AMERICAN TRANSIT INSURANCE COMPANY v. REYES MLJ PLLC (2022)

Plaintiff moves for a default judgment against the no-fault claimant and some of his treating medical providers; and moves for summary judgment against appearing defendants Community Medical Imaging P.C. and Lev Aminov Internal Medicine, P.C. The motion is denied in its entirety.

Plaintiff has not established that it complied with the regulatory timeliness requirements for the processing of no-fault insurance claims. (See American Transit Ins. Co. v Longevity Med. Supply, Inc., 131 AD3d 841, 841 [1st Dept 2015].) When the additional verification that the insurer seeks from an applicant for no-fault benefits takes the form of an independent medical examination (IME), the IME must be scheduled to be held within 30 calendar days from receipt of the verification forms. (See 11 NYCRR 65-3.5 [d].) Here, the IME was scheduled to be held 33 calendar days after the IME request, and thus necessarily more than the 30-day limit set by § 65-3.5 (d). (See NYSCEF No. 15 at 1.)

Thus, if plaintiff were required to satisfy § 65-3.5’s timeliness requirements, the record demonstrates that it failed to do so—and thus that it was not entitled to deny the claims of the no-fault claimant and his assignees on the ground that the claimant failed to appear for the requested IME. (See Longevity Medical Supply, 131 AD3d at 841.) That said, when an insurer requests additional verification before receiving any claims for benefits, § 65-3.5’s scheduling deadlines do not apply. (See Hereford Ins. Co. v Lida's Med. Supply, Inc., 161 AD3d 442, 443 [1st Dept 2018].) Neither plaintiff's attorney affirmation on this motion nor the affirmation's supporting exhibits disclose when plaintiff received benefits claims or verification forms from the no-fault claimant's provider assignees. (See NYSCEF No. 11 at ¶ 12; NYSCEF No. 14.) Thus, it is at least possible that plaintiff's IME request was timely; and that plaintiff could still be entitled to the default and declaratory judgments that it seeks (assuming plaintiff also satisfies the other elements of its claim).

Accordingly, it is hereby

ORDERED that plaintiff's motion under CPLR 3215 for default judgment against the defaulting defendants is denied; and it is further

ORDERED that if plaintiff does not bring a renewed default-judgment motion within 30 days of entry of this order, the action will be dismissed as to the defaulting defendants; and it is further

ORDERED that plaintiff's motion under CPLR 3212 for summary judgment against the appearing defendants is denied.

Gerald Lebovits, J.