American Tr. Ins. Co. v Phipps

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American Tr. Ins. Co. v Phipps 2020 NY Slip Op 33996(U) December 1, 2020 Supreme Court, New York County Docket Number: 650108/2019 Judge: Arlene P. Bluth Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/01/2020 02:22 PM NYSCEF DOC. NO. 95 INDEX NO. 650108/2019 RECEIVED NYSCEF: 12/01/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff, IAS MOTION 14 INDEX NO. MOTION DATE MOTION SEQ. NO. 650108/2019 11/30/2020 004 -vNATASHA PHIPPS, BROOKDALE HOSPITAL, BROWNSVILLE CHIROPRACTIC PC,COMFORT PHYSICAL THERAPY PLLC,DYNAMIC MEDICAL IMAGING PC,ENS MEDICAL PC,HARMONIZED ACUPUNCTURE PC,METRO PAIN SPECIALISTS PC,MYRTLE DME NYC INC, REHAB CARE PHYSICAL THERAPY PC,SATYA DRUG CORP, SMART CHOICE MEDICAL PC DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 004) 70, 71, 72, 73, 74, 75, 76, 77, 82, 88, 89, 90, 91, 92, 93, 94 were read on this motion to/for JUDGMENT - SUMMARY . The motion for summary judgment by plaintiff against the remaining defendants Brownsville Chiropractic, P.C., Myrtle DME NYC Inc and ENS Medical P.C. (“Remaining Defendants”) is granted. Background In this no-fault case, plaintiff seeks a declaration that it need not honor the claims made by the medical provider defendants because defendant Phipps failed to appear for duly scheduled IMEs. The Remaining Defendants claim that the default judgment entered against the nonanswering co-defendants has no preclusive effect. They claim that plaintiff has not shown it timely scheduled the IMEs, that the affidavits plaintiff submits are insufficient to establish 650108/2019 AMERICAN TRANSIT INSURANCE vs. PHIPPS, NATASHA Motion No. 004 1 of 4 Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 12/01/2020 02:22 PM NYSCEF DOC. NO. 95 INDEX NO. 650108/2019 RECEIVED NYSCEF: 12/01/2020 Phipps’ non-appearance and that plaintiff did not sufficiently show that it denied the claims from the Remaining Defendants. In reply, plaintiff explains that the purpose of an IME is to review a patient’s current status; it is not tied to treatment that may have been received months ago. Plaintiff insists that the 30-day requirement under 11 NYCRR65-3.5(d) does not apply to all medical exams and is required only to determine when particular claims should be paid. Plaintiff relies upon 11 NYCRR 65 for the notion that it has broad ability to schedule IMEs as may be reasonably required. Discussion “The failure to appear for IMEs requested by the insurer ‘when, and as often as, [it] may reasonably require’ (Insurance Department Regulations [11 NYCRR] § 65–1.1) is a breach of a condition precedent to coverage under the No–Fault policy, and . . . when defendants' assignors failed to appear for the requested IMEs, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotations and citation omitted]). Here, the affidavit of Cheryl Glaze, a claim representative for plaintiff, established that Phipps was provided two opportunities to appear for an IME and failed to appear on two occasions (NYSCEF Doc. No. 72). The Remaining Defendants failed to raise an issue of fact in opposition—there are no affidavits from defendant Phipps about not receiving the IME notices or that she actually showed up for the IMEs. With respect to the issue of timing, the Remaining Defendants did not specifically identify a claim they made or when it was made. They cannot raise an issue of fact by simply 650108/2019 AMERICAN TRANSIT INSURANCE vs. PHIPPS, NATASHA Motion No. 004 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 12/01/2020 02:22 PM NYSCEF DOC. NO. 95 INDEX NO. 650108/2019 RECEIVED NYSCEF: 12/01/2020 offering a conclusory allegation that the IMEs were not timely scheduled especially where, as here, there is no dispute that Phipps did not show up for the IMEs (NYSCEF Doc. No. 72, exh B [sworn statements detailing Phipps failure to appear]). 11 NYCRR 65-3.5(d) requires an IME to be scheduled within 30 days of receipt of the prescribed verification forms from the parties seeking no-fault benefits. The Remaining Defendants did not offer any specific proof (such as the forms they sent to plaintiff) about when this timeline began to run. The Court observes that the timelines in the no-fault regulations are designed to ensure prompt resolution of no-fault benefits applications. But it is also critical to recognize that one of the purposes of an IME is to prevent fraud, such as seeking reimbursement for treatment that is not medically necessarily. The Remaining Defendants voluntarily agreed to take an assignment of the injured defendant’s rights with the understanding that Phipps’ failure to appear for an IME might result in the insurance company denying coverage. The Court sees no reason to continually add to the burden on an insurance company to make its prima facie case while provider defendants raise only vague and unsupported procedural objections. Accordingly, it is hereby ORDERED that the motion by plaintiff for summary judgment against defendants Brownsville Chiropractic, P.C., Myrtle DME NYC Inc. and ENS Medical, P.C. is granted and it is further 650108/2019 AMERICAN TRANSIT INSURANCE vs. PHIPPS, NATASHA Motion No. 004 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 12/01/2020 02:22 PM NYSCEF DOC. NO. 95 INDEX NO. 650108/2019 RECEIVED NYSCEF: 12/01/2020 DECLARED that plaintiff need not honor or pay any claims from these defendants arising out of plaintiff’s insurance policy A200000 with respect to the accident involving defendant Phipps on May 30, 2018. 12/1/2020 DATE CHECK ONE: $SIG$ ARLENE P. BLUTH, J.S.C. X CASE DISPOSED X GRANTED NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 650108/2019 AMERICAN TRANSIT INSURANCE vs. PHIPPS, NATASHA Motion No. 004 4 of 4 OTHER REFERENCE Page 4 of 4

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