American Tr. Ins. Co. v Bookman (2020 NY Slip Op 50607(U))

Index No. 161280/2018

The Law Office of Daniel J. Tucker, Brooklyn, NY (R. Jacob Lamar of counsel), for plaintiff.

The Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Acupuncture Now, P.C., Healthway Medical Care, P.C., Jules Francois Parisien, M.D., and SB Chiropractic, P.C.

This motion concerns plaintiff’s potential obligation to pay no-fault insurance benefits. Defendant Elvina Bookman was a passenger in a vehicle that was involved in a collision. The vehicle was covered by a no-fault insurance policy issued by plaintiff American Transit Insurance Company. Bookman applied for no-fault benefits, which American Transit denied.

In this action, American Transit seeks a declaratory judgment that it is not required to pay no-fault benefits to Bookman or to the other defendants (medical providers acting as Bookman’s assignees). American Transit now moves for summary judgment on this claim under CPLR 3212 as against those defendants who have appeared in the action, and moves for default judgment under CPLR 3215 as against the remaining, non-appearing defendants. The motion is denied.

A no-fault insurer seeking a declaration of no coverage due to asserted violations of the terms of the policy must first demonstrate that it complied with each of the procedural and timeliness requirements of 11 NYCRR § 65-3.5, governing the handling of no-fault claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) American Transit has not satisfied that requirement here.

Section 65-3.5 provides among other things that once an insurer receives a claim for benefits, the insurer has 10 business days to provide the claimant with the forms that it requires for verification of the claim. (See 11 NYCRR § 65-3.5 [a].) Once the insurer receives the completed verification forms, it then has 15 business days to request further verification, such as an examination under oath. (See id. § 65-3.5 [b].)

Here, the record reflects that American Transit received an NF-2 benefits application form from Bookman on August 2, 2018. And the record reflects that American Transit requested on August 28, 2018, that Bookman appear for an examination under oath. Yet nothing in the record (whether in the form of an affidavit or documentary evidence) might establish when American Transit sent the necessary verification forms to Bookman, or when American Transit received the completed verification forms back from Bookman. Absent that information, American Transit has failed to satisfy all the elements of its claim for declaratory relief.

American Transit thus is not entitled to summary judgment under CPLR 3212 against the answering defendants. Similarly, to obtain a default judgment against the non-appearing defendants American Transit is required to provide proof (such as an affidavit) of all the facts necessary to establish its prima facie entitlement to relief. (See CPLR 3215 [f]; Matter of Dyno v Rose, 260 AD2d 694, 698 [3d Dept 1999].) American Transit has not met that requirement here, and thus is not entitled to default judgment, either.

Accordingly, it is hereby

ORDERED that the branch of American Transit’s motion seeking summary judgment under CPLR 3212 against the answering defendants is denied; and it is further

ORDERED that the branch of American Transit’s motion seeking default judgment under CPLR 3215 against the non-appearing defendants is denied.

Date: 5/27/20