March 17, 2022

American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)

Headnote

The main issue in the case was whether the insurance policy issued by American Transit Insurance Company was void ab initio, and whether the medical provider defendants were entitled to no-fault insurance benefits arising from the motor vehicle accident. The court found that the insurer failed to establish prima facie that it was entitled to summary judgment based on the insured's failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it complied with New York State no-fault regulations governing the timeframes for scheduling IMEs. Specifically, the insurer did not establish that it timely requested the IMEs under the applicable regulations, and therefore, the court reversed the order granting the insurer's motion, denied the motion, and remanded the matter for further proceedings consistent with its decision. The court found that the insurer did not meet its burden of proof and compliance with the regulations, and therefore, was not entitled to summary judgment declaring the insurance policy void and denying benefits to the medical provider defendants.

Reported in New York Official Reports at American Tr. Ins. Co. v Alcantara (2022 NY Slip Op 01871)

American Tr. Ins. Co. v Alcantara

2022 NY Slip Op 01871 [203 AD3d 535]

March 17, 2022

Appellate Division, First Department

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

As corrected through Wednesday, May 4, 2022

[*1] (March 17, 2022)

American Transit Insurance Company, Respondent,
v
Ada Alcantara, Defendant, Advanced Ortho & Joint Preservation PC et al., Appellants, and P&D Merchandise Corp. et al., Respondents, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for Metro Pain Specialists PC and Pro Edge Chiropractic PC, appellants.

Order, Supreme Court, New York County (Louis L. Nock, J.), entered on or about February 24, 2021, which granted plaintiff American Transit Insurance Company’s motion for summary judgment declaring that the insurance policy it had issued was void ab initio and that the medical provider defendants were not entitled to no-fault insurance benefits arising out of a motor vehicle accident involving defendant Ada Alcantara, unanimously reversed, on the law, without costs, the motion denied, and the matter remanded for further proceedings consistent with this decision.

Plaintiff insurer failed to establish prima facie that it was entitled to summary judgment based on the insured’s failure to appear for an independent medical examination (IME), as its motion papers did not demonstrate that it sustained its burden of showing that it complied with New York State no-fault regulations (11 NYCRR 65-3.5 [b], [d]) governing the timeframes for scheduling IMEs (see Hertz Vehicles, LLC v Best Touch PT, P.C., 162 AD3d 617, 618 [1st Dept 2018]; Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017]; American Tr. Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015]). Specifically, plaintiff did not establish that it timely requested the IMEs under the applicable no-fault regulations, since plaintiff’s motion papers did not establish the dates of the verification forms that it received from the medical provider defendants; therefore, it is not possible to determine whether plaintiff sent the appropriate notices within 15 business days or 30 calendar days of receiving the forms, as required under 11 NYCRR 65-3.5 (b) and (d) (see American Tr. Ins. Co. v Acosta, 202 AD3d 567 [1st Dept 2022]; American Tr. Ins. Co. v Vance, 131 AD3d 849, 850 [1st Dept 2015]). Concur—Kapnick, J.P., Mazzarelli, Friedman, Gesmer, Oing, JJ.