Country-Wide Ins. Co. v Ware (2021 NY Slip Op 50506(U))

650050/2020

Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Longevity Medical Supply, Inc., Columbus Imaging Center, LLC, and Bridges Psychological Services, P.C.

This motion concerns plaintiff Country-Wide Insurance Company’s potential obligation to pay no-fault insurance benefits. Defendant Saquan Ware was the driver of a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by Country-Wide. Ware assigned his right to collect no-fault benefits under that policy to the medical provider defendants. They applied for no-fault benefits from Country-Wide but were [*2]denied.

Country-Wide now moves for summary judgement under CPLR 3212 against defendants Jamaica Hospital Medical Center Diagnostic and Treatment Center (Jamaica Hospital Center), Columbus Imaging Center, Direct RX Pharmacy, Longevity Medical Supply, and Bridges Psychological Services. Country-Wide seeks a declaratory judgment that it is not liable to pay no-fault benefits to these medical-provider assignees because Ware failed to appear for duly scheduled independent medical examinations (IMEs).

The motion is granted on default and without opposition as to defendants Jamaica Hospital Center and Direct RX Pharmacy. The motion is granted as to defendants Columbus Imaging Center, Longevity Medical Supply, and Bridges Psychological Services.

DISCUSSION

I. Whether Country-Wide Timely Requested that Ware Appear for Timely Scheduled IMEs

A no-fault insurer seeking a declaratory judgment of no-coverage for the injured person’s failure to appear for IMEs must establish that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) Under those regulations, the insurer must request an IME within 15 business days of receipt of the forms that it requires to verify no-fault claims, such as the NF-3 forms in this case; and the IME must be scheduled to be held within 30 calendar days of receipt. (See 11 NYCRR 65-3.5[b], [d].)

Country-Wide submits affidavits from two administrative employees (with supporting documentation) representing that that the IME request form was mailed on January 13, 2017; that the IME was originally scheduled to be held on January 26; and that Ware failed to appear for his IME either on January 26 or on the rescheduled examination date. Country-Wide also provides the affidavit of its no-fault litigation supervisor representing that Country-Wide received, among others, provider bills on December 28, 2016, December 30, 2016, and January 9, 2017—along with copies of the date-stamped bills themselves. Country-Wide has thus established that Ware failed to appear for two timely requested and timely scheduled IMEs.

There is no merit to defendants’ argument that Country-Wide must demonstrate when it received the first bill from a given provider, nor that Country-Wide must demonstrate that it requested an IME within 15 business days of the very first bill received from any provider. Rather, for timeliness purposes it is sufficient for the insurer to establish that it requested an IME within 15 business days of receipt “of a medical provider claim (NF-3).” (Unitrin Direct Ins. Co. v Beckles, 188 AD3d 620, 620 [1st Dept 2020] [emphasis added].) And the First Department has made clear not only that an injured person’s failure twice to appear for a timely and properly scheduled IME “is a breach of a condition precedent to coverage” that “voids the policy ab initio,” but therefore also that this “coverage defense applies to any claim and is not determined [*3]on a bill by bill basis.”^[FN1] (Unitrin Advantage Ins. Co. v Dowd, 2021 NY Slip Op 03012 [1st Dept May 11, 2021] [emphasis added], citing PV Holding Corp. v. AB Quality Health Supply Corp., 189 AD3d 645, 646 [1st Dept 2020].)

Nor, given the detailed representations in the affidavits supplied by Country-Wide, is this court persuaded by defendants’ arguments (i) that those affidavits are insufficient to make the documents submitted by Country-Wide admissible as business records; or (ii) that the affidavits are insufficient to establish timely and proper IME mailings by Country-Wide and Ware’s failure to appear for the IMEs.

This court therefore concludes that Country-Wide has established as a matter of law that Ware failed twice to appear for properly scheduled IMEs. Given those failures to appear, Ware’s insurance coverage is void ab initio, and Country-Wide has no liability to pay him no-fault benefits. The medical-provider defendants on this motion, as Ware’s assignees, stand in his shoes and have no greater right to collect no-fault benefits than he does. Country-Wide has thus established that it has no liability to pay them no-fault benefits, either. Country-Wide’s motion for summary judgment is granted.

Settle Order.

DATE 5/28/2021

Footnotes

Footnote 1: There also is no merit to defendants’ oft-repeated argument that the First Department has retreated from or repudiated its holding in Unitrin Advantage Insurance Co. v Bayshore Physical Therapy, PLLC (82 AD3d 559 [1st Dept 2011])—or to defendants’ assertion that this court is free to disregard the First Department’s decision in Bayshore because it is (supposedly) bad law.