Global Liberty Ins. Co. of N.Y. v Otero (2018 NY Slip Op 51025(U))

21843/2017E

Counsel for Plaintiff: Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.)

Counsel for Defendant: Kopelevich & Feldsherova, P.C. (David Landfair, Esq.)

The following papers numbered 1 to 6 ere read on this motion (Seq. No. __ )

Answering Affidavit and Exhibits No(s). 3, 4

Replying Affidavit and Exhibits No(s). 5, 6

Upon the foregoing papers, the plaintiff Global Liberty Insurance Company of New York (“Plaintiff”) moves for an order (1) granting Plaintiff summary judgment pursuant to CPLR 3212 against Prompt Medical Supply, Inc. (“Prompt”), ordering, adjudging, and decreeing that Prompt is not entitled to no-fault coverage for the motor vehicle accident that occurred on August 24, 2015, since defendant Rosalee Otero (“Otero”) failed to attend properly scheduled IME’s, and (2) permanently staying all Civil Court matters and no-fault arbitrations. Prompt opposes the motion.

Plaintiff provided a policy of insurance to its insured which included a no-fault endorsement providing coverage to an insured, or an eligible injured person, in an amount of at least $50,000 for all necessary expenses resulting from a motor vehicle accident. This policy was in effect on August 24, 2015. On that date, Otero was allegedly involved in a motor vehicle accident and she thereafter made claims as an eligible person under the above-referenced insurance policy. Otero specifically sought no-fault benefits from the named provider defendants, including Prompt. Otero assigned her rights to collect no-fault benefits to the provider defendants, who thereafter submitted no-fault billing to Plaintiff for the services they rendered to Otero.

On October 13, 2015, OmniMed Evaluation Services (“OmniMed”), on behalf of Plaintiff, sent Otero a letter requesting that she attend a chiropractor/acupuncture independent medical examination (“IME”) scheduled for October 26, 2015. Otero failed to appear for the duly scheduled IME. On October 26, 2015, OmniMed sent Otero a second letter requesting that she attend a chiropractor/acupuncture IME on November 9, 2015. Again, Otero failed to attend the duly scheduled IME. Plaintiff states that the first no-fault billing on this case was received from the answering defendant on October 13, 2015. Plaintiff thereafter commenced this declaratory judgment action and now moves for summary judgment.

Under New York Code of Rules and Regulations 11 (“NYCRR”), §65-1.1, the failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonable require” is a breach of a condition precedent to coverage under a No-Fault policy. Accordingly, when the [*2]defendants’ assignor Otero failed to appear for the requested IMEs, Plaintiff had the right to deny all claims retroactively to the date of loss (see 11 NYCRR §65-3.8[c]). Otero’s non-appearance at the IMEs constitutes a failure of a condition precedent to receipt of insurance benefits for the motor vehicle accident, to any parties potentially entitled to benefits under Insurance Law §5103 or their assignees (11 NYCRR §65-1.1(a). See NY Ins. Law §5103[d] and [h]; Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept. 2011], lv. den., 17 NY3d 705 [2011]; Mapfire Ins. Co. of NY v. Manoo, 140 AD3d 468 [1st Dept. 2016]). Plaintiff’s submissions established its entitlement to summary judgment, as it provided evidence that it sent notices scheduling Otero’s IME examination on two occasions, and Otero failed to appear. Plaintiff also provided sufficient evidence that it complied with the procedures and time frames set forth in the no-fault implementing regulations (Unitrin, 82 AD3d at 560]). Plaintiff has therefore demonstrated that it is entitled to disclaim coverage to an eligible insured and to his or her assignees, retroactive to the date of loss.

In opposition to the motion, Prompt first asserts that the affidavits from Regina Abbatiello and Karin Bruford are not in admissible form. Prompt alleges that the affidavits failed to adequately show that the affiants proved their identities to the notary. However, the notary on both affidavits contains the language “sworn to before me” on a date certain. A notary public is “presumed to have acted within his or her jurisdiction and carried out his or her duties as required by law” where, as here, there is no showing to the contrary (see Collins v. AA Truck Renting Corp., 209 AD2d 363 [1st Dept. 1994]). Prompt also asserts that the captions on two of the affidavits are incorrect. However Prompt does not claim to have sustained any prejudice as a result of this error, and it was able to provide substantive opposition to this motion. “Defects, mistakes, and irregularities” may be ignored where, as here, there is no showing of prejudice (see First Wisconsin Trust Co. v. Hakiman, 237 AD2d 249, 249 [2nd Dept. 1997]).

Prompt next argues that Plaintiff failed to demonstrate that it properly scheduled the IME within 30 days of receipt of billing in accordance with 11 NYCRR §65-3.5(d). This contention is unavailing. Plaintiff has supplied an affidavit from Regina Abbatiello, a no-fault claims examiner, who stated that she has personal knowledge of Plaintiff’s office procedures and processing of no-fault claims. She asserts that, in this case, the first no-fault billing was received from the answering defendant on October 13, 2015. The first IME was scheduled for October 26, 2015, within 30 days of receipt of that billing. Contrary to Prompt’s contentions, these sworn assertions are sufficient to demonstrate Plaintiff’s compliance with the statute (compare American Transit Inc. Co. v. Longevity Med. Supply, Inc., 131 AD3d 841, 842 [1st Dept. 2015][plaintiff failed to establish that it complied with 30-day requirement where it provided “no evidence in affidavit form or any other form” indicating the date upon which plaintiff received the prescribed verification form from defendant]). Prompt failed to submit any admissible evidence refuting the allegations in the Abbatiello affidavit.

Prompt contends that Plaintiff has failed to establish the proper mailing of the IME scheduling letters. Prompt alleges that the affidavit from Karin Bruford of OmniMed is insufficient because she fails to allege that she had personal knowledge of the standard used to mail scheduling letters, and she fails to provide substantive information regarding how mailing addresses are verified or how postage is affixed to mailings, or how Plaintiff delivers mail into the custody of USPS.

After review of the challenged affidavit and accompanying submissions, this Court finds that Plaintiff has sufficiently carried its burden of proof. It order to raise the presumption of proper mailing, a movant may either provide “proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013], citing Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [2nd Dept. 2001]). In this case, the Bruford affidavit competently explains the office procedure for affixing postage and states that clerical staff in her office transfer mail to the exclusive possession of the United States Postal [*3]Service. She affirms that the IME letters in this case were sent to Otero’s address, which was 230 New Lots Ave., 6D, Brooklyn, New York 11207. Plaintiff has also supplied mailing ledgers date-stamped and signed by a United States Postal Service employee. Each of these ledgers indicates that mailings were sent to Otero and her attorney’s office. This evidence, when considered alongside the Bruford affidavit, sufficiently carried Plaintiff’s burden of demonstrating that the IME letters were properly mailed (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424; Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679, 680 [testimony, certificate of mailing, and signed and stamped mailing ledger provided proof of actual mailing]). Furthermore, the foregoing evidence establishes that the mailings were sent to Otero’s proper address. While Plaintiff’s counsel and Abbattiello state that Otero’s address was “230 Lotts Avenue, Apt. 4D, Brooklyn, NY 11207,” Otero’s application for no-fault benefits sent to Plaintiff lists her address as “230 New Lots Avenue, Apt. 6D, Brooklyn, NY 11207” which is the address the mailings were sent to. There is no evidence that Plaintiff was ever made aware of the different address that Otero provided to Prompt in her assignment of benefits form, which post-dates the date of the two mailings.

Finally, Prompt contends that the affidavit from Plaintiff’s IME physician is insufficient to establish that Otero failed to appear for duly-scheduled appointments. This Court disagrees. Plaintiff’s physician Dr. Antionette Perrie states that she was personally present at her office on the IME dates, but the claimant failed to appear. The doctor notes that it was her office’s practice to note a claimant’s non-appearance, and she can say with certainty that claimant failed to appear on the appointment dates. The foregoing contentions are sufficient to establish the basis for the doctor’s personal knowledge that claimant-Otero failed to appear for duly-scheduled IME appointments (see American Transit Ins. Co. v. Lucas, 111 AD3d 423, 424 [1st Dept. 2013]). The physician affidavit is substantially similar to the one presented in support of a motion for summary judgment in American Transit Ins. Co. v. Clark, New York County Index No. 152876/2012 (see Ronald G. Lafranchi Affidavit dated April 7, 2013; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment). On appeal, while the First Department determined that the plaintiff’s motion should have been denied on other grounds, the Court did find that the plaintiff had adequately established that the claimant failed to appear for duly-scheduled IME’s (131 AD3d 840 [1st Dept. 2015]). Furthermore, in American Tr. Ins. Co. v. Solorzano, the plaintiff’s IME doctor submitted an affidavit that only stated, in pertinent part, “[claimant] was scheduled to appear for a Medical Examination on Monday, February 28, 2011 and Monday, March 14, 2011 pursuant to requests made by Independent Physical Exam Referrals, Inc. The claimant failed to comply with the requests and did not appear on those dates” (see Dr. Cirino G. Sesto Affidavit, dated May 9, 2011; Exhibit 4 to plaintiff’s motion for a default judgment/summary judgment; Bronx County Index No. 307769/2011). The First Department found that this affidavit, along with plaintiff’s other submissions, was sufficient to demonstrate that the claimant failed to appear for duly scheduled IME’s (108 AD3d 449 [1st Dept. 2013). In this case, this Court similarly finds that the affidavits of Plaintiff’s IME physician and from Ms. Bruford are sufficient to demonstrate that claimant Otero failed to appear for her scheduled IMEs.

Accordingly, it is hereby,

ORDERED, that Plaintiff’s motion for summary judgment against defendant Prompt is granted, and it is further,

ORDERED and DECLARED, that Prompt is not entitled to no-fault coverage for the subject motor vehicle accident that occurred on August 24, 2015, since claimant Otero failed to attend properly scheduled IMEs, and it is further,

ORDERED, that any related Civil Court matters and no-fault arbitrations are permanently stayed.

This constitutes the Decision and Order of this Court.

Dated: June 15, 2018

[*4]Hon.___________

J.S.C.