Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC

• Decision Date: 17 March 2011
• Citation: 918 N.Y.S.2d 473,82 A.D.3d 559
• Parties: UNITRIN ADVANTAGE INSURANCE COMPANY, Plaintiff-Respondent, v. BAYSHORE PHYSICAL THERAPY, PLLC, et al., Defendants, Dr. Martin Bassiur, DDS, doing business as, N.Y. Craniofacial Pain Management, et al., Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

918 N.Y.S.2d 473

82 A.D.3d 559

UNITRIN ADVANTAGE INSURANCE COMPANY, Plaintiff-Respondent,

v.BAYSHORE PHYSICAL THERAPY, PLLC, et al., Defendants,Dr. Martin Bassiur, DDS, doing business as, N.Y. Craniofacial Pain Management, et al., Defendants-Appellants.

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

March 17, 2011.

Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for appellants.

Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for respondent.

ANDRIAS, J.P., SAXE, FRIEDMAN, MOSKOWITZ, RICHTER, JJ.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 1, 2010, which denied defendants-appellants'motion for summary judgment dismissing the complaint, granted plaintiff's cross motion for summary judgment on the complaint, and declared that plaintiff does not owe coverage for the No-Fault claims allegedly assigned to defendants, unanimously affirmed, without costs.

The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants' assignors' failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 721-722, 827 N.Y.S.2d 217 [2006] ). The failure to appear for IMEs requested by the insurer "when, and as often as, [it] may reasonably require" (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the No-Fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v. Chubb Group of Ins. Cos., 90 N.Y.2d 195, 659 N.Y.S.2d 246, 681 N.E.2d 413 [1997]. Accordingly, when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued ( see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Fogel, 35 A.D.3d at 721-22, 827 N.Y.S.2d 217).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage ( see Chubb, 90 N.Y.2d at 199, 659 N.Y.S.2d 246, 681 N.E.2d 413).

There is likewise no merit to defendants' contention that the IME request notices were invalid. Plaintiff 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. In opposition, defendants failed...