Country-Wide Ins. Co. v Henderson (2022 NY Slip Op 51304(U))

Index No. 656455/2022

Law Office of Jaffe & Velazquez, LLP, New York, NY (Carl J. Gedeon of counsel), for plaintiff.

Rybak Law Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants Lifeline Medical Imaging, P.C. and 334 Grand Concourse Medical, P.C.

No appearance for defendant Autumn PT, P.C.

In this no-fault-insurance-coverage action, plaintiff, Country-Wide Insurance Company, moves for summary judgment under CPLR 3212 against defendants Lifeline Medical Imaging, P.C., Autumn PT, P.C., and 334 Grand Concourse Medical, P.C., all medical-provider assignees of the eligible injured person (defendant Steven Henderson) that have appeared in this action. Lifeline Medical and 334 Grand Concourse (represented by the same counsel) have filed opposition papers. Autumn PT has not. The summary-judgment motion is denied without prejudice.

Country-Wide seeks a declaration of no coverage on the ground that Henderson failed twice to appear for duly scheduled examinations under oath (EUOs), vitiating coverage both for himself and for his assignees. In opposition, Lifeline Medical/334 Grand Concourse (opposing defendants) raise three main categories of arguments: (i) Country-Wide has not shown the EUOs were timely and properly scheduled; (ii) Country-Wide has not provided sufficient justification for having requested the EUOs; and (iii) Country-Wide moved for summary judgment prematurely before defendants could obtain discovery.

This court disagrees with the arguments made by opposing defendants with respect to the timeliness of Country-Wide’s EUO requests. As this court recently observed, many of those arguments are foreclosed by existing Appellate Division precedent (see Country-Wide Ins. Co. v Duff, 2022 NY Slip Op 51289[U], at *1 [Sup Ct, NY County Dec. 20, 2022]); and the remaining arguments are unpersuasive.

The court reaches a different conclusion about the issue of Country-Wide’s justification for asking Henderson to appear for EUOs. The governing regulations provide that a no-fault insurer must have a “specific objective justification supporting the use of such examination.” (11 NYCRR 65-3.5 [e].) If a medical-provider assignee defending a no-fault-coverage action questions whether the insurer had a proper basis for seeking the EUO, the insurer must identify its justification for the EUO request;^[FN1] in the “absence of any justification for the EUO,” the insurer cannot “establish, as a matter of law, that it complied with the governing regulations.” (Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 474 [1st Dept 2022]; accord Kemper Independence Ins. Co. v AB Med. Supply, Inc., 187 AD3d 671, 671 [1st Dept 2020].)

The affidavit of Country-Wide’s no-fault supervisor (Jessica Mena-Sibrian), submitted as part of Country-Wide’s opening motion papers, offers two justifications for seeking Henderson’s EUO: (i) “material facts surrounding the accident required clarification”; and (ii) “there is also a lapse of time between the date of the accident and the time the claimant first seeks treatment.” (NYSCEF No. 27 at ¶ 10.) The conclusory assertion that Country-Wide needed clarification about the facts of the accident, with no indication of what facts needed to be clarified, or why, is not sufficient. (See Country-Wide Ins. Co. v Delacruz, 71 Misc 3d 247, 251-252 [Sup Ct, NY County 2021], affd 205 AD3d 473.)

With respect to the lapse of time asserted by the Mena-Sibrian affidavit, that affidavit does not identify the basis of her knowledge for that assertion. Nor do the documents submitted by Country-Wide remedy this gap. At most, Country-Wide has provided the NF-3 treatment bills on which it relies to establish the timeliness of its EUO request, which reflect that approximately nine weeks elapsed between the date of the accident and the dates of treatment for which payment was being sought. (See NYSCEF NO. 30 at 1-2.) But Country-Wide has not shown that those bills were the first NF-3 forms it received from one of Henderson’s treating providers, or that the dates of service on the NF-3 bills submitted by Country-Wide were the earliest dates of treatment. Additionally, Country-Wide’s attorney affirmation submitted on reply, professing to rely on the Mena-Sibrian affidavit, offers an entirely different set of justifications, namely that “medical or lost earnings claim is extensive, but collision is a minor impact with minimal property damage to vehicles,” and that the “police report indicated no one involved sustained any injury and/or medical treatment at scene was refused.”^[FN2] (NYSCEF No. 71 at ¶ 39.) Given Country-Wide’s failure on this motion to identify and document a consistent justification for its EUO request, Country-Wide is not entitled on this record to summary judgment.

For similar reasons, this court agrees with opposing defendants that Country-Wide’s summary-judgment motion must be denied under CPLR 3212 (f) as premature. The record reflects that Country-Wide moved for summary judgment only two months after opposing defendants filed their answer and served discovery requests, without Country-Wide’s having provided the discovery being sought. (See NYSCEF Nos. 13 [discovery request], 34 [notice of motion].) The “reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion” that is “exclusively within the knowledge and control of the movant.” (American Tr. Ins. co. v Jaga Med. Servs., P.C., 128 AD3d 441, 441 [1st Dept 2015].) As a result, a summary-judgment motion brought before the insurer has responded to a discovery request seeking that reason—as true here—is premature. (AB Med. Supply, 187 AD3d at 671; accord Delacruz, 205 AD3d at 473.)

As noted above, defendant Autumn PT has not opposed Country-Wide’s summary-judgment motion. At the same time, this court’s conclusion that the summary-judgment motion is premature and that defendants must be afforded a sufficient opportunity to obtain discovery from Country-Wide applies equally to Autumn PT as to the opposing defendants. Country-Wide’s request for summary judgment is therefore denied as against Autumn PT, in addition to opposing [*2]defendants (Lifeline Medical and 334 Grand Concourse).

Accordingly, it is

ORDERED that Country-Wide’s motion for summary judgment is denied without prejudice; and it is further

ORDERED that Country-Wide serve a copy of this order with notice of its entry on Lifeline Medical, 334 Grand Concourse, and Autumn PT.

Footnotes

Footnote 1:The assignee may raise the issue of the insurer’s EUO justification whether or not the eligible-injured-person assignor asked the insurer to provide that justification when the insurer first noticed the assignor’s EUO. (See Country-Wide Ins. Co. v Delacruz, 205 AD3d 473, 474 [1st Dept 2022].) Country-Wide’s assertion that any objection to the basis for the EUO has been waived is thus foreclosed by Appellate Division precedent. (See NYSCEF No. 71 at ¶ 58.) And that a no-fault insurer “need not provide a copy of its internal guidelines for requesting an EUO” (id. at ¶ 57) does not excuse the insurer from making “a more limited disclosure of the specific facts that, applied to those internal standards in a given case, prompted the insurer to request an EUO.” (Kemper Independence Ins. Co. v Accurate Monitoring, LLC, 73 Misc 3d 585-590 [Sup Ct, NY County 2021] [internal quotation marks omitted].)

Footnote 2:Country-Wide has not submitted the police report on this motion.