August 15, 2022
American Tr. Ins. Co. v Ferguson (2022 NY Slip Op 50757(U))
Headnote
Reported in New York Official Reports at American Tr. Ins. Co. v Ferguson (2022 NY Slip Op 50757(U))
| American Tr. Ins. Co. v Ferguson |
| 2022 NY Slip Op 50757(U) [75 Misc 3d 1238(A)] |
| Decided on August 15, 2022 |
| Supreme Court, New York County |
| Lebovits, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on August 15, 2022
Supreme Court, New York County
American Transit
Insurance Company, Plaintiff,
against Nadine Ferguson, ALL CITY FAMILY HEALTHCARE CENTER, INC., ALPHA CHIROPRACTIC P.C., ASTORIA ORGANIX PHARMACY, INC., ATB SERVICES INC, BEACH MEDICAL REHABILITATION P.C., BIRCH MEDICAL & DIAGNOSTIC, P.C, BROOKLYN RADIOLOGY SERVICES, P.C., DOLPHIN FAMILY CHIROPRACTIC P.C., DR. SIMEON ISAACS, EXCELL CLINICAL LAB, INC., HEALTHWAY MED EQUIPMENT, HMP ORTHOPAEDICS, P.C., ISURPLY LLC, METRO PAIN SPECIALISTS P.C., MIDWOOD SURGICAL SUPPLIES, INC., MOLNAR MEDICAL SERVICES PC, NYC CARE CHIROPRACTIC P.C., NYC MADISON AVENUE MEDICAL P.C., NEW YORK PRESBYTERIAN HOSPITAL, OMEGA ACUPUNCTURE P.C., PARK SLOPE EMERGENCY PHYSICIAN SERVICE, P.C., PRC SUPPLIES INC., RGW CHIROPRACTIC DIAGNOSTICS P.C., SEDATION VACATION PERIOPERATIVE MEDICINE PLLC, SKY RADIOLOGY P.C., SPRUCE MEDICAL & DIAGNOSTIC, P.C., TIELING ACUPUNCTURE, P.C., TRANQUILITY PHYSICAL THERAPY & ACUPUNCTURE PLLC, TRUE HEALTH PHARMACY INC., UNICAST, INC, WELLNESS PHYSICAL THERAPY P.C., and YBD UNIVERSAL CORP, Defendants. |
Index No. 157406/2021
Law Office of Daniel J. Tucker, Brooklyn, NY (Fotini Lambrianidis of counsel), for plaintiff.
No appearance for defendants.
Gerald Lebovits, J.In this no-fault-insurance coverage action, plaintiff American Transit Insurance Company moves without opposition for default judgment against the alleged injured person, defendant Nadine Ferguson, and a number of Ferguson’s medical-provider assignees who have not appeared in this action. The motion is denied.
The information provided in American Transit’s motion papers does not establish that it satisfied the timeliness requirements of the applicable no-fault regulations, as required to obtain default or summary judgment. (See American Tr. Ins. Co. v Alcantara, 203 AD3d 535, 536 [1st Dept. 2022].) Ferguson’s counsel notified American Transit of the underlying collision in March 2019 (see NYSCEF No. 16 at 5); and the record suggests that Ferguson also submitted an NF-2 benefits application to American Transit in April 2019 (see id. at 1). American Transit sent Ferguson requests to appear for an independent medical examination (IME) on August 26, 2019, and September 11, 2019. (See NYSCEF No. 18 [scheduling letters]; NYSCEF No. 14 at 4-10 [affidavits attesting to generation and transmittal of scheduling letters].) But American Transit has not established when the IME requests were sent relative to American Transit’s receipt of NF-3 verification forms from Ferguson’s medical providers.
The only NF-3 form appearing in the record reflects that it was received by American Transit on November 13, 2019 (NYSCEF No. 19)—a month after the date on American Transit’s denial of claim (see NYSCEF No. 17). Nor has American Transit provided a basis to conclude that it requested Ferguson’s IME before it had received any NF-3 forms in the first place, as would be required to exempt the request from the applicable regulatory timeliness requirements. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [1st Dept 2016].)
In short, American Transit has not demonstrated that it asked Ferguson to appear for an IME before receiving any verification forms from one of her medical providers; or that it requested Ferguson’s IME within 15 days after receiving a verification form as required under 11 NYCRR 65-3.5(b). For the same reason, American Transit has not established that the requested IME was scheduled to be held within 30 calendar days from the receipt of the prescribed verification forms, as required under 11 NYCRR 65-3.5(d). (See Alcantara, 203 AD3d at 536.)
Accordingly, it is
ORDERED that American Transit’s motion for default judgment is denied; and it is further
ORDERED that if American Transit does not file a renewed motion for default judgment against the defaulting defendants within 30 days of entry of this order, the action will be dismissed as against those defendants.
DATE 8/15/2022