverage for the loss (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] ). Notwithstanding the undisputed failure of the insured (Longevity's assignor) to appear for the scheduled IMEs, Longevity argues—as previously noted, for the first time on appeal—that plaintiff is not entitled to summary judgment because the record does not affirmatively establish that it complied with a regulation addressing the timing of the first IME. The subject regulation, 11 NYCRR 65–3.5(d), provides that an insurer wishing to require an IME as additional verification of a claim for motor vehicle no-fault benefits after receipt of the initial prescribed verification “shall schedule the examination to be held within 30 calendar days from the date of receipt of the prescribed verification forms.”¹

In pertinent part, 11 NYCRR 65–3.5 (“Claim procedure”) provides:

“(a) Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits (NYS form NF–2) or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claim.

“(b) Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms ...“(c) The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.

“(d) 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.”

In this case, the accident occurred on October 7, 2012; the application for benefits was submitted on or about October 29, 2012; the first IME notice was sent out on November 21, 2012 for an IME to be held on December 12, 2012; and (after the insured failed to appear for the December 12 IME) the second IME notice was sent out on December 13, 2012 for an IME to be held on January 2, 2013 (for which the insured also failed to appear). The record does not reflect when plaintiff received the “prescribed verification forms,” but those forms must have been received some time after October 29, 2012, the date of the insured's initial application for benefits. Thus, there is no reason to assume that the scheduling of the first IME on December 12, 2012, was not within 30 days of plaintiff's receipt of the prescribed verification forms. On the contrary, from the aforementioned dates that do appear in the record, it seems highly likely that the first IME was scheduled to be conducted within the 30–day time frame set forth in the regulation.² If Longevity wished to oppose the summary judgment on the ground that the IMEs were not scheduled to take place within 30 days from plaintiff's receipt of the prescribed verification forms, it should have raised the issue before the motion court, as the provider did in National Liability & Fire Ins. Co. v. Tam Med. Supply Corp.,

Appeal No. 15234, 131 A.D.3d 851, 16 N.Y.S.3d 457 2015 WL 5331241 (1st Dept.2015), an appeal...