Country-Wide Ins. Co. v Wilson

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Country-Wide Ins. Co. v Wilson 2021 NY Slip Op 30213(U) January 21, 2021 Supreme Court, New York County Docket Number: 651737/2020 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 01/21/2021 04:46 PM NYSCEF DOC. NO. 61 INDEX NO. 651737/2020 RECEIVED NYSCEF: 01/21/2021 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON. ARLENE P. BLUTH Justice ---------------------------------------------------------------------------------X IAS MOTION 14 INDEX NO. COUNTRY-WIDE INSURANCE COMPANY, MOTION DATE Plaintiff, 651737/2020 01/19/2021, 01/19/2021 001 002 MOTION SEQ. NO. -vANDRENE T. WILSON, JACOBI MEDICAL CENTER, HEALTHWAY MEDICAL CARE, P.C.,ATLANTIC MEDICAL & DIAGNOSTIC, P.C. F/K/A BRONX MEDICAL & DIAGNOSTIC, P.C.,ACUPUNCTURE NOW, P.C.,SB CHIROPRACTIC P.C.,JULES FRANCOIS PARISIEN MD, NU AGE MED SOLUTIONS INC.,NORTH BRONX FACULTY PRACTICE CORPORATION, G.M. WELLNESS MEDICAL, P.C.,SALUTEM PRODUCTS CORP. DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 46 were read on this motion to/for JUDGMENT - DEFAULT . The following e-filed documents, listed by NYSCEF document number (Motion 002) 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59 were read on this motion to/for JUDGMENT - SUMMARY . Motion sequence numbers 001 and 002 are consolidated for disposition. The motion (MS001) by plaintiff for a default judgment against defendants ANDRENE T. WILSON, ATLANTIC MEDICAL & DIAGNOSTIC, P.C. F/K/A BRONX MEDICAL & DIAGNOSTIC, P.C., NU AGE MED SOLUTIONS INC.,NORTH BRONX FACULTY PRACTICE CORPORATION, G.M. WELLNESS MEDICAL, P.C.,SALUTEM PRODUCTS CORP. is granted on default. 651737/2020 COUNTRY-WIDE INSURANCE COMPANY vs. WILSON, ANDRENE T Motion No. 001 002 1 of 4 Page 1 of 4 [*FILED: 2] NEW YORK COUNTY CLERK 01/21/2021 04:46 PM NYSCEF DOC. NO. 61 INDEX NO. 651737/2020 RECEIVED NYSCEF: 01/21/2021 The motion (MS002) by plaintiff for summary judgment against defendants Healthway Medical Care, P.C., Acupuncture Now, P.C., SB Chiropractic P.C. and Jules Francois Parisien MD (the “Answering Defendants”) is granted. Background Plaintiff seeks an order declaring that it need not honor or pay any claims arising out of an allegedly accident that took place on April 20, 2018 on the ground that the injured defendant (Wilson) failed to show up for two duly-noticed IMEs. In opposition, the Answering Defendants contend that plaintiff failed to meet its prima facie burden. They claim that plaintiff did not comply with various time requirements prescribed by insurance regulations and that plaintiff did not adequately prove the merits of its purported “now-show defense.” The Answering Defendants maintain that plaintiff only offers a conclusory assertion that the IME notices were properly mailed. In reply, plaintiff emphasizes that its request for an IME is a condition precedent to reimbursements from a medical provider and, if not complied with, is a basis to deny no-fault benefits. 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. 651737/2020 COUNTRY-WIDE INSURANCE COMPANY vs. WILSON, ANDRENE T Motion No. 001 002 2 of 4 Page 2 of 4 [*FILED: 3] NEW YORK COUNTY CLERK 01/21/2021 04:46 PM NYSCEF DOC. NO. 61 INDEX NO. 651737/2020 RECEIVED NYSCEF: 01/21/2021 Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011] [internal quotations and citation omitted]). Here, plaintiff established its prima facie case for requesting IMEs and defendant Wilson’s failure to show up for the IMEs through the affidavits of Kyaw Nyein (NYSCEF Doc. No. 40), Annie Persaud (NYSCEF Doc. No. 41), and Anita Megnauth (NYSCEF Doc. No. 42). The Answering Defendants did not raise an issue of fact; instead, they asserted generalized arguments about why plaintiff did not meet its burden. They did not cite any specific reason why the Court should ignore these affidavits, which establish that plaintiff reviewed the claims from the Answering Defendants, requested IMEs from defendant Wilson and then Wilson failed to appear. Accordingly, it is hereby ORDERED that the motion (MS001) by plaintiff for a default judgment against defendants ANDRENE T. WILSON, ATLANTIC MEDICAL & DIAGNOSTIC, P.C. F/K/A BRONX MEDICAL & DIAGNOSTIC, P.C.,, NU AGE MED SOLUTIONS INC.,NORTH BRONX FACULTY PRACTICE CORPORATION, G.M. WELLNESS MEDICAL, P.C.,SALUTEM PRODUCTS CORP. is granted on default; and it is further ORDERED that the motion (MS002) by plaintiff for summary judgment against defendants Healthway Medical Care, P.C., Acupuncture Now, P.C., SB Chiropractic P.C. and Jules Francois Parisien MD is granted; and it is further DECLARED that defendant Wilson is not an eligible person entitled to no fault benefits related to the April 20, 2018 accident, plaintiff’s insurance policy RT7116050 17 and Claim No.: 651737/2020 COUNTRY-WIDE INSURANCE COMPANY vs. WILSON, ANDRENE T Motion No. 001 002 3 of 4 Page 3 of 4 [*FILED: 4] NEW YORK COUNTY CLERK 01/21/2021 04:46 PM NYSCEF DOC. NO. 61 INDEX NO. 651737/2020 RECEIVED NYSCEF: 01/21/2021 000335941-001, and plaintiff need not honor or pay any claims from the defendants in this action relating to the above-cited accident, insurance policy and claim number. 1/21/2021 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 651737/2020 COUNTRY-WIDE INSURANCE COMPANY vs. WILSON, ANDRENE T Motion No. 001 002 4 of 4 OTHER REFERENCE Page 4 of 4

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