Pavlova v. Ameriprise Auto & Home

• Decision Date: 02 November 2018
• Docket Number: 68027/14
• Citation: 62 Misc.3d 206,89 N.Y.S.3d 518
• Court: New York Civil Court
• Parties: Ksenia PAVLOVA, D.O. a/a/o Anthony Husband, Plaintiff, v. AMERIPRISE AUTO & HOME, Defendant.

62 Misc.3d 206

89 N.Y.S.3d 518

Ksenia PAVLOVA, D.O. a/a/o Anthony Husband, Plaintiff,

v.AMERIPRISE AUTO & HOME, Defendant.

68027/14

Civil Court, City of New York.

Decided on November 2, 2018

The Rybak Firm PLLC by Karina Barska Esq., Attorney for Plaintiff.

Bruno Gerbino & Soriano LLP by Michael Callinan, Esq., Attorney for Defendant.

Mary V. Rosado, J.

In this action by a provider to recover first-party no-fault benefits, Defendant Ameriprise Auto & Home (hereinafter "Defendant") moves to renew and reargue this court's decision dated June 21, 2017 denying Defendant's motion for summary judgment and granting Plaintiff Ksenia Pavlova D.O. a/a/o Husband Anthony's (hereinafter "Plaintiff") cross-motion for summary judgment as to their prima facie case. This motion came before the court on July 26, 2018.¹ In addition to oral arguments of counsel, the court considered the following submissions of the parties, pursuant to CPLR 2219(a) :

Title Number

Defendant's Order to Show Cause for Leave to Renew and Reargue entered August 18, 2017; Defendant's Affirmation in Support dated August 17, 2017 and Supporting Exhibits A-D 1-2

Plaintiff's Affirmation in Opposition undated 3

Defendant's Reply Affirmation in Further Support of Defendant's Order to Show Cause to Reargue dated June 18, 2018 4

Upon the foregoing papers, the Decision and Order of the Court is as follows:

In the underlying motion, Defendant requested summary judgment based upon Plaintiff's failure to appear for an examination under oath and based upon the insured's alleged material misrepresentations when originally obtaining the insurance policy. Defendant claimed that the insured knew but did not disclose that the assignor, who has a poor driving record, would be driving the insured's vehicle. Plaintiff cross-moved requesting that the court deny Defendant's motion and grant Plaintiff summary judgment based upon proper mailing of the bills and Defendant's failure to pay or deny the claims within 30 days. After oral argument, this court signed a consent order on June 21, 2017 which read as follows:

Upon the foregoing cited papers, the Decision/Order on Defendant's motion for summary judgment and Plaintiff's cross motion for summary judgment and after oral arguments is as follows: Defendant's motion is denied as there are triable issues of fact as to the timely and proper generation and mailing of the denials, the EUO letters and the defense of EUO no show. Plaintiff's cross motion is granted to the following extent, and the following facts are not in dispute and are deemed established for all purposes in this action pursuant to CPLR 3212(g). Plaintiff's established its prima facie case for all purposes in this action. The sole issues for trial are Defendant's prima facie and the defense of EUO no show.

A motion for leave to reargue shall be based upon "matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matter of fact not offered on the prior motion" ( CPLR 2221 [d] [2] ).

Defendant argues that this Court overlooked facts and arguments when it found the underlying motion insufficient for dismissal. Specifically, Defendant argues that the court overlooked the alleged material misrepresentations made when the insured obtained the insurance policy because the order does not mention the arguments made by the parties about the alleged material misrepresentations. In opposition, Plaintiff claims that the motion was correctly determined after extensive oral argument.

The court notes that the order for which Defendant seeks reargument was drafted on consent of the parties after the parties were given an opportunity to address their claims in front of the court. Further, the order was drafted by one of the attorneys who originally argued the case and was reviewed by both attorneys before it was presented to the court for signature. Therefore, the parties should have ensured that all of the pertinent arguments were included. They failed to do so. However, given that there is no record of the proceedings, it is difficult to reconstruct the circumstances that led to the instant motion.

Given that this the order does not mention Defendant's material misrepresentation defense, Plaintiff's motion for leave to reargue is granted.

Examination Under Oath No Show Defense

The no-fault regulations require an insurer to either pay or to deny a claim for no-fault benefits within 30 days from the date of receipt of the claim ( Insurance Law 5106[a] ; 11 NYCRR 65-3.8 [a] ). An insurer may toll the 30-day period to pay or deny a claim by properly requesting verification within 15 business days from its receipt of the proof of claim form or bill ( 11 NYCRR 65-3.5 [b]; Compas Med, PC v. Praetorian Ins Co , 49 Misc. 3d 152[A], 2015 WL 8485517 [App. Term 2nd Dept. 2015] ). If the "requested verification has not been supplied to the insurer 30 calendar days after the original receipt, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested, either by a telephone call or by mail. At the same time the insurer shall inform the applicant and such person's attorney of the reason(s) why the claim is delayed by identifying in writing the missing verification and the party from whom it was requested" ( 11 NYCRR § 65-3.6 [b] ). "The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested" ( 11 NYCRR 65-3.5 [c] ). "A claim need not be paid or denied until all demanded verification is provided" ( New York & Presbyterian Hosp. v. Progressive Cas. Ins. Co. , 5 A.D.3d 568, 570, 774 N.Y.S.2d 72 [App. Div. 2d Dept. 2004] ).

In order to succeed on a motion for summary judgment, a movant must establish his claim or defense sufficiently to warrant the court, as a matter of law, to direct judgment in his favor and he must do so by tender of evidentiary proof in admissible form (see CPLR 3212[b] ; Zuckerman v City of New York , 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). Here, Defendant must prove that its requests for examination under oath were timely mailed and that Plaintiff failed to appear at said examinations.

Further, 11 NYCRR 65-3.5 specifies the requirements for the notice of independent medical examinations or examinations under oath. It states in part:

(e) All examinations under oath and medical examinations requested by the insurer shall be held at a place and time reasonably convenient to the applicant and medical examinations shall be conducted in a facility properly equipped for the

performance of the medical examination. The insurer shall inform the applicant at the time the examination is scheduled that the applicant will be reimbursed for any loss of earnings and reasonable transportation expenses incurred in complying with the request.

However, where an examination under oath had been mutually rescheduled or was supposed to be mutually rescheduled, a no-show on those dates would not be deemed to constitute a failure to appear (see DVS Chiropractic, P.C. v. Interboro Ins. Co. , 36 Misc. 3d 138[A], 2012 WL 3139771 [App. Term, 2d Dept. 2012] ).

When a party who is required to appear fails to attend a scheduled examination under oath, the insurer must contact the party within 10 days in order to afford the party a second opportunity to attend an examination under oath ( 11 NYCRR 65-3.6 [b] ). If the party fails to appear at the rescheduled mutually agreed upon examination under oath, an insurer may issue a denial of pending claims based upon the failure to meet the condition for coverage.

It is well settled that an appearance at an examination under oath or independent medical examination "is a condition precedent to the insurer's liability on the policy" and an insurer can deny a claim retroactively to the date of loss for a claimant's failure to attend an examination under oath ( 11 NYCRR 65-1.1 ).

Once the movant established his defense or claim the burden then shifts to the non-moving party to produce evidence in admissible form to demonstrate, based on affirmative proof, the existence of a disputed material issue of fact sufficient to require a trial (see SRM Card Shop, Inc....