ADVANCED RECOVERY, as Assignee of Loduca, Plaintiff(s), v. ALLSTATE INSURANCE COMPANY, Defendant(s).
Background
In a summons and complaint filed on August 29, 2019, Plaintiff commenced action against Defendant insurance company to recover a total of $5,119.50 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Loduca from November to December 2016, plus attorneys’ fees and statutory interest (see Motion, Aff. of Inguanti, Ex. A). Defendant moved for summary judgment dismissing the complaint (CPLR 3212[b]) on the ground that Defendant timely denied Plaintiff's claims based on Loduca's failure to appear for two (2) independent medical examinations (“IME”).
Discussion and Decision
CPLR 3212 provides that “a motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions” (CPLR 3212[b]). “Mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient” (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]). “A defendant moving for summary judgment [seeking an order dismissing plaintiff's complaint] has the initial burden of coming forward with admissible evidence, such as affidavits by persons having knowledge of the facts, reciting the material facts and showing that the cause of action has no merit” (GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 967, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985]; Anghel v. Ruskin Moscou Faltischek, P.C., 190 A.D.3d 906, 907, 141 N.Y.S.3d 92 [2d Dept. 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 833, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]). A motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party” (CPLR 3212[b]; Zuckerman v. City of New York, at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718, see GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d at 968, 498 N.Y.S.2d 786, 489 N.E.2d 755).
Insurers must pay or deny No-Fault benefit claims “within thirty (30) calendar days after receipt of the proof of the claim” (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d 498, 501, 14 N.Y.S.3d 283, 35 N.E.3d 451 [2015]; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d 556, 563, 860 N.Y.S.2d 471, 890 N.E.2d 233 [2008]; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 317, 849 N.Y.S.2d 473, 879 N.E.2d 1291 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 N.Y.2d 274, 278, 660 N.Y.S.2d 536, 683 N.E.2d 1 [1997]). Failure to establish timely payment or denial of the claim precludes the insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 N.Y.3d at 506, 14 N.Y.S.3d 283, 35 N.E.3d 451; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 563, 860 N.Y.S.2d 471, 890 N.E.2d 233; Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 318, 849 N.Y.S.2d 473, 879 N.E.2d 1291; Presbyterian Hosp. in City of NY v. Maryland Cas. Co., 90 N.Y.2d at 281-86, 660 N.Y.S.2d 536, 683 N.E.2d 1). An assignor's appearance at an IME “is a condition precedent to the insurer's liability on the policy” (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 722, 827 N.Y.S.2d 217 [2d Dept. 2006]; Greenway Med. Supply Corp. v. Hartford Ins. Co., 56 Misc. 3d 135[A], 2017 N.Y. Slip Op. 50960[U], *1, 2017 WL 3203804 [App. Term 2d Dept. 2017]; Parisien v. Citywide Auto Leasing, 55 Misc. 3d 146[A], 2017 N.Y. Slip Op. 50684[U], *1, 2017 WL 2293973 [App. Term 2d Dept. 2017]; Longevity Med. Supply, Inc. v. Praetorian Ins. Co., 47 Misc. 3d 128[A], 2015 N.Y. Slip Op. 50393[U], *1, 2015 WL 1422251 [App. Term 2d Dept. 2015]).
To sustain its burden, Defendant must present evidence that it mailed the IME notices to Loduca and that Loduca failed to appear for the IMEs (Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d at 721, 827 N.Y.S.2d 217). Defendant presented an affidavit sworn December 31, 2019 (see Motion, Inguanti Aff. Ex. F), in which Donovan, an employee of MES Solutions, the company retained by Defendant to schedule IMEs, attested to the ordinary business practices of MES Solutions in mailing IME scheduling letters and recording the status of the IMEs scheduled. Defendant also presented the scheduling letters to establish that Defendant timely scheduled the IMEs (Bronx Acupuncture Therapy, P.C. v. A. Cent. Ins. Co., 58 Misc. 3d 141[A], 2017 N.Y. Slip Op. 51870[U], *1, 2017 WL 6544931 [App. Term 2d Dept. 2017]; Brand Medical Supply, Inc. v. Praetorian Ins. Co., 56 Misc. 3d 133[A], 2017 N.Y. Slip Op. 50947[U], * 1, 2017 WL 3203512 [App. Term 2d Dept. 2017]; Broadway Massage Therapy, P.C. v. Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 N.Y. Slip Op. 50426[U], *2, 2017 WL 1305291 [App. Term 2d Dept. 2017]; Longevity Med. Supply, Inc. v. Praetorian Ins. Co., 2015 N.Y. Slip Op. 50393[U], *1, 2015 WL 1422251 [App. Term 2d Dept. 2015]). The affidavits of Perrie, D.C. sworn January 29, 2020 and Bogdan, D.C. sworn January 2, 2020, the two chiropractors who were to perform the IMEs, established that Loduca failed to appear for the IMEs (see Motion, Inguanti Aff. Ex. H) (Brand Med. Supply, Inc. v. Praetorian Ins. Co., 2017 N.Y. Slip Op. 50947[U], *1; Broadway Massage Therapy, P.C. v. Citiwide Auto Leasing, 2017 N.Y. Slip Op. 50426[U], *2; Longevity Med. Supply, Inc. v. Praetorian Ins. Co., 2015 N.Y. Slip Op. 50393[U], *1). The affidavits of Defendant's employees and an officer of the company Defendant retained to provide mailing services establishing Defendant's regular mailing procedures adequately demonstrated Defendant's timely denial of Plaintiff's claims based on Loduca's failure to attend the IMEs (see Bronx Acupuncture Therapy, P.C. v. A. Cent. Ins. Co., 2017 N.Y. Slip Op. 51870[U], *1; Greenway Med. Supply Corp. v. Hartford Ins. Co., 2017 N.Y. Slip Op. 50960[U], *1; Brand Med. Supply, Inc. v. Praetorian Ins. Co., 2017 N.Y. Slip Op. 50947[U], *1; Broadway Massage Therapy, P.C. v. Citiwide Auto Leasing, 2017 N.Y. Slip Op. 50426[U], *2).
In opposition, Plaintiff argued that the affidavits of the examining chiropractors Perrie and Bogdan, which were sworn more than three (3) years after Loduca's purported non-appearances at the IMEs and failed to state the basis for their recollection rendered their assertions as to Loduca's nonappearances conclusory (Satya Drug Corp. v. Global Liberty Ins. Co. of NY, 65 Misc. 3d 127[A], 2019 N.Y. Slip Op. 51505[U], *1, 2019 WL 4613366 [App. Term 1st Dept. 2019]; Utica Acupuncture P.C. v. Amica Mut. Ins. Co., 55 Misc. 3d 126[A], 2017 N.Y. Slip Op. 50331[U], *1, 2017 WL 1053289 [App. Term 1st Dept. 2017]; Five Boro Med. Equip., Inc v. Praetorian Ins. Co., 53 Misc. 3d 138[A], 2016 N.Y. Slip Op. 51481[U], * 1, 2016 WL 6106195 [App. Term 1st Dept. 2016]; Village Med. Supply, Inc. v. Travelers Prop. Cas. Co. of Am., 51 Misc. 3d 126[A], 2016 N.Y. Slip Op. 50339[U], *1, 2016 WL 1092083 [App. Term 1st Dept. 2016]). Conclusory affidavits and affirmations are insufficient to establish an assignor's nonappearance at an IME (Compas Med., P.C. v. Geico Ins. Co., 49 Misc. 3d 140[A], 2015 N.Y. Slip Op. 51590[U], *1, 2015 WL 6743043 [App. Term 2d Dept. 2015]). However, whether a failure to state a basis of recollection renders an affidavit regarding nonappearance at an IME conclusory has not been previously addressed by the Appellate Term, Second Department or any higher authority binding this Court 1 .
Here, this Court finds that the affidavits of Perrie and Bogdan are not conclusory even though they did not specify a basis for their recollection of Loduca's nonappearances as explained below.
Perrie and Bogdan both attested that they had personal knowledge of Loduca's nonappearances because they were present in their offices on the dates of the scheduled IMEs and Loduca did not appear or contact them to cancel or reschedule the IME (see Quality Health Prods. v. Hertz Claim Mgt. Corp., 36 Misc. 3d 154[A], 2012 N.Y. Slip Op. 51722[U], *1-2, 2012 WL 3888223 [App. Term 2d Dept. 2012]). Plaintiff presented no evidence to support its assertions casting doubt on the personal knowledge of Perrie and Bogdan regarding Loduca's nonappearances (Quality Health Prods. v. Hertz Claim Mgt. Corp., 2012 N.Y. Slip Op. 51722[U], *2, see MB Advanced Equip., Inc. v. New York Cent. Mut. Fire Ins. Co., 51 Misc. 3d 151[A], 2016 N.Y. Slip Op. 50863[U], *1, 2016 WL 3189724 [App. Term 2d Dept. 2016]). While a contemporaneously executed affidavit is more probative than an affidavit executed later (Williams v. New York City Hous. Auth., 183 A.D.3d 523, 528, 125 N.Y.S.3d 390 [1st Dept. 2020]), Plaintiff has not established that the Perrie and Bogdan affidavits were “inherently unworthy of belief” or otherwise “incredible as a matter of law” (Salako v. Nassau Inter-County Express, 131 A.D.3d 687, 688, 15 N.Y.S.3d 444 [2d Dept. 2015]). Affidavits executed a significant time after the events to which the witness attested have only been rejected when other infirmities existed in them (see Cruz v. Roman Catholic Church of St. Gerard Magella in Borough of Queens in the City of NY, 174 A.D.3d 782, 784, 106 N.Y.S.3d 389 [2d Dept. 2019] [conclusory]; Deutsche Bank Natl. Trust Co. v. Cunningham, 142 A.D.3d 634, 635, 36 N.Y.S.3d 726 [2d Dept. 2016] [failed to attest plaintiff was note holder at time foreclosure action commenced]; Fredette v. Town of Southampton, 95 A.D.3d 940, 943, 944 N.Y.S.2d 206 [2d Dept. 2001] [affidavit tailored to avoid consequences of earlier testimony]; Montanaro v. Kandel, 288 A.D.2d 275, 275, 732 N.Y.S.2d 889 [2d Dept. 2001] [examining physician failed to specify tests used to support conclusions]). In our instant matter, Plaintiff has not shown that any of these infirmities existed. Further, Perrie and Bogdan generally confirmed that letters were sent to MES Solutions on the same date as Loduca's nonappearances. Donovan attested that MES Solutions received letters from the examiners with whom IMEs were scheduled advising whether the claimant appeared. Defendant appended letters signed by Perrie and Bogdan to its Motion (see Motion, Inguanti Aff. Ex. G). Considering that the Perrie and Bogdan affidavits sufficiently established Loduca's nonappearance at the IMEs, Plaintiff's contentions that these witness’ letters did not indicate their presence in the office at the time of Loduca's nonappearance were irrelevant and failed to raise factual issues regarding Defendant's defense of nonappearance at scheduled IMEs. As Defendant noted in Reply, Plaintiff presented no evidence that Loduca attended or unsuccessfully attempted to attend the IMEs. This Court finds that Defendant has presented prima facie admissible evidence proving that there is no material issue of fact and that the controversy can be decided as a matter of law (CPLR 3212 [b]; Jacobsen v. New York City Health and Hosps. Corp., 22 N.Y.3d 824, 988 N.Y.S.2d 86, 11 N.E.3d 159 [2014]; Brill v. City of New York, 2 N.Y.3d 648, 781 N.Y.S.2d 261, 814 N.E.2d 431 [2004]), and that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v. George, 183 A.D.3d 755, 757, 123 N.Y.S.3d 626 [2d Dept. 2001]; Nova Chiropractic Servs., P.C. v. Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 N.Y. Slip Op. 51882[U], *1, 2017 WL 6544922 [App. Term 2d Dept. 2017]; K.O. Med., P.C. v. IDS Prop. Cas. Ins. Co., 57 Misc. 3d 145[A], 2017 N.Y. Slip Op. 51454[U], *1, 2017 WL 5013361 [App. Term 2d Dept. 2017]).
VI. Order
Accordingly, it is
ORDERED that Defendant's motion for summary judgment is granted and Plaintiff's complaint is dismissed.
This constitutes the DECISION and ORDER of the Court.
FOOTNOTES
1. This Court recognizes that case law from the Appellate Term, First Department held that examining professional's affidavits regarding an assignor's nonappearance were conclusory for failing to state a basis for their recollection in affidavit.
Wendy Changyong Li, J.
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