Repwest Ins. Co. v Advantage Radiology, P.C. (2014 NY Slip Op 50016(U))

Supreme Court, New York County

101549/12

Plaintiff:

Bryan Cave, LLP

1290 Avenue of the Americas

New York, NY 10104

Defendants:

Leon Kucherovsky, Esq. (for Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc.)

115 South Corona Avenue

Valley Stream, NY 11580

Doris Ling-Cohan, J.

This is an action for declaratory judgment arising out of an alleged motor vehicle collision on July 21, 2011. Defendants Akil Aime (Akil), Jeffrey J. Aime (Jeffrey), and Lynval Howell (Lynval) (collectively “Defendant Claimants”) were allegedly injured in such motor vehicle accident involving a U-Haul truck, in which Defendant Claimants were passengers. The U-Haul truck is insured by plaintiff Repwest Insurance Company (Repwest Ins.). No physical injuries were reported on the date of the accident, Defendant Claimants refused medical attention at the scene, and the U-Haul sustained no damage. Thereafter, Defendant Claimants began seeking treatment, for injuries alleged sustained in the July 21, 2011 collision, from defendants Advantage Radiology, P.C., A & F Medical, P.C., Comprehensive Psychological Evaluation, P.C. (Comprehensive Psychological), Living Well Chiropractic, P.C., Metropolitan Medical & Surgical, P.C., New Age Acupuncture, P.C., O & M Medical, P.C., NY Universal Medical, P.C., Orthoplus Products, Inc. (Orthoplus), Psychological Evaluation & Testing Services, LLC, Rehabxpress PT, P.C., and RM Physical Therapy, P.C. (collectively “Medical Provider Defendants”). Such Medical Provider Defendants submitted claims to plaintiff Repwest Ins. as alleged assignees of Defendant Claimants.

On November 8, 2011, plaintiff Repwest Ins., through its attorney, sent a letter to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant attend an examination under oath (EUO) on November 22, 2011. As each Defendant Claimant failed to appear at such EUO, plaintiff Repwest Ins.’s attorney sent another letter, dated December 1, 2011, to each Defendant Claimant, as well as to defendant Akil’s attorney and defendant Jeffrey’s attorney, requesting that each Defendant Claimant appear for an EUO on December 15, 2011. While defendant Akil and defendant Lynval both failed to appear at such EUO, defendant Jeffrey contacted plaintiff Repwest Ins.’s attorney’s office by telephone to reschedule his EUO. As defendant Jeffrey was represented by an attorney, he was informed that his counsel needed to call to reschedule. Thereafter, defendant Jeffrey failed to appear at the EUO scheduled for December 15, 2011, and no call was received by his attorney to reschedule. By letter dated January 3, 2011, sent to defendant Jeffrey and his attorney, plaintiff Repwest Ins.’s attorney requested that defendant Jeffrey appear for an EUO on January 18, 2012. Defendant Jeffrey failed to appear at such EUO. Subsequently, plaintiff Repwest Ins. denied all no-fault coverage for this claim based upon Defendant Claimant’s failure to attend the scheduled EUOs.

In this action, plaintiff Repwest Ins. seeks a declaration that it owes no duty to pay No-Fault benefits to any of the named defendants on the ground that the Defendant Claimants failed to appear for duly scheduled EUOs, in violation of the No-Fault regulations and in violation of a condition precedent to coverage for all No-Fault claims submitted by the Medical Provider Defendants.

By Decision/Order dated September 19, 2013, a default judgment was granted against all defendants except for defendants Comprehensive Psychological and Orthoplus (collectively [*2]“Answering Defendants”), the only remaining defendants ^[FN1].

Plaintiff Repwest Ins. now moves for summary judgment against the Answering Defendants, declaring that such defendants are not entitled to no-fault coverage, as Defendant Claimants failed to attend the EUOs. The Answering Defendants jointly oppose plaintiff Repwest Ins.’s motion.

DISCUSSION

The standards of summary judgment are well settled. Summary judgment should only be granted if the moving party has sufficiently established that it is warranted as a matter of law. Alvarez v Prospect Hosp., 68 NY2d 320, 324 (1986). To grant summary judgment, it must be clear that no material or triable issues of fact are presented. See Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957). “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case”. Winegrad v New York University Medical Center, 64 NY2d 851, 853 (1985). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to “demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure…to do [so]”. Zuckerman v City of New York, 49 NY2d 557, 560 (1980). However, the Court of Appeals has made clear that bare allegations or conclusory assertions are insufficient to create genuine, bona fide issues of fact necessary to defeat such a motion. See Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 (1978).

Here, plaintiff Repwest Ins.’s motion for summary judgment against the Answering Defendants is granted. In support of its motion, plaintiff Repwest Ins. proffers, inter alia, the two letters sent to defendant Akil and her attorney requesting her appearance at two EUOs, the two letters sent to defendant Lynval requesting his appearance at two EUOs, and the three letters sent to defendant Jeffrey and his attorney requesting his appearance at three EUOs, the affidavits of service for all such letters, and an affidavit from Joseph R. Federici, Esq. stating that on each scheduled EUO date, he waited for the Defendant Claimants and each Defendant Claimant failed to attend the scheduled EUOs. As such, plaintiff Repwest Ins. has shown that it arranged two EUOs for defendant Akil and Lynval, and three EUOs for defendant Jeffrey, that Defendant Claimants were all notified of such EUOs by mail, and that all Defendant Claimants failed to attend the EUOs.

The Appellate Division, First Department, has found that “failure to appear for IMEs requested by the insurer when . . . [it] may reasonably require . . . is a breach of a condition precedent to coverage under the No-Fault policy.” Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 (1st Dep’t 2011)(internal quotations and citations [*3]omitted); see also 11 NYCRR 65-1.1. As such, “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.” Id. Thus, plaintiff Repwest Ins. has established entitlement to summary judgment as a matter of law declaring that the Answering Defendants are not entitled to no-fault coverage for the motor vehicle accident that occurred on July 21, 2011.

In opposition, the Answering Defendants proffer only an attorney’s affirmation, which is not based upon the requisite personal knowledge and is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985); Wehringer v Helmsley Spear, Inc., 91 AD2d 585, 585 (1st Dep’t 1982). New York courts have consistently held that “a bare affirmation of . . . [an] attorney who demonstrated no personal knowledge . . . is without evidentiary value and thus unavailing.” Zuckerman v City of New York, 49 NY2d 557, 563 (1980). Furthermore, an affirmation by an attorney who is without the requisite knowledge of the facts has no probative value. Di Falco, Field & Lomenzo v Newburgh Dyeing Corp., 81 AD2d 560, 561 (1 Dept 1981), aff’d 54 NY2d 715 (1981). Thus, the Answering Defendants’ attorney’s conclusory and speculative affirmation, is insufficient to raise any factual issues to warrant a denial of the within motion. See GTF Marketing Inc. v Colonial Aluminum Sales, Inc., 66 NY2d 965, 968 (1985).

Even if this court were to consider such attorney affirmation, the Answering Defendants have failed to raise an issue of fact sufficient to preclude summary judgment. Specifically, the Answering Defendants argue that the EUO requests were defective in that they made improper demands for the production of documents, that Defendant Claimants failed to appear at the EUOs due to the defective requests, and that plaintiff Repwest Ins. has failed to demonstrate that Defendant Claimants failed to appear at the EUOs. In support of its argument, the Answering Defendants cite Dynamic Medical Imaging, P.C. v State Farm Mutual Automobile Ins. Co., 29 Misc 3d 278 (Dist. Ct, 1st Dist., Nassau Cty. 2010). The District Court in Dynamic held that EUO requests requiring claimants to provide documentation pertaining to the validity of the professional corporation prior to the EUOs were improper, as a Mallela defense is not precludable. The Dynamic Court went on to hold that “[i]f a carrier believes the provider/assignee is subject to a Mallela defense, the proper way to assert it is as an affirmative defense in its answer.” Id. at 284. In holding that the EUO requests were improper, and, thus, could not be the basis for obtaining summary judgment, the Dynamic Court stated that “[i]n addition to appearing for an [EUO], the assignee can be compelled to execute a written proof of claim under oath and provide other pertinent information as may assist the insurer in determining the amount due and payable. … The [no-fault] regulations only permit the insurer to obtain written information to verify the claim. Nothing in the no-fault regulations permits an insurer to request an assignee to produce corporate organizational and financial douments”. Id. at 283 (internal citations omitted).

Here, the documents requested in the EUO requests consist of, inter alia, insurance policies, documents related to bodily injuries from 2009 to date, identification, and photographs relating to the July 21, 2011 collision. Such documents, indisputably, are not related to a Mallela defense, and, thus, Dynamic is not applicable herein. Moreoever, plaintiff Repwest Ins. has proffered the affirmation of Joseph R. Federici, Esq., in which he clearly states that on each [*4]scheduled EUO date and time, he personally waited for each Defendant Claimant, and that each Defendant Claimant failed to appear. Thus, plaintiff Repwest Ins.’s motion for summary judgment is granted.

Accordingly, it is

ORDERED that plaintiff Repwest Insurance Company’s motion for summary judgment against defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. is granted; and it is further

ORDERED, ADJUDGED and DECLARED that the defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. are not entitled to no-fault coverage, from plaintiff Repwest Insurance Company, for the motor vehicle accident that occurred on July 21, 2011; and it is further

ORDERED that the Clerk is directed to enter judgment in favor of plaintiff; and it is further

ORDERED that, within 30 days of entry, plaintiff shall serve upon defendants Comprehensive Psychological Evaluation, P.C. and Orthoplus Products, Inc. a copy of this decision and order, together with notice of entry.

This constitutes the Decision and Order of the Court.

Dated: January 13, 2014

DORIS LING-COHAN, J.S.C.

Footnotes

Footnote 1: The Court notes that the Answering Defendants’ amended affirmation in opposition to plaintiff Repwest Ins.’s motion for summary judgment states that it is a joint opposition by defendants Comprehensive Psychological, Orthoplus, and NY Universal Medical, P.C. However, by Decision/Order dated September 19, 2013, a default judgment was entered against NY Universal Medical, P.C. Defendant NY Universal Medical, P.C. has not filed an answer in this action and has failed to move to vacate its default. As such, the affirmation in opposition will only be considered as to defendants Comprehensive Psychological and Orthoplus.