Opinion
15306, 15307 Index No. 656140/18, 656207/18 Case No. 2021–02080, 2021-01132
02-15-2022
AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Respondent, v. Moises MARTINEZ et al., Defendants, Burke Physical Therapy PC et al., Defendants–Appellants. American Transit Insurance Company, Plaintiff–Respondent, v. Saleema Watson Bey et al., Defendants, Longevity Medical Supply Inc. et al., Defendants–Appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.
Kern, J.P., Oing, Singh, Moulton, Gonza´lez, JJ.
Order, Supreme Court, New York County (Arlene P. Bluth, J.), entered on or about December 11, 2020 in index No. 656140/18, which granted plaintiff's motion for summary judgment declaring that it need not honor or pay any claims from defendants Burke Physical Therapy, P.C., Columbus Imaging Center, LLC, Metro Pain Specialists, P.C., and Right Aid Medical Supply Corp. in connection with a May 22, 2018 accident, unanimously reversed, on the law, without costs, and the motion denied.
Order, same court and Justice, entered on or about October 6, 2020 in index No. 656207/18, which granted plaintiff's motion for summary judgment declaring that it need not honor or pay any claims from defendants Longevity Medical Supply, Inc., Sanford Chiropractic, P.C., and Verebrae Chiropractic Care, P.C. in connection with an accident that occurred on June 11, 2018, unanimously reversed, on the law, without costs, and the motion denied.
The failure to appear for a properly scheduled independent medical examination (IME) requested by the insurer "when, and as often as, it may reasonably require is a breach of a condition precedent to coverage under the no-fault policy" and vitiates coverage ab initio ( 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 denied 17 N.Y.3d 705, 2011 WL 2535157 [2011] [internal quotations marks, brackets, and citation omitted]). However, to meet its prima facie burden for summary judgment where it has denied a claim for no-fault benefits based on a patient's failure to appear for an IME, the insurer must establish that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations and that the patient did not appear ( American Tr. Ins. Co. v. Longevity Med. Supply, Inc., 131 A.D.3d 841, 841–842, 17 N.Y.S.3d 1 [1st Dept. 2015] ). Because it is impossible to discern from the record in each case here whether plaintiff complied with the requisite time frames requiring it to request IMEs within 15 days of receiving appellants’ claims and scheduling the IMEs for within 30 days of receiving their claims ( 11 NYCRR 65–3.5 [b],[d]), plaintiff failed to establish its prima facie entitlement to summary judgment ( Longevity Med. Supply, 131 A.D.3d at 841–842, 17 N.Y.S.3d 1 ; see Kemper Independence Ins. Co. v. Adelaida Physical Therapy, P.C., 147 A.D.3d 437, 438, 46 N.Y.S.3d 579 [1st Dept. 2017] ).