Opinion
Index No. 160355/2020 Motion Seq. No. 002
04-14-2023
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff, v. EQUINOX PHYSICAL THERAPY, P.C., ET AL., Defendants.
Unpublished Opinion
MOTION DATE 11/30/2022
PRESENT: HON. DAVID B. COHEN JUSTICE
DECISION + ORDER ON MOTION
HON. DAVID B. COHEN JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 002) 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 119, 120, 121 were read on this motion to/for _JUDGMENT - SUMMARY.
By notice of motion in this no-fault insurance declaratory judgment action, plaintiff moves for an order granting it summary judgment against defendants Grand Medical Supply Corp., City Wide Health Facility, Inc., 3 Star Acupuncture, P.C., Longevity Medical Supply, Inc., Class Point Acupuncture, PLLC, Metro Pain Specialists Professional Corporation, CMA Psychology, P.C., and Cavallaro Medical Supply, Inc. (collectively, Answering Defendants). Answering Defendants oppose the motion.
Plaintiff contends that it is entitled to a judgment declaring that it need not pay any claims submitted by Answering Defendants for any medical services they provided to claimants Paul Morgan, Christian Paredes, and Kevin Burke, as plaintiff duly requested that claimants appear for examinations under oath (EUOs) and claimants failed to appear, thereby vitiating coverage. Plaintiff also has a founded belief that claimants' injuries did not arise from an insured accident (NYSCEF 85).
Answering Defendants contend that plaintiff failed to establish that its prima facie burden as it did not establish that its EUO requests were timely made or that it timely denied claimants' claims. They also assert that triable issues remain as to whether the accident was an insured incident, and that plaintiffs motion is premature absent the exchange of any discovery (NYSCEF 97, 120).
Pursuant to 11 NYCRR 65-3.5 (b) and (d), an insurer has the right to seek additional verification, including an EUO, if, based on objective standards, it believes that such verification is necessary to establish proof of the claim. Attendance at a timely and properly scheduled EUO is a condition precedent to coverage, and a claimant's failure to appear vitiates coverage (Kamara Supplies v GEICO Gen. Ins. Co., 192 A.D.3d 588, 590 [1st Dept 2021]).
"[T]o 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 [EUO], the insurer must establish that it requested [EUOs] in accordance with the procedures and time frames set forth in the nofault implementing regulations and that the patient did not appear" (American Tr. Ins. Co. v Martinez, 202 A.D.3d 526, 526 [1st Dept 2022]). An insurer generally "must provide proof that the EUO requests were timely mailed, within 15 business days of the receipt of the prescribed verification forms, in compliance with 11 NYCRR 65-3.5" (State Farm Mut. Auto. Ins. Co. v Surgicore of Jersey City. LLC, 195 A.D.3d 454, 455 [1st Dept 2021]). However, the 15-day deadline does not apply if verification, including EUOs, is requested before the claim forms are received (Id. at 455-456).
As plaintiff submits affidavits from people with personal knowledge of the mailing of the EUO letters and of claimants' non-appearance at the EUOs, it satisfies its burden of proving that the letters were mailed and that the claimants failed to appear for their EUOs. (Progressive Cas. Ins. Co. v Metro Psychological Servs., P.C., 139 A.D.3d 693, 694 [2d Dept 2016]; Hertz Corp v Active Care Med. Supply Corp., 124 A.D.3d 411,411 [1st Dept 2015]). Plaintiff also demonstrates that it mailed its EUO notices before it received the claimants' claims, and thus did not have to comply with the 15-day deadline (State Farm, 195 A.D.3d at 455-456 [as claimant failed to appear for EUOs which were requested before plaintiff received claim, plaintiff did not need to show that it complied with 11 NYCRR 63-3.5]).
Moreover, as claimants did not appear at their timely-scheduled EUOS, coverage is vitiated, and plaintiff was not required to deny the claims within the statutory timeframe (PV Holding Corp, v Hank Ross Med.. P.C., 188 A.D.3d 429, 430 [1st Dept 2020]).
Answering Defendants fail to raise any triable issues, and they have not identified what discovery they need to defend themselves here.
In light of this result, there is no need to consider whether plaintiff also established that claimants' injuries did not arise from an insured incident.
As the failure to appear for an EUO constitutes a breach of a condition precedent which vitiates coverage (Mapfre Ins. Co. of N.Y. v Manoo, 140 A.D.3d 468, 470 [1st Dept 2016], citing Hertz Corp, v Active Care Med. Supply. Corp., 124 A.D.3d 411,411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 A.D.3d 618, 618 [1st Dept 2014]), plaintiff is entitled to summary judgment on its declaratory judgment claims against Answering Defendants.
Accordingly, it is hereby
ORDERED, that plaintiffs motion for summary judgment against defendants Grand Medical Supply Corp., City Wide Health Facility, Inc., 3 Star Acupuncture, P.C., Longevity Medical Supply, Inc., Class Point Acupuncture, PLLC, Metro Pain Specialists Professional Corporation, CMA Psychology, P.C., and Cavallaro Medical Supply, Inc. is granted, and plaintiff is directed to submit a proposed order and judgment in accordance with this decision by email to cpaszko@nycourts.gov and e-filing.