September 15, 2015

American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762)

Headnote

The main issue in American Tr. Ins. Co. v Vance was whether defendant KHL Acupuncture, P.C. was entitled to receive no-fault benefits from the plaintiff. The court considered the fact that KHL's assignor, Shateahah Vance, did not appear for scheduled independent medical examinations (IMEs). The court held that the plaintiff failed to establish that it was entitled to deny KHL's claim because the scheduling of the IMEs did not comply with the procedures and time frames set forth in the No-Fault implementing regulations. The court reversed the lower court's decision, denied the plaintiff's motion for summary judgment, and vacated the declaration that KHL was not entitled to receive no-fault benefits. In a dissenting opinion, Judge Friedman disagreed with the reversal of summary judgment, arguing that the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations was raised for the first time on appeal. Judge Friedman suggested that if the issue had been raised before the motion court, the plaintiff may have been able to establish that the IMEs had been scheduled in compliance with the regulation. Furthermore, he stated that it seemed unfair to reverse the motion court's decision based on an issue that was not raised in the defendant's opposition to the motion.

Reported in New York Official Reports at American Tr. Ins. Co. v Vance (2015 NY Slip Op 06762)

American Tr. Ins. Co. v Vance

2015 NY Slip Op 06762 [131 AD3d 849]

September 15, 2015

Appellate Division, First Department

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

As corrected through Wednesday, November 4, 2015

[*1]

American Transit Insurance Company, Respondent,
v
Shateahah Vance et al., Defendants, and KHL Acupuncture, P.C., Appellant.

Law Offices of Melissa Betancourt, P.C., New York (Melissa Betancourt of counsel), for appellant.

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

Order and judgment (one paper), Supreme Court, New York County (Anil C. Singh, J.), entered January 2, 2014, which, to the extent appealed from, granted plaintiff’s motion for summary judgment on its complaint against defendant KHL Acupuncture, P.C. (KHL), and declared that KHL is not entitled to receive no-fault benefits from plaintiff, reversed, on the law, without costs, the motion denied, and the declaration vacated.

Plaintiff failed to establish prima facie that it was entitled to deny KHL’s claim because KHL’s assignor, defendant Shateahah Vance, did not appear for independent medical examinations (IMEs) (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011] [to meet its prima facie burden on summary judgment, insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the No-Fault implementing regulations, and that the patient did not appear]; see also Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]). Here, although plaintiff established that the notices of the scheduled IMEs were properly mailed and that Vance did not appear, plaintiff failed to show that the scheduling of the IMEs complied with Insurance Department Regulations (11 NYCRR) § 65-3.5 (d), which prescribes a 30-calendar-day time frame for the holding of IMEs (see W.H.O. Acupuncture, P.C. v Travelers Home & Mar. Ins. Co., 36 Misc 3d 152[A], 2012 NY Slip Op 51707[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; American Tr. Ins. Co. v Jorge, 2014 NY Slip Op 30720[U] [Sup Ct, NY County 2014]). For the reasons set forth in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]), we disagree with the dissent’s view that this issue should not be reviewed because it was raised for the first time on appeal. Concur—Acosta, Moskowitz, Richter and Kapnick, JJ.

Friedman, J.P., dissents in a memorandum as follows: I respectfully dissent from the reversal of the grant of summary judgment to plaintiff in this case for substantially the same reason I dissent from the affirmance of the denial of summary judgment to the same plaintiff in American Tr. Ins. Co. v Longevity Med. Supply, Inc. (131 AD3d 841 [1st Dept 2015] [decided simultaneously herewith]). Here, as in Longevity, defendant medical vendor raised the issue of whether the IMEs were scheduled to be held within the 30-day time frame prescribed by Insurance Department Regulations (11 NYCRR) § 65-3.5 (d) for the first time on appeal. Had the issue been raised before the motion court, plaintiff may well have been able to establish that the IMEs had been scheduled in compliance with the regulation. Moreover, in this case, it seems unfair to reverse the motion court’s granting of summary judgment to plaintiff based on an issue that was not raised in defendant’s opposition to the motion.