Kings Cnty. Physicians Grp. AAO v. Nationwide Ins. Co.

• Decision Date: 16 April 2021
• Docket Number: CV-704182-19/QU
• Citation: 71 Misc.3d 1209 (A),143 N.Y.S.3d 519 (Table)
• Parties: KINGS COUNTY PHYSICIANS GROUP AAO Seleznyov, Plaintiff(s), v. NATIONWIDE INSURANCE COMPANY, Defendant(s).
• Court: New York Civil Court

71 Misc.3d 1209 (A)

143 N.Y.S.3d 519 (Table)

KINGS COUNTY PHYSICIANS GROUP AAO Seleznyov, Plaintiff(s),

v.NATIONWIDE INSURANCE COMPANY, Defendant(s).

CV-704182-19/QU

Civil Court, City of New York, Queens County.

Decided on April 16, 2021

Plaintiff's Counsel: Gitelis Law Firm, P.C., 2004 Coney Island Avenue, 2d Floor, Brooklyn, NY 11223

Defendant's Counsel: Hollander Legal Group, P.C., 105 Maxess Road, Suite S128, Melville, NY 11747

Wendy Changyong Li, J.

Papers

The following papers were read on Defendant's motion for summary judgment seeking an order dismissing Plaintiff's complaint:

Papers Numbered

Defendant's Notice of Motion seeking summary judgment and Affirmation 1 In Support dated July 29, 2019 ("Motion ") and file stamped by the court on August 7, 2019.

Plaintiff's Affirmation in Opposition dated September 25, 2019 ("Opposition ").

Defendant's Affirmation in Reply dated February 4, 2020 ("Reply ") 3 and electronically filed with the court June 8, 2020.

Background

In a summons and complaint filed on March 1, 2019, Plaintiff sued Defendant insurance company to recover $9,609.62 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Seleznyov from February to July 2018, plus attorneys’ fees and statutory interest. Defendant moved for summary judgment dismissing the complaint on the ground that Plaintiff failed to attend scheduled Examinations Under Oath ("EUO"), or alternatively for judgment that Defendant established its prima facie case. Plaintiff opposed the motion.

I. Discussion and Decision

CPLR 3212 provides that "a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions ..." ( CPLR 3212 [b] ). "Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York , 49 NY2d 557, 562 [1980] ). "A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit" ( GTF Mktg. v Colonial Aluminum Sales , 66 NY2d 965, 967 [1985] ; Anghel v Ruskin Moscou Faltischek, P.C. , 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp. , 22 NY3d 824, 833 [2014] ). A motion for summary judgment "shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" ( CPLR 3212[b] ; Zuckerman v. City of New York , at 562, see GTF Mktg. v Colonial Aluminum Sales , 66 NY2d at 968 ).

Insurers must pay or deny No-Fault benefit claims "within thirty (30) calendar days after receipt of the proof of the claim" ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d 498, 501 [2015] ; Fair Price Med. Supply Corp. v Travelers Indem. Co. , 10 NY3d 556, 563 [2008] ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d 312, 317 [2007] ; see Insurance Law § 5106[a] ; 11 NYCRR § 65-3.8 [c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d 274, 278 [1997] ). Failure to establish timely denial of the claim precludes the insurer from offering evidence of its defense to non-payment ( Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. , 25 NY3d at 506 ; Fair Price Med. Supply Corp. v. Travelers Indem. Co. , 10 NY3d at 563 ; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. , 9 NY3d at 318 ; Presbyterian Hosp. in City of NY v Maryland Cas. Co. , 90 NY2d at 281-86 ). Noncompliance with an insurance policy provision requiring disclosure through an EUO is a failure of a condition precedent to an insurer's duty to indemnify ( IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d 1005, 1007 [2d Dept 2014] ; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]) and is a material policy breach precluding recovery of proceeds under the insurance policy ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d 755, 756 [2d Dept 2020] ; Interboro Ins. Co. v Clennon , 113 AD3d 596, 597 [2d Dept 2014] ).

In order to establish a defense that an insured failed to attend a duly scheduled EUO, an insurer must present evidence of the timely and proper mailing of the EUO scheduling letters ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d 693, 694 [2d Dept 2016] ). This may be established with evidence of the actual mailing or by an affidavit of a person "with personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed" ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C. , 139 AD3d at 694 ). To support its motion, Defendant presented the first demand letter dated April 5, 2018, scheduling the EUO for May 1, 2018, (see Motion, Aff. of Drapan, Ex. X). Further, in an affidavit sworn July 29, 2019, Hollander, president of Defendant's law firm, attested to the standard office mailing procedures for sending EUO request letters (see Motion, Drapan Aff. Ex. GG), which established timely submission of the EUO request ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 55 Misc 3d 141[A], 2017 NY Slip Op 50593[U] *2 [App Term 2d Dept 2017]; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 54 Misc 3d 131[A], 2017 NY Slip Op 50028[U] *1 [App Term 2d Dept 2017]). Although Seleznyov failed to appear for the EUO on May 1, 2018 with advanced notice, he appeared with counsel for the EUO rescheduled for May 30, 2018. Seleznyov's counsel had a conflicting appointment, however, which did not allow the EUO to be completed (see Motion, Drapan Aff. Ex. AA). While a mutually agreed rescheduling prior to an EUO does not constitute a failure to appear (Apple Avicenna Med. Arts, P.L.L.C. v Ameriprise Auto & Home , 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] *1 [App Term 2d Dept 2015]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. , 2013 NY Slip Op 52005[U] *1; DVS Chiropractic, P.C. v Interboro Ins. Co. , 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] * 2 [App Term 2d Dept 2012]), there is no evidence of such agreement despite Defendant's acknowledgement that the law firm representing Seleznyov contacted Defendant's counsel the day before the EUO scheduled on May 1, 2018, to advise that Seleznyov would not appear. Defendant also presented a letter dated June 5, 2018, which scheduled the continued EUO for June 26, 2018 (see Motion, Drapan Aff. Ex. BB), and, a letter dated June 28, 2018, which scheduled the continued EUO for July 25, 2018 (see Motion, Drapan Aff. Ex. DD), as well as a follow up letter dated June 29, 2018 (see Motion, Drapan Aff. Ex EE). These subsequent EUO scheduling letters timely scheduled the continued EUOs after each time Seleznyov failed to appear for the respective scheduled EUO ( 11 NYCRR § 65-3.6 [b]; see Active Care Med. Supply Corp. v Ameriprise Auto & Home , 58 Misc 3d 138[A], 2017 NY Slip Op 51835[U] *2 [App Term 2d Dept 2017]; ARCO Med. NY, P.C. v Lancer Ins. Co. , 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] *2 [App Term 2d Dept 2011]). The transcripts of the EUO proceedings (see Motion, Drapan Aff. Ex. Y, CC, FF) constituted adequate proof of Seleznyov's nonappearance at the EUOs ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; TAM Med. Supply Corp. v 21st Century Ins. Co. , 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] *1 [App Term 2d Dept 2017]; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1). Although Seleznyov appeared for one EUO, Defendant's evidence still established Seleznyov's failure to appear for an initial EUO on May 1, 2018, and a follow-up EUOs on June 26 and July 25, 2018, to prove Plaintiff's failure of a condition precedent to Defendant's duty to pay the claims (see Apple Massage Therapy, P.C. v Adirondack Ins. Exch. , 56 Misc 3d 132[A], 2017 NY Slip Op 50935[U] *2 [App Term 2d Dept 2017]; Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. , 41 Misc 3d 140[A], 2013 NY Slip Op 52005[U] *2 [App Term 2d Dept 2013]).

The affidavits of Mclendon, Operations Manager of Defendant's agent for processing incoming and outgoing mail, established Defendant's standard mailing procedures designed to ensure timely mailing and the timely denial of Plaintiff's claims within 30 days after the last scheduled EUO at which Seleznyov failed to appear ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; Tam Med. Supply Corp. v 21st Century Ins. Co. , 2017 NY Slip Op 51510[U] *1; First Class Med., P.C. v State Farm Mut. Auto. Ins. Co. , 2017 NY Slip Op 50593[U] *2; National Med. & Surgical Supply, Inc. v ELRAC, Inc. , 2017 NY Slip Op 50028[U] *1). Therefore, Defendant's denial of these claims on August 3, 2018 was timely ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757, see 11 NYCRR §§ 65-3.5 [a]; 65-3.5[a]). Defendant's evidence that it requested Seleznyov's appearance at the continued EUOs twice after the EUO for which he did appear and testify, that he failed to appear both times for the scheduled continued EUOs and that Defendant denied Plaintiff's claim on such basis satisfied Defendant's burden of establishing a material policy breach by Plaintiff ( Nationwide Affinity Ins. Co. of Am. v George , 183 AD3d at 757 ; IDS Prop. Cas. Ins. Co. v Stracar Med. Servs., P.C. , 116 AD3d at 1007 ; Interboro Ins. Co. v Clennon , 113 AD3d at 597 ). Finally, Defendant's...