Reported in New York Official Reports at Matter of Countrywide Ins. Co. v DHD Med., P.C. (2011 NY Slip Op 05864)
| Matter of Countrywide Ins. Co. v DHD Med., P.C. |
| 2011 NY Slip Op 05864 [86 AD3d 431] |
| July 7, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| In the Matter of Countrywide Insurance Company,
Appellant, v DHD Medical, P.C., Respondent. |
—[*1]
Ruskin Moscou Faltischek, P.C., Uniondale (Matthew F. Didora of counsel), for
respondent.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 30, 2010, which denied the petition to stay arbitration of claims for no-fault insurance benefits and granted respondent’s cross motion to dismiss the proceeding, unanimously affirmed, with costs.
Petitioner argues that respondent is a fraudulently incorporated medical services provider and therefore is not only ineligible for reimbursement of no-fault payments (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) but is also precluded from demanding arbitration pursuant to Insurance Law § 5106 (b) (and the no-fault policy issued by petitioner). Contrary to this argument, the defense of fraudulent incorporation is “for the arbitrator and not for the courts” (see Matter of Nassau Ins. Co. v McMorris, 41 NY2d 701, 701 [1977]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Indeed, it has been the subject of numerous arbitration proceedings (see e.g. State Farm Mut. Auto. Ins. Co. v Kissena Med. Imaging, P.C., 25 Misc 3d 1214[A], 2009 NY Slip Op 52094[U] [2009]; Uptodate Med. Serv., P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 128[A], 2009 NY Slip Op 50046[U], *2 [2009]).
We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Andrias, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.
Reported in New York Official Reports at Utica Mut. Ins. Co. v Bleeker (2011 NY Slip Op 51076(U))
| Utica Mut. Ins. Co. v Bleeker |
| 2011 NY Slip Op 51076(U) [31 Misc 3d 150(A)] |
| Decided on June 10, 2011 |
| Appellate Term, First Department |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
571029/10.
against
Rhondi Bleeker, Defendant-Appellant, – and – Chase Manhattan Auto Finance Corporation, Defendant.
Defendant Rhondi Bleeker appeals from that portion of an order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated June 7, 2010, which denied her motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Manuel J. Mendez, J.), dated June 7, 2010, insofar as appealed from, modified to the extent of granting defendant-appellant partial summary judgment dismissing plaintiff’s cause of action for medical expenses it paid on behalf of its subrogor and so much of the complaint as sought recovery of the initial $5,200 in workers’ compensation payments made to the subrogor; as modified, order affirmed, without costs.
In this subrogation action, plaintiff insurer seeks reimbursement for, inter alia, medical expenses and workers’ compensation benefits paid in lieu of first-party no-fault benefits to its subrogor for injuries he sustained as a result of an automobile accident with defendant, which occurred in New York during the course of subrogor’s employment. Since plaintiff provided a workers’ compensation insurance policy to subrogor’s employer, Knorr Brake Corporation, a Maryland-based company, subrogor initially received temporary benefits processed by Maryland’s Workers’ Compensation Commission. Ultimately, however, subrogor, as a New Jersey resident, successfully pursued his additional and final workers’ compensation benefits with the New Jersey Division of Workers’ Compensation.
Following discovery, defendant Rhondi Bleeker moved for summary judgment dismissing plaintiff’s complaint on the grounds that choice of law principles dictate this action to be governed, and consequently barred, by New Jersey and New York laws. Plaintiff cross-moved for partial summary judgment, countering, inter alia, that Maryland law governed. In the order appealed from, Civil Court denied defendant’s motion and plaintiff’s cross motion for [*2]summary judgment, while agreeing with plaintiff that Maryland law applied, thus permitting the continuation of this action. We modify.
While Civil Court properly determined that the law and forum where workers’ compensation benefits were paid will govern an action for reimbursement of those benefits (see New Jersey Mfrs. Ins. Co. v Steckert, 264 AD2d 314, 315 [1999], citing Matter of O’Connor, 21 AD2d 333, 335 [1964]; see Carminucci v Pepsico, Inc., 236 AD2d 499, 501 [1997]; Canfield v Child World, 209 AD2d 569, 569-570 [1994]), and that under Maryland’s Workers’ Compensation Act, an insurer is entitled to assert a subrogation claim for reimbursement of benefits paid (see Podgurski v OneBeacon Ins. Co., 374 Md 133, 140 [Md Ct of Appeals 2003]), Civil Court erred in concluding that this action is governed by the law of Maryland.
To the contrary, the record indicates and it is undisputed that plaintiff’s subrogor ultimately pursued his claim with the New Jersey Division of Workers’ Compensation, which culminated in an award approving the parties’ “settlement” of the claim based upon a “finding” that “the terms of the settlement are fair and just,” and awarding him permanent disability benefits and deeming the temporary disability awarded in Maryland and medical bills “adequate as p[ai]d.” Since subrogor invoked New Jersey’s Workers’ Compensation provisions for an adjudication of his claim and received a final award thereunder, this action is governed by the law of the State of New Jersey (see Williams v A & L Packing and Storage, 314 NJ Super 460, 465-466 [NJ App Div 1998]; Phillips v Oneida Motor Freight, Inc., 163 NJ Super 297, 305 [NJ App Div 1978]; see also Cramer v State Concrete Corp.,39 NJ 507, 511 [NJ 1963]).
Applying New Jersey law to the instant matter, most of plaintiff’s subrogation claims fail. Although New Jersey law authorizes an employer to institute an action against a responsible tortfeasor if the injured person does not do so, “the third party shall be liable only to the same extent as he would have been liable had the employee himself instituted suit within a year of the accident” (Patterson v Adventure Trails, 364 NJ Super 444, 447 [NJ Super 2003], quoting Continental Ins. Co. v McClelland, 288 NJ Super 185, 189-190 [NJ App Div 1996]). As such, plaintiff’s subrogation claim for medical expenses in the principal sum of $7,884.97, and workers’ compensation payments up to the sum of $5,200, that would otherwise have been collectible under a standard personal injury protection endorsement covering the subject loss (see NJSA 39:6A-4; see also Rutgers Cas. Ins. Co. v Ohio Cas. Ins. Co., 153 NJ 205, 210 [NJ 1998]), cannot be recovered against defendant (see Patterson v Adventure Trails, 364 NJ Super at 447). Accordingly, defendant’s motion for summary judgment dismissing these claims should have been granted only to the extent provided.
However, the record is inconclusive as to plaintiff’s entitlement to reimbursement for disability payments, if any, in excess of the above stated sum of $5,200 (see e.g. NJSA 39:6A-10), and resolution of this issue must await a more fully developed record.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: June 10, 2011
Reported in New York Official Reports at Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 50751(U))
| Excel Radiology Serv., P.C. v Utica Mut. Ins. Co. |
| 2011 NY Slip Op 50751(U) [31 Misc 3d 138(A)] |
| Decided on April 28, 2011 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through May 11, 2011; it will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Schoenfeld, Torres, JJ
571044/10.
against
Utica Mutual Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 7, 2010, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), entered June 7, 2010, affirmed, with $10 costs.
In this action to recover first-party no-fault medical benefits, defendant’s motion for summary judgment was properly denied since it failed to establish, prima facie, that the notices of the independent medical examinations (IMEs) were properly mailed to the assignor and that he failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]; cf. Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [2005]). Given defendant’s failure to meet its burden, denial of its motion was required regardless of the sufficiency of plaintiff’s opposition papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 28, 2011
Reported in New York Official Reports at Stephen Matrangalo, DC, PC v Allstate Ins. Co. (2011 NY Slip Op 50517(U))
| Stephen Matrangalo, DC, PC v Allstate Ins. Co. |
| 2011 NY Slip Op 50517(U) [31 Misc 3d 129(A)] |
| Decided on April 5, 2011 |
| Appellate Term, First Department |
| 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. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, Jr., J.
570684/10
against
Allstate Insurance Company, Defendant-Respondent.
Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated June 10, 2010, which granted defendant’s motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Debra Rose Samuels, J.), dated June 10, 2010, reversed, without costs, motion denied and complaint reinstated.
Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a “financial relationship” with plaintiff (see Public Health Law § 238-a[1][a], [b]). Civil Court granted the motion, and we now reverse.
Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a “financial relationship” with the health care provider (Public Health Law § 238-a[1][a]). A “financial relationship” is defined in section 238(3) of the Public Health Law as “an ownership interest, investment interest or compensation arrangement.” Critically, a “compensation arrangement” means “any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider” (Public Health Law § 238-a[5][a]), but does not include “payments for the rental or lease of office space” if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[5][b][i]).
The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any “financial relationship” between plaintiff and the referring practitioner. No allegation is made that there was any “ownership interest” or “investment interest” between [*2]plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 — two years prior to the underlying referral — defendant’s limited submission failed to establish that there was any “compensation arrangement” in general or any “payments for the rental or lease of office space” in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff’s opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011
Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))
| Devonshire Surgical Facility v American Tr. Ins. Co. |
| 2011 NY Slip Op 50513(U) [31 Misc 3d 129(A)] |
| Decided on April 5, 2011 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through April 12, 2011; it will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570946/10.
against
American Transit Insurance Company, Defendant-Respondent.
Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 5, 2008, which denied their motion for summary judgment in the principal sum of $9,902.18.
Per Curiam.
Order (Arlene P. Bluth, J.), dated June 5, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $6,902.18, and plaintiff Devonshire Surgical Facility in the principal sum of $3,000. The Clerk is directed to enter judgment accordingly.
In this action to recover assigned first-party no-fault benefits, plaintiff Devonshire Surgical Facility established its prima facie entitlement to summary judgment on its claim for $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C., established its entitlement to summary judgment on its claim for $6,902.18 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).
In opposition, defendant failed to raise a triable issue of fact. Even assuming that defendant
issued timely denials of plaintiffs’ claims (see Country-Wide Ins. Co. v Zablozki, 257
AD2d 506 [1999], lv denied 93 NY2d 809 [1999]), the peer review report relied upon by
defendant to deny plaintiffs’ claims is conclusory and fails to set forth sufficient facts to raise
triable issues with respect to its defense of lack of medical necessity (see East Coast Acupuncture Servs., P.C. v
American Tr. Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50213[U][2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
[*2]
Decision Date: April 05, 2011
Reported in New York Official Reports at Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50512(U))
| Devonshire Surgical Facility v American Tr. Ins. Co. |
| 2011 NY Slip Op 50512(U) [31 Misc 3d 128(A)] |
| Decided on April 5, 2011 |
| Appellate Term, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through April 12, 2011; it will not be published in the printed Official Reports. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570945/10.
against
American Transit Insurance Company, Defendant-Respondent.
Plaintiffs appeal from an order of the Civil Court of the City of New York, New York County (Arlene P. Bluth, J.), dated June 4, 2008, which denied their motion for summary judgment on the complaint.
Per Curiam.
Order (Arlene P. Bluth, J.), dated June 4, 2008, reversed, without costs, and summary judgment is granted in favor of plaintiff Devonshire Surgical Facility in the principal sum of $3,000, and plaintiff Carnegie Hill Orthopedic Services, P.C. in the principal sum of $11,929.08. The Clerk is directed to enter judgment accordingly.
In this action to recover assigned first-party no-fault benefits, plaintiffs Carnegie Hill Orthopedic Services, P.C. and Devonshire Surgical Facility established their prima facie entitlement to summary judgment on their respective claims for $11,929.08, and $3,000 (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Specifically, defendant’s documentary submissions established its receipt of plaintiffs’ claims and that the claims were overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]; Devonshire Surgical Facility v American Tr. Ins. Co., 27 Misc 3d 137[A], 2010 NY Slip Op 50867[U] [2010]).
In opposition to the plaintiffs’ motion for summary judgment, defendant, which was
precluded under a so-ordered stipulation from offering certain evidence pertaining to its defense
of lack of medical necessity (see Wilson
v Galicia Contr. & Restoration Corp., 10 NY3d 827, 830 [2008]), failed to raise a triable
issue of fact (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d at 743;
Devonshire Surgical Facility, supra). Accordingly, plaintiffs were entitled to
judgment in their favor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 05, 2011
Reported in New York Official Reports at Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50473(U))
| Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co. |
| 2011 NY Slip Op 50473(U) [31 Misc 3d 128(A)] |
| Decided on March 29, 2011 |
| Appellate Term, First Department |
| 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. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
571027/10.
against
New York Central Mutual Fire Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered on or about December 10, 2009, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Raul Cruz, J.), entered on or about December 10, 2009, reversed, without costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.
In this action to recover assigned first-party no-fault benefits, defendant’s documentary submissions established prima facie, that it duly mailed the notices of the independent medical examinations (IMEs) to the assignor and that the assignor failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In opposition, plaintiff failed to raise a triable issue regarding the reasonableness of the requests or the assignors’ failure to attend the IMEs (see Inwood Hill Med. P.C. v General Assur. Co., 10 Misc 3d 18, 20 [2005]; Marina v Praetorian Ins. Co., 28 Misc 3d 132[A], 2010 NY Slip Op 51292[U] [2010]). Plaintiff’s contention that defendant failed to prove the mailing of the IME notices to the assignor’s attorney is unavailing absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: March 29, 2011
Reported in New York Official Reports at Allstate Ins. Co. v DeMoura (2011 NY Slip Op 50430(U))
| Allstate Ins. Co. v DeMoura |
| 2011 NY Slip Op 50430(U) [30 Misc 3d 145(A)] |
| Decided on March 24, 2011 |
| Appellate Term, First Department |
| 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. |
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., J.
570324/10
against
Alexandre DeMoura a/a/o Miriam Cruceta, Respondent-Respondent.
| MARCH 24, 2011 | ||||||||
| SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT | ||||||||
| June 2010 Term |
Petitioner appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), dated March 16, 2009, which denied its petition to vacate an arbitration award in favor of respondent awarding him unpaid no-fault benefits in the principal sum of $11,170.42, and granted respondent’s cross petition to confirm the arbitration award.
Per Curiam.
Order (Tanya R. Kennedy, J.), dated March 16, 2009, reversed, without costs, and matter remanded to Civil Court for a framed issue hearing regarding whether the $50,000 limit of the subject insurance policy was exhausted before petitioner-insurer was obligated to pay respondent’s claim.
When an insurer “has paid the full monetary limits set forth in the policy, its duties under the contract of insurance cease” (Countrywide Ins. Co. v Sawh, 272 AD2d 245 [2000]). A defense that the coverage limits of the policy have been exhausted may be asserted by an insurer despite its failure to issue a denial of the claim within the 30-day period (New York & Presby. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]), and an arbitrator’s award directing payment in excess of the $50,000 limit of a no-fault insurance policy exceeds the arbitrator’s power and constitutes grounds for vacatur of the award (see Matter of Brijmohan v State Farm Ins. Co., 92 NY2d 821, 822 [1998]; Countrywide Ins. Co. v Sawh, 272 AD2d at 245; 11 NYCRR 65-1.1). Moreover, as petitioner-insurer correctly argues, such error “will not be waived if the party relying on it asserts it . . . in opposition to an application for confirmation” (Matter of Brijmohan v State Farm Ins. Co., 92 NY2d at 822).
Here, petitioner’s submissions on its motion to vacate the arbitration award and in opposition to respondent’s cross motion to confirm the award raised a triable issue of fact regarding whether the $50,000 policy limit had been exhausted before payment could be made to respondent on its claim (see 11 NYCRR 65-3.15). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.
We note that petitioner’s remaining arguments are without merit.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. [*2]
I concurI concur
Decision Date: March 24, 2011
Reported in New York Official Reports at Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948)
| Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC |
| 2011 NY Slip Op 01948 [82 AD3d 559] |
| March 17, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| Unitrin Advantage Insurance Company,
Respondent, v Bayshore Physical Therapy, PLLC, et al., Defendants, and Martin Bassiur, DDS, Doing Business as NY Craniofacial Pain Management, et al., Appellants. |
—[*1]
Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for
respondent.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 1, 2010, which denied defendants-appellants’ motion for summary judgment dismissing the complaint, granted plaintiff’s cross motion for summary judgment on the complaint, and declared that plaintiff does not owe coverage for the no-fault claims allegedly assigned to defendants, unanimously affirmed, without costs.
The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants’ assignors’ failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). The failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonably require” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). Accordingly, 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 (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Stephen Fogel Psychological, 35 AD3d at 721-722).
It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).
There is likewise no merit to defendants’ contention that the IME request notices were [*2]invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 [2007]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).
Defendants’ argument that plaintiff was required to demonstrate that the assignors’ failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]), applies in the context of liability policies, and has no application in the no-fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).
Defendants’ argument that all IMEs must be conducted by physicians is unavailing. Although Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) states that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require,” the regulations permit reimbursement for medically necessary treatment services that are rendered by nonphysicians, such as chiropractors and acupuncturists, as well (see Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 22 Misc 3d 978, 979-980 [2008]). We have considered defendants’ remaining contentions and find them unavailing. Concur—Andrias, J.P., Saxe, Friedman, Moskowitz and Richter, JJ. [Prior Case History: 2010 NY Slip Op 31936(U).]
Reported in New York Official Reports at M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. (2011 NY Slip Op 01333)
| M.N. Dental Diagnostics, P.C. v Government Empls. Ins. Co. |
| 2011 NY Slip Op 01333 [81 AD3d 541] |
| February 22, 2011 |
| Appellate Division, First Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| M.N. Dental Diagnostics, P.C., as Assignee of Daniel Burgos,
Respondent, v Government Employees Insurance Company, Appellant. |
—[*1]
Order of the Appellate Term of the Supreme Court in the First Judicial Department, entered June 24, 2009, which affirmed an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about February 15, 2007, finding the issue of which insurer is the primary insurer must be submitted to arbitration, unanimously affirmed, with costs.
Insurance Law § 5105 (b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12 (b) provides that “[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part.”
Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not “otherwise . . . liable” for the payment of first-party benefits. However, 11 NYCRR 65-4.11 (a) (6) provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” Thus, as “the first insurer to whom notice of claim [was] given” (11 NYCRR 65-3.12 [b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which “[c]learly . . . is an inter-company dispute subject to mandatory arbitration” (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). Concur—Saxe, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ. [Prior Case History: 24 Misc 3d 43.]