Opinion
INDEX NO. 153793/2017
09-20-2019
PV HOLDING CORP., INCLUDING ALL OF ITS SUBSIDIARIES AND AFFILIATES, INCLUDING BUT NOT LIMITED TO AVIS BUDGET, LLC, AVIS CAR RENTAL, LLC, BUDGET CAR RENTAL, LLC, BUDGET TRUCK RENTAL, LLC, PAYLESS CAR RENTAL, INC., AND ZIPCAR, INC., Plaintiff, v. HANK ROSS MEDICAL, P.C., RA MEDICAL SERVICES, P.C., FRANCIS JOSEPH LACINA, M.D., also known as FRANCIS J. LACINA, M.D., CHARLES DENG ACUPUNCTURE, P.C.,CHARLES DENG, L.AC., ACH CHIROPRACTIC, P.C., JULES FRANCOIS PARISIEN, M.D., QUALITY HEALTH SUPPLY CORP., ISLAND LIFE CHIROPRACTIC PAIN CARE, PLLC, QUALITY CUSTOM MEDICAL SUPPLY, INC., IMPULSE IMAGING, P.C.,DR. ELIEZER L. OFFENBACHER, M.D., PLLC, MOHAMMAD HUSSAIN, ROBERT HENRY, AARON HUTCHINSON, RONALD GRACIA, EMMANUEL SUMNER, Defendants.
NYSCEF DOC. NO. 72 PRESENT: HON. JOHN J. KELLEY Justice MOTION DATE 09/17/2019 MOTION SEQ. NO. 002
DECISION + ORDER ON MOTION
The following e-filed documents, listed by NYSCEF document number (Motion 002) 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 69, 70, 71 were read on this motion to/for SUMMARY JUDGMENT(AFTER JOINDER.
In this declaratory judgment action, the plaintiff insurer moves for summary judgment declaring that it is not obligated to reimburse the defendants RA Medical Services, P.C., Francis Joseph Lacina, M.D., also known as Francis J. Lacina, M.D., Charles Deng Acupuncture, P.C., Charles Deng, L. Ac., ACH Chiropractic, P.C., Jules Francois Parisien, M.D., Quality Health Supply Corp., and Island Life Chiropractic Pain Care, P.C. (collectively the health care defendants) for no-fault benefits that they sought in connection with medical treatment and equipment that they provided to Robert Eugene Henry, Aaron Hutchinson, Ronald Gracia, and Emmanuel Sumner (collectively the claimant defendants), who were allegedly injured in a February 16, 2016 motor vehicle accident. The health care defendants oppose the motion. The motion is denied.
By order dated August 13, 2018, this court denied the health care defendants' motion to dismiss the complaint insofar as asserted against them, concluding that the complaint stated a cause of action for declaratory relief and that the actions by the health care defendants to recover no-fault benefits that were pending in the Civil Court did not constitute prior actions pending in which the plaintiff could obtain the same relief. The health care defendants thereafter answered the complaint, and a discovery scheduling order was issued by the court.
It is well settled that the movant on a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). The motion must be supported by evidence in admissible form (see Zuckerman v City of New York, 49 NY2d 557 [1980]), as well as the pleadings and other proof such as affidavits, depositions, and written admissions (see CPLR 3212). The facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 NY3d 499 [2012]; Garcia v J.C. Duggan, Inc., 180 AD2d 579 [1st Dept 1992]). Only where the movant meets its burden does it become incumbent upon the non-moving party to establish the existence of material issues of fact (see Vega v Restani Constr. Corp., 18 NY3d 499 [2012]). A movant's failure to make a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see id.). "The drastic remedy of summary judgment, which deprives a party of his [or her] day in court, should not be granted where there is any doubt as to the existence of triable issues or the issue is even 'arguable'" (De Paris v Women's Natl. Republican Club, Inc., 148 AD3d 401, 403-404 [1st Dept 2017]; see Bronx-Lebanon Hosp. Ctr. v Mount Eden Ctr., 161 AD2d 480 [1st Dept 1990]). Thus, a moving plaintiff does not meet its burden of establishing entitlement to judgment as a matter of law by merely pointing to potential gaps in the defense. It must affirmatively demonstrate the merit of its cause of action (see Koulermos v A.O. Smith Water Prods., 137 AD3d 575 [1st Dept 2016]; Katz v United Synagogue of Conservative Judaism, 135 AD3d 458 [1st Dept 2016]).
Here, the four allegedly injured claimant defendants did not appear before the plaintiff for an Independent Medical Examination (IME) despite two requests made to each of them. Usually, that would vitiate a condition precedent to no-fault coverage both for them and the health care providers from whom they sought treatment or equipment. As the First Department has explained, however, for a no-fault insurer to establish its prima facie entitlement to judgment as a matter of law in a declaratory judgment action on the ground that a claimant failed to appear for an IME or Examination Under Oath (EUO), it must show that it mailed its initial request for verification to the claimant or his/her health care providers within 10 days of receipt of the NF-2 benefits claim form submitted by the claimant (see 11 NYCRR 65-3.5[a]), and mailed an additional request for verification, such as a request for an IME or EUO, within 15 days of receipt of the patient's response to the initial request for verification (see 11 NYCRR 65-3.5[bJ; Hertz Vehs. LLC v Significant Care, PT, P.C., 157 AD3d 600 [1st Dept 2018] see also 11 NYCRR 65-3.6[b] [requiring insurer to reschedule IME by mailing followup notice within 10 days of claimant's nonappearance]).
The demand for an IME constitutes a request for an additional verification (see 11 NYCRR 65-3.5[d]) and, as such, is subject to the requirement that any such request be mailed by an insurer or its agent within 15 days of receipt of the patient's or provider's initial response to the verification request (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437 [1st Dept 2017]; Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; National Liability & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851, 851 [1st Dept 2015]; American Tr. Ins. Co. v Jaga Med. Servs. P.C., 128 AD3d 441, 441 [1st Dept 2015]).
The plaintiff insurer submitted documentation showing that all four claimants dated their NF-2 forms on February 17, 2016, but that it did not mail out its first request for an IME until May 18, 2016, long past the 15-day deadline. It provides no documentation as to when it received those NF-2 forms, if or when it mailed out an initial request for verification, and if or when it received responses to its initial requests for verification so as to trigger the 15-day period. It is the insurer's burden on its summary judgment motion to establish that it timely mailed the IME requests to the claimant defendants. Inasmuch as the plaintiff failed to show that the IME requests were mailed in a timely fashion, its motion for summary judgment must be denied, regardless of the sufficiency of the defendants' opposition papers.
Accordingly, it is
ORDERED that the plaintiff's motion for summary judgment is denied; and it is further,
ORDERED that the parties shall appear for a status conference on November 19, 2019, at 11:00 a.m.
This constitutes the Decision and Order of the court. 9/20/2019
DATE
/s/ _________
JOHN J. KELLEY, J.S.C.