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In Hereford, the plaintiff had already "submitted competent evidence that the notices scheduling the claimant's medical examinations were mailed, [and that the claimant] fail[ed] to appear[.]"
Summary of this case from Am. Transit Ins. Co. v. MichelOpinion
2013-11-7
AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant, v. Keyana LUCAS, et al., Defendants, Sky Acupuncture, P.C., Defendant–Respondent. American Transit Insurance Company, Plaintiff–Appellant, v. Tashuana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant–Respondent.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant. Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis of counsel), for respondent.
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant. Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis of counsel), for respondent.
MAZZARELLI, J.P., ACOSTA, SAXE, RICHTER, FEINMAN, JJ.
Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff's motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.
The failure to attend duly scheduled medical exams voids the policy ab initio ( see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560, 918 N.Y.S.2d 473 [1st Dept.2011], lv. denied17 N.Y.3d 705, 2011 WL 2535157 [2012] ). Accordingly, when defendants' assignors failed to appear for the requested medical exams, 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]; Unitrin, 82 A.D.3d at 560, 918 N.Y.S.2d 473).
“ ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v. New York City Envtl. Control Bd., 89 A.D.3d 415, 415, 931 N.Y.S.2d 857 [1st Dept.2011] ). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680, 729 N.Y.S.2d 776 [2d Dept.2001] ).
Plaintiff submitted competent evidence that the notices scheduling the claimant's medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee ( see American Tr. Ins. Co. v. Solorzano, 108 A.D.3d 449, 449, 968 N.Y.S.2d 372 [1st Dept.2013] ). Contrary to defendants' contention, the affidavits were not conclusory, as they established personal knowledge, the employee's role in the physician's no-fault department, and the physician's personal knowledge of the office procedures when a claimant failed to appear for a medical exam ( cf. First Help Acupuncture, P.C. v. Lumbermens Mut. Ins. Co., 9 Misc.3d 1127[A], *3, 2005 WL 3001530 [Civ.Ct., Kings County 2005],affd.14 Misc.3d 142[A], 2007 WL 656854 [App. Term, 2d Dept. 2007] ).
There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense ( see New York & Presbyt. Hosp. v. Country–Wide Ins. Co., 17 N.Y.3d 586, 593, 934 N.Y.S.2d 54, 958 N.E.2d 88 [2011];Unitrin Advantage Ins. Co., 82 A.D.3d at 560, 918 N.Y.S.2d 473).