May 10, 2018

Global Liberty Ins. Co. v New Century Acupuncture, P.C. (2018 NY Slip Op 03444)

Headnote

The plaintiff, Global Liberty Insurance Company, filed a motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis. They cited Davis' failure to appear for two scheduled independent medical examinations (IMEs) as a condition precedent to coverage, as well as their attempts to provide notice of the rescheduled IME. According to the plaintiff, they sent letters to Davis and her attorney, but the letter to Davis was sent to the wrong address. The court found that the plaintiff failed to demonstrate that it provided adequate notice reasonably calculated to apprise Davis of her required appearance at an IME, and consequently denied the motion for summary judgment. The main issue in this case was whether the plaintiff, Global Liberty Insurance Company, had provided adequate notice to the defendant, Heather Davis, regarding the rescheduled IME appointments, as a condition precedent to coverage for no-fault benefits. The court found that the plaintiff had failed to demonstrate adequate notice, and therefore upheld the decision to deny the motion for summary judgment. The holding of the case was that the plaintiff, Global Liberty Insurance Company, did not provide adequate notice to Heather Davis regarding the rescheduled IME appointments, and consequently was denied their motion for summary judgment seeking a declaration of non-coverage for no-fault benefits.

Reported in New York Official Reports at Global Liberty Ins. Co. v New Century Acupuncture, P.C. (2018 NY Slip Op 03444)

Global Liberty Ins. Co. v New Century Acupuncture, P.C.

2018 NY Slip Op 03444 [161 AD3d 498]

May 10, 2018

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, June 27, 2018

[*1]

Global Liberty Insurance Company, Appellant,
v
New Century Acupuncture, P.C., Respondent, et al., Defendants.

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.

Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1 [d]). Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423 [1983]; cf. American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [1st Dept 2013]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.