Electrodiagnostic & Physical Med PC v Maya Assur. Co.
Annotate this CaseDecided on October 17, 2014
District Court of Nassau County, First District
Electrodiagnostic & Physical Med PC Assignee of CRISTINA CONDE SEVILLA, Plaintiff(s)
against
Maya Assurance Co., Defendant(s).
CV-016547-13
Israel, Israel & Purdy, LLP, Attorneys for Plaintiff, 11 Grace Avenue, Suite 111, Great Neck, New York 11021, 516-829-0363; DeMartini & Yi, Attorneys for Defendant, 264 Hillside Avenue, Williston Park, New York 11596, 516-294-1333.
Scott Fairgrieve, J.
The following named papers numbered 1 to 4
submitted on this Motion on September 3, 2014
papers numbered
Defendan'ts Notice of Motion and Supporting Documents1Notice of Cross Motion and Supporting Documents2
Defendant's Opposition to Cross Motion3
Affirmation in Reply Papers4
The plaintiff commenced this action seeking to recover $13,152.74 for first-party no-fault benefits for health services provided to its assignor, Christina Conde Sevilla, following a motor vehicle accident which occurred on November 12, 2011. The defendant moves for an order pursuant to CPLR 3212 granting it summary judgment. [*2]The plaintiff opposes the defendant's motion and cross-moves for summary judgment in its favor. The respective motions are decided as follows.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York University Med. Ctr., 64 NY2d 851 [1985]).
Once the movant has demonstrated a prima facie showing of entitlement to judgment, the burden shifts to the party opposing the motion, to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
In a no-fault action, the appearance of an assignee at an examination under oath (hereinafter "EUO") is a condition precedent to an insurer's liability on a policy (see Insurance Department Regulations 11 NYCRR 65-1.1; Viviane Etienne Medical Care, P.C. v State Farm Mutual, 35 Misc 3d 127[A] [2d Dept, 11th & 13th Jud Dists 2012]). In order to make a prima facie showing based upon the failure to appear for an EUO, an insurer is required to show that: (1) the EUO scheduling letters were timely mailed, (2) the date and place of the EUO was not unreasonable, and (3) the assignor failed to appear (see Eagle Surgical v Progressive, 21 Misc 3d 49 [App Term, 2nd & 11th Jud Dists 2008]; Stephen Fogel Psychological, P.C. v Progessive Casualty Insurance Company, 35 AD3d 720 [2d Dept 2006]).
In the case at bar, the defendant seeks summary judgment on 74 claims for physical therapy treatment rendered to the plaintiff's assignor between December 15, 2011 and December 21, 2012, upon the grounds that the defendant failed to appear for two (2) duly scheduled EUO's, and on the basis that the plaintiff's billing exceeded that permitted by the New York State Worker's Compensation Fee Schedule.
In opposition to the defendant's motion and in support of its cross motion, the plaintiff concedes that it overbilled the defendant and that these 74 claims should be reduced according to Ground Rule 11 (see Affirmation of Plaintiff's Counsel Stacey Mandel Levine; Affidavit of Cinnamon Houston). Accordingly, that portion of the defendant's motion which seeks summary judgment upon a fee schedule defense is rendered moot. As such, the outstanding balance of the subject claims are reduced, accordingly, to the sum of $9,379.30, as stipulated to by the plaintiff (Affirmation of Ms. Levine, p. 2).
The remaining defense raised by the defendant was that the assignor failed to appear for two (2) duly scheduled EUO's. In support of the defendant's motion for summary judgment upon this ground, the defendant submits the affidavit of Wendy [*3]Ziegenfus-Brown, the Director of Investigations of Golden Eye Claims Inc. As part of her responsibilities, Ms. Ziegenfus-Brown schedules EUO's for the defendant insurance company. She contends that on December 22, 2011, in accordance with the standard office policies and procedures, an EUO scheduling letter was mailed to the assignor's attorney via regular and certified mail. She further asserts that a copy was sent via regular mail to the assignor herself, notifying her that an EUO was scheduled for January 5, 2012. Ms. Ziegenfus-Brown claims that neither mailing was returned by the post office as undeliverable. According to the sworn statement of Emilio Montoya, a representative of Golden Eye Claims Inc, the plaintiff's assignor failed to appear (see Defendant's Exhibit H).
Thereafter, on January 10, 2012, in accordance with Golden Eye Claims Inc.'s standard office policies and procedures, a follow-up mailing was sent to both the plaintiff's assignor and her attorney, advising that an EUO had been re-scheduled for January 24, 2012. Ms. Ziegenfus-Brown contends that neither mailing was returned as undeliverable. According to the sworn statement of Emilio Montoya, neither the plaintiff's assignor nor her attorney appeared (see Defendant's Exhibit H).
In further support of its motion for summary judgment, the defendant submits the affidavit of Cinnamon Houston, a claims adjuster employed by the defendant. Ms. Houston contends that on January 27, 2012, a global NF-10 denial, which effectively denied all no-fault benefits, was generated and mailed to the plaintiff's assignor and her attorney. Ms. Houston asserts that the denial was based upon the assignor's failure to appear for the previously scheduled EUO's, which attendance at same, is a condition precedent to coverage.
Based upon these affidavits, along with the affirmation of Christine Lee, an attorney with De Martini & Yi, LLP., the court finds that the defendant has established that the EUO scheduling letters were timely mailed, that the dates and places of the scheduled EUO's were not unreasonable, and that the plaintiff's assignor failed to appear. Accordingly, the defendant has made a prima facie showing of entitlement to judgment as a matter of law, thereby shifting the burden to the plaintiff to submit proof in admissible form sufficient to raise a triable issue of fact.
In opposition to the defendant's motion and in support of its cross motion, the plaintiff contends that the issue of the assignor's failure to appear for an EUO was fully litigated and decided in the plaintiff's favor at an arbitration hearing held on February 26, 2013, and that the latter was affirmed by a Master Arbitrator on July 10, 2013 (Plaintiff's Exhibit 2). Thus, the plaintiff contends that the defendant is precluded from relitigating the within claims on the basis that the plaintiff's assignor failed to appear for an EUO.
The doctrines of res judicata and collateral estoppel apply not only to adjudications in judicial proceedings, but to awards rendered after arbitration (American Insurance Company v Messinger, 43 NY2d 184, 189-190 [1977]; GEICO v Town of [*4]Oyster Bay, 26 Misc 3d 34 [App Term, 9th & 10th Jud Dists 2009]). Under res judicata, a valid final judgment bars future actions between the same parties on the same cause of action (Parker v Blauvelt Volunteer Fire Company, 93 NY2d 343, 347 [1999], citing to Matter of Reilly v Reid, 45 NY2d 24, 27 [1978]; see also Schuylkill Fuel Corp. v B. & C. Nieberg Realty Corp. 250 NY 304 [1929]. "[O]nce a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy" (Parker v Blauvelt Volunteer Fire Company, 93 NY2d 343, 347 [1999], citing to O'Brien v City of Syracuse, 54 NY2d 353, 357 [1981]; Matter of Reilly v Reid, supra, at 30).
Inasmuch as the claims litigated in the arbitration actionhospital, ambulatory and prescription reimbursement are not the same as the claims sought in this case, the doctrine of res judicata has no application here. Thus, the issue before this court is whether the defendant is collaterally estopped, based upon the determination in the Master Arbitration Award, from succeeding on its motion for summary judgment.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same (Ripley v Storer, 309 NY 506, 517)" (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984] [citations omitted]). This doctrine applies if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the party had a full and fair opportunity to litigate the issue in the earlier action (Ryan v New York Tel Co., supra at 500-501).
Here, the issue of whether the plaintiff's assignor appeared for an EUO was previously decided in the plaintiff's favor and affirmed on appeal by a Master Arbitrator on July 10, 2013. Specifically, the initial arbitrator found that "Applicant made credible efforts to appear which were ignored by Respondent," and that "Despite repeated efforts, all of counsels efforts were ignored until Applicant's entire claim was denied." The arbitrator further found that "Respondent engaged in unfair claims practice and treated Applicant in an adversarial manner which is contrary to the intent of the no-fault regulations." The award also contains the following language "This award is final and binding unless modified or vacated by a master arbitrator" (Plaintiff's Exhibit 2). In view of the foregoing, the court finds that the plaintiff has sufficiently demonstrated that the issue litigated in the arbitration action, plaintiff assignor's failure to appear for an EUO, is identical to the defense raised in support of the defendant's motion for summary judgment. Accordingly, the plaintiff has met its burden, and the defendant is precluded from raising that defense herein.
The 14 claims that the defendant concedes it failed to either pay or deny within the required 30 day period, total $1,532.77, as follows:
1.$200.68 for dates of service 11/15/11;
2.$ 98.20 for dates of service 11/16/11;
3.$192.56 for dates of service 11/17/11;
4.$ 42.51 for dates of service 11/17/11;
5.$ 98.20 for dates of service 11/18/11;
6.$100.39 for dates of service 11/21/11;
7.$ 98.20 for dates of service 11/22/11;
8.$ 98.20 for dates of service 11/23/11;
9.$ 64.65 for dates of service 11/28/11;
10.$ 92.98 for dates of service 12/06/11;
11.$ 98.20 for dates of service 12/07/11;
12.$185.73 for dates of service 11/01/12;
13.$ 98.20 for dates of service 11/21/12; and
14.$ 64.07 for dates of service 11/27/12
Accordingly, the defendant's motion for summary judgment is denied. The plaintiff's cross motion for summary judgment is granted. Let judgment be entered in favor of the plaintiff in the sum of $9,379.30, plus statutory interest and attorney's fees.
This constitutes the Decision and Order of the court.
So Ordered:
/s/ Hon. Scott Fairgrieve
DISTRICT COURT JUDGE
Dated:October 17, 2014
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