American Tr. Ins. Co. v Curry

[*1] American Tr. Ins. Co. v Curry 2013 NY Slip Op 23470 Decided on October 8, 2013 Supreme Court, New York County Billings, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on October 8, 2013
Supreme Court, New York County

American Transit Insurance Company, Plaintiff,

against

Christina Curry, BETTER HEALTH CARE CHIROPRACTIC, P.C., BRONX ACUPUNCTURE THERAPY, P.C., FIVE BORO PSYCHOLOGICAL AND LICENSED MASTER SOCIAL WORK SERVICES, PLLC, GARDEN MEDICAL DIAGNOSTICS, P.C., GREEN HEIGHTS PHYSICAL THERAPY, P.C., LINCOLN MEDICAL AND MENTAL HEALTH CENTER, NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, LONGEVITY MEDICAL SUPPLY, INC., NEW CENTURY DIAGNOSTICS, P.C., PARK AVENUE MEDICAL CARE, P.C., STAND-UP MRI OF THE BRONX, P.C., STAR MEDICAL & DIAGNOSTICS, PLLC, and TRANSCARE AMBULANCE CORP., Defendants.



109130/2011



For Plaintiff

Giovanna Tuttolomondo Esq.

Law Offices of James F. Sullivan, P.C.

52 Duane Street, New York, NY 10007

For Defendant Stand-Up MRI of the Bronx, P.C.

Melissa R. Abraham-Lofurno Esq.

Law Offices of Robert E. Dash, P.C.

8 Corporate Center Drive, Melville, NY 11747
Lucy Billings, J.

I.BACKGROUND

Plaintiff moves for a default judgment against all defendants except Five Boro Psychological and Licensed Master Social Work Services, PLLC, Lincoln Medical and Mental Health Center, New York City Health and Hospitals Corporation, Stand-Up MRI of the Bronx, P.C., and Transcare Ambulance Services. C.P.L.R. § 3215. Plaintiff moves for summary judgment against Stand-Up MRI. C.P.L.R. § 3212(b). On each ground, against both Stand-Up MRI and the remaining nine defendants, plaintiff's motion seeks a judgment declaring that plaintiff owes no duty to compensate them pursuant to New York Insurance Law § 5103 for expenses incurred from a collision November 15, 2009, involving defendant Curry and a motor [*2]vehicle for which plaintiff issued an insurance policy. C.P.L.R. §§ 3001, 3212(b), 3215(e). For the reasons explained below, the court denies all the relief sought by plaintiff's motion.

Plaintiff bases both prongs of its motion on Curry's nonappearance for an examination under oath (EUO), to which plaintiff is entitled under the policy. See 11 N.Y.C.R.R. § 65-1.1(d). The policy's mandatory personal injury protection provisions condition the insurer's payment of a claim on "full compliance with the terms of this coverage." Id. Upon the insurer's request, "the eligible injured person or that person's assignee or representative shall . . . as may reasonably be required submit to examinations under oath . . . ." Id.

II.PLAINTIFF SCHEDULED THE EUO AT REASONABLY CONVENIENT TIMES.

11 N.Y.C.R.R. § 65-3.5(e) requires that an EUO be "held at a place and time reasonably convenient to the applicant" for insurance coverage. Plaintiff scheduled Curry's EUO at two different times on different days of the week, both during business hours. Although business hours may be inconvenient for applicants who work during those hours, § 65-3.5(e) also required plaintiff to notify Curry, as it did, that she would be reimbursed for any earnings lost by complying with the EUO request. Plaintiff notified her further that, if she advised plaintiff that the scheduled time was in fact inconvenient, plaintiff would reschedule the EUO. In light of these available accommodations, and absent any notice from Curry that the scheduled time was inconvenient, the scheduling during business hours was reasonable.

III.THE MISSING EVIDENCE

Yet 11 N.Y.C.R.R. § 65-3.5(e) requires further that plaintiff's request for the EUO, to establish Curry's or her assignee's claim, "must be based upon the application of objective standards so that there is specific objective justification supporting the use of such exam." Nowhere do plaintiff's admissible documents or its witnesses, including the claims representative assigned to defendants' claims for coverage and a supervisor of plaintiff's legal department, responsible for EUO requests, indicate any justification, need, or explanation for Curry's EUO. The director of plaintiff's special investigations unit (SIU) attests simply that it "was requested to conduct an investigation" of the motor vehicle collision in which Curry was involved. Aff. in Supp. of Giovanna Tuttolomondo Ex. J ¶ 6. "As part of SIU's investigation," an SIU investigator "attempted to examine the claimant, CHRISTINA CURRY, under oath." Id.

Moreover, even though only four months elapsed between when Curry provided her address on her application for insurance coverage and plaintiff mailed its EUO requests to that address, no witness attests that Curry did not notify plaintiff of an address change in the interim. Nor does plaintiff present any evidence that the applicant was notified of any obligation to inform the insurer of her change in address, particularly when she has assigned her rights to insurance benefits to her medical care providers and retains no more interest in obtaining benefits paid to her. This incomplete record leaves a question whether plaintiff mailed its EUO requests to Curry's current address and whether she ever received them.

More importantly, no witness attests to Curry's nonappearance at either of the scheduled EUOs. The director of plaintiff's SIU just lays the foundation for the admissibility of business records that he claims show her nonappearances. While these records may be admissible, plaintiff does not present them. The SIU director's recitation of their contents is hearsay. E.g., People v. Joseph, 86 NY2d 565, 570 (1995); Lapin v. Atlantic Realty Apts. Co., LLC, 48 AD3d 337, 338 (1st Dep't 2008); Kane v. Triborough Bridge & Tunnel Auth., 8 AD3d 239, 241 (2d Dep't 2004); Wagman v. Bradshaw, 292 AD2d 84, 87-88 (2d Dep't 2002). See Giordano v. Berisha, 45 AD3d 416, 417 (1st Dep't 2007); Washington v. Montefiore Medical Ctr., 9 AD3d 271, 272 (1st Dep't 2004); National State Elec. Corp. v. Marina Towers Assocs., 203 AD2d 49, 50 (1st Dep't 1994).

IV.CONCLUSION

The absence of justification for the EUO as required by 11 N.Y.C.R.R. § 65-3.5(e) and of admissible evidence that the eligible injured person Curry actually failed to appear for the EUOs requested by plaintiff, see 11 N.Y.C.R.R. § 65-1.1(d), precludes a summary declaratory judgment to plaintiff at this stage. Ahead Realty LLC v. India House, Inc., 92 AD3d 424, 425 (1st Dep't [*3]2012); Thome v. Alexander & Louisa Calder Found., 70 AD3d 88, 100-101 (1st Dep't 2009); Long Is. Light. Co. v. Allianz Underwriters Ins. Co., 35 AD3d 253, 254 (1st Dep't 2006). See United States Fire Ins. Co. v. American Home Assur. Co., 19 AD3d 191, 192 (1st Dep't 2005); 319 McKibben St. Corp. v. General Star Natl. Ins. Co., 245 AD2d 26, 29-30 (1st Dep't 1997). Absent a showing of plaintiff's compliance with the governing regulation, 11 N.Y.C.R.R. § 65-3.5(e), and Curry's noncompliance with the regulations and policy, 11 N.Y.C.R.R. §§ 65-1.1(d), 65-3.5(e), plaintiff has failed to present facts establishing its prima facie claim and thus a basis for summary judgment as sought against Stand-Up MRI, C.P.L.R. § 3212(b); JMD Holding Corp. v. Congress Fin. Corp, 4 NY3d 373, 384 (2005); Chubb Natl. Ins. Co. v. Platinum Customcraft Corp., 38 AD3d 244, 245 (1st Dep't 2007); Atlantic Mut. Ins. Co. v. Joyce Intl., Inc., 31 AD3d 352 (1st Dep't 2006), or a default judgment as sought against the nine other defendants. C.P.L.R. § 3215(f); Manhattan Telecom. Corp. v. H & A Locksmith, Inc., 21 NY3d 200, 203 (2013); Martinez v. Reiner, 104 AD3d 477, 478 (1st Dep't 2013); Utak v. Commerce Bank, 88 AD3d 522, 523 (1st Dep't 2011); Mejia-Ortiz v. Inoa, 71 AD3d 517 (1st Dep't 2010).

Consequently, the court denies plaintiff's motion for a default declaratory judgment and for a summary declaratory judgment. C.P.L.R. §§ 3001, 3212(b), 3215(f). This decision constitutes the court's order.

DATED: October 8, 2013

_____________________________

LUCY BILLINGS, J.S.C.