NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA v. JAMAICA WELLNESS MEDICAL (2020)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, the cross motion is dismissed, and judgment is granted in favor of plaintiffs as follows:

It is ADJUDGED and DECLARED that plaintiffs are under no obligation to pay or reimburse any of the subject claims.

Memorandum: As we explained in a prior appeal (Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C., 167 A.D.3d 192, 89 N.Y.S.3d 498 [4th Dept. 2018]), defendant is a medical professional corporation that was assigned claims for no-fault benefits by individuals who purportedly received treatment for injuries allegedly sustained in motor vehicle accidents. Defendant submitted bills for the services it purportedly rendered, along with the assignment of benefit forms, to the insurance carrier plaintiffs (Nationwide plaintiffs) seeking reimbursement pursuant to the No–Fault Law and regulations (see Insurance Law art 51; 11 NYCRR part 65). The Nationwide plaintiffs commenced this declaratory judgment action after defendant failed to appear at repeatedly requested examinations under oath (EUOs), alleging that defendant had breached a material condition precedent necessary to coverage. The Nationwide plaintiffs then moved for summary judgment declaring that, as a result of such breach, they were under no obligation to pay or reimburse any of the subject claims. Supreme Court granted the motion, declared, among other things, that defendant breached a condition precedent to coverage by failing to appear at the scheduled EUOs, and determined that the Nationwide plaintiffs therefore had the right to deny all claims retroactively to the date of loss, regardless of whether they had issued timely denials.

We reversed the judgment insofar as appealed from, denied the Nationwide plaintiffs' motion, and vacated the declarations. We held that a defense based on nonappearance at an EUO is subject to the preclusion remedy and that, therefore, the Nationwide plaintiffs were required to establish that they issued timely denials on that ground. We determined that the Nationwide plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of their timely and proper denial of coverage inasmuch as the assertions in the affidavit of their claims specialist that they issued timely denial forms to defendant for nonappearance at the EUOs were conclusory and unsupported by any such denial forms (Nationwide Affinity Ins. Co. of Am., 167 A.D.3d at 198, 89 N.Y.S.3d 498).

The Nationwide plaintiffs subsequently filed a second motion for summary judgment on the complaint and submitted, inter alia, a detailed affidavit of the claims specialist, the subject denial of claim forms, and affidavits of the operations manager of their third-party claims processor. Defendant cross-moved pursuant to CPLR 3124 to compel discovery. Supreme Court denied the motion on the ground that it was an improper successive motion for summary judgment and granted in part the cross motion. The Nationwide plaintiffs now appeal.

We agree with the Nationwide plaintiffs that the court erred in refusing to entertain their second summary judgment motion. “Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause ․, neither Supreme Court nor this Court is precluded from addressing the merits of such a motion” (Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602 [4th Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135242 [2011]; see Putrelo Constr. Co. v. Town of Marcy, 137 A.D.3d 1591, 1593, 27 N.Y.S.3d 760 [4th Dept. 2016]). Here, our intervening decision in the prior appeal, which clarified that the defense based on nonappearance at an EUO is subject to the preclusion remedy and that the Nationwide plaintiffs were therefore required to establish that they issued timely denials on that ground, constitutes sufficient cause to entertain the motion (see Pludeman v. Northern Leasing Sys., Inc., 106 A.D.3d 612, 616, 966 N.Y.S.2d 383 [1st Dept. 2013]).

We further agree with the Nationwide plaintiffs that they are entitled to summary judgment. Contrary to defendant's contentions, we conclude upon our review of the record that the Nationwide plaintiffs met their burden as movant and that defendant failed to raise a triable issue of fact (see Nationwide Affinity Ins. Co. of Am. v. Beacon Acupuncture, P.C., 175 A.D.3d 1836, 1837, 109 N.Y.S.3d 812 [4th Dept. 2019]). In addition, defendant's “ ‘mere hope or speculation’ that further discovery will lead to evidence sufficient to defeat [the Nationwide plaintiffs'] motion is insufficient to warrant denial thereof” (Kaufmann's Carousel, Inc. v. Carousel Ctr. Co. LP, 87 A.D.3d 1343, 1345, 929 N.Y.S.2d 825 [4th Dept. 2011], lv dismissed 18 N.Y.3d 975, 944 N.Y.S.2d 476, 967 N.E.2d 701 [2012], rearg. denied 19 N.Y.3d 938, 950 N.Y.S.2d 92, 973 N.E.2d 189 [2012]; see Austin v. CDGA Natl. Bank Trust & Canandaigua Natl. Corp., 114 A.D.3d 1298, 1301, 980 N.Y.S.2d 660 [4th Dept. 2014]; see generally CPLR 3212[f]). In light of our determination, defendant's cross motion to compel discovery is dismissed as moot (see Clark C.B. v. Fuller, 59 A.D.3d 1030, 1031, 872 N.Y.S.2d 781 [4th Dept. 2009]). We therefore reverse the order by granting the motion, dismissing the cross motion, and granting judgment in favor of the Nationwide plaintiffs declaring that they are under no obligation to pay or reimburse any of the subject claims.