Jiang Acupuncture, P.C. v. N.Y. Cent. Mut. Fire Ins. Co., Index No. CV-3161-20/SM

CourtNew York District Court
Writing for the CourtJames F. Matthews, J.
Citation73 Misc.3d 1206 (A),153 N.Y.S.3d 823 (Table)
Docket NumberIndex No. CV-3161-20/SM
Decision Date23 September 2021
Parties JIANG ACUPUNCTURE, P.C., a/a/o Marisol Torres, Plaintiff, v. NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant.

73 Misc.3d 1206 (A)
153 N.Y.S.3d 823 (Table)

JIANG ACUPUNCTURE, P.C., a/a/o Marisol Torres, Plaintiff,
v.
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Defendant.

Index No. CV-3161-20/SM

District Court, New York, Suffolk County, Fourth District.

Decided on September 23, 2021


James F. Matthews, J.

Upon the following papers numbered 1 to 16 read on this motion by defendant for summary judgment of dismissal by Notice of Motion/ Order to Show Cause and supporting papers 1,2,9 ; Notice of Cross Motion and supporting papers 10,11 ; Answering Affidavits and supporting papers 10,11 ; Replying Affidavits and supporting papers 15,16 ; Filed papers; Other exhibits: 3-8,12-14 ;(and after hearing counsel in support of and opposed to the motion), it is

ORDERED that the motion by defendant for summary judgment dismissing plaintiff's complaint, is denied, and plaintiff's cross-motion for summary judgment in the total sum of $6,947.81, is denied.

In this action by a medical provider to recover assigned first-party no-fault benefits for medical services rendered, consisting of ten (10) bills totaling $6,947.81, defendant insurer moves for summary judgment dismissing the complaint based upon assignor's failure to appear for orthopedic independent medical examinations ("IME's") on 08/14/2019, and then on 09/14/2019, not satisfying a condition precedent of its insurance policy (see 11 NYCRR 65-1.1 ), which defendant raised as a ninth affirmative defense in its amended verified Answer, thereby vitiating insurer's liability (see Stephan Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720 [2nd Dept 2006] ). Defendant asserts it denied each of the 10 claims premised on a breach of condition to coverage, which voided the policy ab-initio , resulting in no coverage to the no-fault claims retroactively dated to the date of the automobile accident of 04/25/2019 (see Unitron Advantage Ins. Co. v Bay Shore Physical Therapy, PLLC. , 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] ).

In opposition to the motion, plaintiff argues defendant failed to properly and timely schedule the orthopedic IME's pursuant to 11 NYCRR 65-3.5(d), which requires that a scheduled IME as additional verification of a claim, be scheduled to be held within 30 calendar days from the date of receipt of prescribed verification forms or claims (see W.H.O. Acupuncture, P.C. v Travelers Home & Marine Ins. Co. , 36 Misc 3d 152[A][2nd Dept, 2d, 11th & 13th Jud Dists 2012] ).

Plaintiff contends that defendant concedes (and admits) it received the first claim on 05/31/2019 as noted on defendant's NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 05/31/2019, or within 06/30/2019. However, defendant's scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also contends that defendant concedes (and admits) it received the second claim on 06/17/2019 as noted on defendant's NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 06/17/2019, or within 07/17/2019. However, defendant's scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff further contends that defendant concedes (and admits) it received the third claim on 07/03/2019 as noted on defendant's NF-10 Denial of Claim form, and should have scheduled its orthopedic IME within the next 30 days from 07/03/2019, or within 08/02/2019. However, defendant's scheduling letter for its orthopedic IME was dated 07/30/2019, with its first IME date set for 08/14/2019, which was untimely and improper.

Plaintiff also cross-moves for summary judgment in the sum of $6,947.81, asserting it timely submitted the 10 NF-3 Notice of Claim forms to defendant for this total, and payment is overdue. Plaintiff contends that defendant's NF-10 Denial of Claim forms for each of the 10 submitted claims, is prima facie proof of plaintiff's timely submission and defendant's receipt of each claim and that payment is overdue.

In opposition to plaintiff's cross-motion, defendant denies plaintiff's arguments in support, and raises the doctrine of res judicata as a defense to plaintiff's contentions, citing 2 civil decisions from the City of New York, a copy of each of which was provided by defendant to the Court:

1) LONGEVITY MEDICAL SUPPLY, INC., a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS. , Index No. 713404/20 (Civ Court, City of New York, Queens Cty, dated 6/9/2021 (Greenburg, J.), and

2) NORTH QUEENS SURGICAL CENTER, a/a/o MARISOL TORRES v NY CENTRAL MUT. FIRE INS. , Index No. 715694/20 (Civ Court, City of New York, Queens Cty, dated 6/6/2021 (Lanzetta, J.).

Defendant argues that both decisions demonstrate that assignor Marisol Torres’ failure to appear at duly scheduled IME's were the grounds for dismissal, with prejudice, and since plaintiff's assignor herein is the same Marisol Torres as in the two cited cases, the instant cross-motion by plaintiff should be denied under the doctrine of res judicata, accordingly.

In addition, defendant replies in further support of its motion for summary judgment, that it is entitled to dismissal on the grounds it timely denied reimbursements for plaintiff's bills, based upon the failure of plaintiff's assignor to appear at duly scheduled IME's, thereby failing to satisfy a condition precedent to the insurer's liability under the no-fault policy, which voided the policy ab-initio , resulting in no coverage for the no-fault claims, retroactively dated to the automobile accident date of 04/25/2019.

Here, the Court finds that although defendant established that the notices of the scheduled orthopedic IME's were properly mailed in accordance with defendant's standard office practice and procedures (see St. Vincent's Hosp. of Richmond v GEICO , 50 AD3d 1123 [2nd Dept 2008] ; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. , 17 Misc 3d 16 [App Term, 2d, 11th & 13th Jud Dists 2007] ), and that plaintiff's assignor failed to appear at each of the IME's (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. , 35 AD3d 720,721 [2nd Dept 2006] ; Utopia Equipment, Inc. v ELRAC, Inc. ,56 Misc 3d 134[A] [App Term, 2nd Dept, 2d, 11th & 13th Jud Dists 2017]), defendant failed to demonstrate that the scheduling of the orthopedic IME's complied with Regulation 11 NYCRR § 65-3.5 [d], which prescribes a statutory 30-calendar-day time frame for the timely holding of IME's, from the date of receipt of the verification forms or claims (see American Tr. Ins. Co. v Longevity Med. Supply, Inc. , 131 AD3d 841, 841 [1st Dept 2015] ), or that the 30-day period was tolled by a proper verification request (see Nyack Hosp. v Encompass Ins. Co. ,...

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