Opinion
Index No. 158270/2021
04-04-2024
State Farm Fire and Casualty Company, Plaintiff, v. Atlantic Diagnostic, L.L.C. et al., Defendants.
Rubin, Fiorella, Friedman & Mercante LLP, New York, NY (David F. Boucher, Jr. of counsel), for plaintiff. Kopelevich & Feldsherova, P.C., Brooklyn, NY (Mikhail Kopelevich of counsel), for defendant Tristate Psychological Services, P.C. Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants BL Pain Management, P.L.L.C., Community Physical Therapy Rehab PT, P.C., and Grand Medical Supply Corp.
Unpublished Opinion
Rubin, Fiorella, Friedman & Mercante LLP, New York, NY (David F. Boucher, Jr. of counsel), for plaintiff.
Kopelevich & Feldsherova, P.C., Brooklyn, NY (Mikhail Kopelevich of counsel), for defendant Tristate Psychological Services, P.C.
Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak of counsel), for defendants BL Pain Management, P.L.L.C., Community Physical Therapy Rehab PT, P.C., and Grand Medical Supply Corp.
GERALD LEBOVITS, J.
The following e-filed documents, listed by NYSCEF document number (Motion 002) 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97 were read on this motion for SUMMARY JUDGMENT.
In this no-fault-insurance-coverage action, plaintiff, State Farm Fire & Casualty Company, moves under CPLR 3212 for summary judgment against defendants BL Pain Management, P.L.L.C., Community Physical Therapy Rehab PT, P.C., Tristate Psychological Services, P.C., and Grand Medical Supply Corp., each a medical-provider assignee of the alleged injured person, defendant Shimin O. Brown. The motion is granted.
Plaintiff contends that it properly denied coverage because Brown failed to sign and return a copy of the transcript of his examination under oath, at which he appeared on plaintiff's request. This court agrees.
The mandatory endorsement implied into all no-fault policies in New York, found at 11 NYCRR 65-1.1, provides that "[n]o action shall lie against the [insurer] unless, as a condition precedent thereto, there shall have been full compliance with the terms of this coverage." One of those requirements is that upon the insurer's reasonable request, the alleged injured person or an assignee must "submit to examinations under oath by any person named by the [insurer] and subscribe the same." The Appellate Division, First Department, has held that a no-fault claimant's "failure to subscribe and return the transcripts of their examinations under oath (EUOs) violated a condition precedent to coverage and warranted denial of the claims." (Kemper Independence Ins. Co. v Cornerstone Chiropractic, P.C., 185 A.D.3d 468, 468 [1st Dept 2020].) And the denial of a claim on the ground of failure to comply with a condition precedent to coverage is not subject to preclusion for untimeliness. (See Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 560 [1st Dept 2011].)
There is room for considerable doubt that the First Department is correct to conclude that failure to sign and return an EUO transcript-or failure to appear for an EUO or medical examination-breaches a condition precedent to coverage. The language of the mandatory endorsement quoted above does not say, after all, that compliance with the terms of the endorsement is a condition precedent to coverage. Rather, it describes compliance as a condition precedent to suit. In other words, as the Fourth Department has held in declining to follow First Department precedent in this area, "failure to appear at a reasonably requested EUO" is better understood as "constitut[ing] a breach of an existing policy condition," thereby giving rise to a defense to a claim, or a suit, on the policy. (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 A.D.3d 192, 197 [4th Dept 2018].) That ground for denying a claim "is distinguishable from lack of coverage in the first instance." (Id.) Nevertheless, this court is in the First Department, not the Fourth Department. This court may not disregard the First Department's consistent, repeated rulings since 2011 that compliance with the obligations imposed by the mandatory endorsement constitute conditions precedent to coverage.
Cornerstone Chiropractic, though, addressed a scenario in which the insurer had also established as a matter of law that it was entitled to deny the claims at issue for failure to appear at two scheduled EUOs. (See 185 A.D.3d at 469.) Here, however, as defendant Tristate points out (see NYSCEF No. 87 at 5-6), plaintiff has not established that it timely requested the EUO at which Brown appeared. The question is whether that absence of proof matters for purposes of the transcript-signature requirement. This court has not found, and the parties have not provided, any appellate authority on this question. Tristate, relying on a decision of Supreme Court, argues that the absence of proof matters in this context. (See id. at 5, 10, citing Unitrin Advantage Ins. Co. v ABA Chiropractic, P.C., 2020 NY Slip Op 32236[U], at *2 [Sup Ct, NY County 2020].) This court concludes that it does not.
To make that timeliness showing, plaintiff would have to show that it sent Brown the first EUO request no later than 15 days after receiving an NF-3 medical bill from one of Brown's treating providers. (See 11 NYCRR 65-3.5 [b].) That showing, in turn, would require plaintiff to submit copies of one or more NF-3s. (See American Tr. Ins. Co. v Alcantara, 203 A.D.3d 535, 536 [1st Dept. 2022].) Plaintiff has not done so on this motion.
If plaintiff did not timely ask Brown to appear for an EUO, he was not required to appear; and any resulting nonappearance would not be a ground to deny his no-fault claim (or those of his assignees). But Brown, who was represented by counsel, did appear for his EUO. (See NYSCEF No. 80 at 1-2 [EUO transcript].) Given Brown's choice to appear and give testimony, plaintiff had the power under the policy to require Brown to review and sign the transcript of his testimony for later use. On Tristate's position, the testimony and the signature are not tied together: If plaintiff could not require the testimony, it could not require the signature, either. But that position entails treating Brown's choice-in effect, to waive his right not to give deposition testimony-as irrelevant to the scope of any related obligations under the policy. It is unclear why that should be so. Nor does Tristate provide any reason why that rule would make sense. To the contrary, the logic of the transcript-signature requirement is that having appeared and given testimony, a claimant must also take basic steps to enable the transcript of the testimony to be introduced as evidence in a later arbitral or judicial proceeding. That logic would hold whether or not the claimant's appearance was obligatory under the policy.
Always assuming, of course, that the EUO request was, in fact, untimely. As noted above, the court lacks enough information on this record to tell one way or the other.
The court concludes, therefore, that under the First Department's precedents, a failure by Brown to sign his EUO transcript on request by plaintiff would breach a condition precedent to coverage under the no-fault policy. The court further concludes that plaintiff's papers on this motion, including the affirmation of the attorney who supervised the process of sending the post-EUO requests that Brown sign and return the enclosed transcript (see NYSCEF No. 73 at 2-4), along with copies of the request letters and affidavits of mailing (see NYSCEF No. 82), establishes prima facie that Brown failed or refused to sign the transcript as requested. Tristate does not provide contrary evidence that might create a material dispute of fact.
There is also no merit to the argument of defendants BL Pain Management, Community Physical Therapy, and Grand Medical Supply that granting summary judgment would be premature under CPLR 3212 (f) because necessary discovery remains to be taken. (See NYSCEF No. 93 at 15-20.) These defendants served discovery requests when they filed their answer, in November 2021. (See NYSCEF No. 29 [answer]; NYSCEF Nos. 30-31 [discovery demands].) The docket contains no indication that these defendants took steps between December 2021 and the filing of this motion in 2023 to require plaintiff to provide responses to their discovery requests. Plaintiff's summary-judgment motion is not premature in these circumstances. (See Country-Wide Ins. Co. v Duff, 2022 NY Slip Op 51289[U], at *2 [Sup Ct, NY County 2022].)
The court notes with disfavor that the lengthy, repetitious affirmation submitted by counsel for BL Pain Management, Community Physical Therapy, and Grand Medical Supply is almost entirely generic and boilerplate, and appears to have been prepared using a fill-in-the-blank macro. (See NYSCEF No. 93.) Submitting papers of this kind appears to be this particular counsel's typical practice in no-fault litigation. Proceeding in this manner is helpful neither to the court nor to counsel's clients.
Plaintiff's summary-judgment motion is granted.
Settle Order.