Learn About the Law
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
AMERICAN TRANSIT INSURANCE COMPANY, Plaintiff–Appellant, v. Keyana LUCAS, et al., Defendants,
Sky Acupuncture, P.C., Defendant–Respondent. American Transit Insurance Company, Plaintiff–Appellant, v. Tashuana Lucas, et al., Defendants, Sky Acupuncture, P.C., Defendant–Respondent.
Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff's motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.
The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2012] ). Accordingly, when defendants' assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65–3.8[c]; Unitrin, 82 AD3d at 560).
“ ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ “ (Matter of Ariel Servs., Inc. v. New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011] ). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679, 680 [2d Dept 2001] ).
Plaintiff submitted competent evidence that the notices scheduling the claimant's medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v. Solorzano, 108 AD3d 449, 449 [1st Dept 2013] ). Contrary to defendants' contention, the affidavits were not conclusory, as they established personal knowledge, the employee's role in the physician's no-fault department, and the physician's personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v. Lumbermens Mut. Ins. Co., 9 Misc.3d 1127 [A], *3 [Civ Ct, Kings County 2005], affd 14 Misc.3d 142[A] [App Term, 2d Dept 2007] ).
There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v. Country–Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560).
A free source of state and federal court opinions, state laws, and the United States Code. For more information about the legal concepts addressed by these cases and statutes visit FindLaw's Learn About the Law.
Decided: November 07, 2013
Search our directory by legal issue
Enter information in one or both fields (Required)
Harness the power of our directory with your own profile. Select the button below to sign up.
Learn more about FindLaw’s newsletters, including our terms of use and privacy policy.
Get help with your legal needs
FindLaw’s Learn About the Law features thousands of informational articles to help you understand your options. And if you’re ready to hire an attorney, find one in your area who can help.
Search our directory by legal issue
Enter information in one or both fields (Required)