Advanced Recovery, As Assignee Of Loduca, Plaintiff(s), v. Allstate Insurance Company, Defendant(s).

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Civil Court, City of New York.

Advanced Recovery, As Assignee Of Loduca, Plaintiff(s), v. Allstate Insurance Company, Defendant(s).

CV-718469-19/QU

Decided: May 27, 2021

Plaintiff's Counsel: Law Offices of Jonathan B. Seplowe, Esq. 112C Broadway, Suite 1000 Malverne, NY 11565 Defendant's Counsel: Law Offices of Karen L. Lawrence 1225 Franklin Avenue, Suite 100 Garden City, NY 11530

Papers

The following papers were read on Defendant's motion for summary judgment dismissing the complaint:

Papers

Numbered

Defendant's Notice of Motion and Affirmation in Support dated February 3, 2020 ("Motion") and file stamped by the court on February 11, 2020.

1

Plaintiff's Affirmation in Opposition dated May 4, 2020 ("Opposition") and electronically filed with court on June 18, 2020.

2

Defendant's Reply Affirmation dated October 13, 2020 ("Reply") and electronically filed with the court on October 23, 2020

3

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 NY2d 557, 562 [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 NY2d 965, 967 [1985]; Anghel v Ruskin Moscou Faltischek, P.C., 190 AD3d 906, 907 [2d Dept 2021], see Jacobsen v. New York City Health & Hosps. Corp., 22 NY3d 824, 833 [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, see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968).

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 NY3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 278 [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 NY3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 NY3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d at 281-86). 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 AD3d 720, 722 [2d Dept 2006]; Greenway Med. Supply Corp. v Hartford Ins. Co., 56 Misc 3d 135[A], 2017 NY Slip Op 50960[U] *1 [App Term 2d Dept 2017]; Parisien v. Citywide Auto Leasing, 55 Misc 3d 146[A], 2017 NY Slip Op 50684[U] *1 [App Term 2d Dept 2017]; Longevity Med. Supply, Inc. v. Praetorian Ins. Co., 47 Misc 3d 128[A}, 2015 NY Slip Op 50393[U] *1 [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 AD3d at 721). 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 NY Slip Op 51870[U] *1 [App Term 2d Dept 2017]; Brand Medical Supply, Inc. v Praetorian Ins. Co., 56 Misc 3d 133[A], 2017 NY Slip Op 50947[U] * 1 [App Term 2d Dept 2017]; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 55 Misc 3d 132[A], 2017 NY Slip Op 50426[U] *2 [App Term 2d Dept 2017]; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY Slip Op 50393[U] *1 [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 NY Slip Op 50947[U] *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY Slip Op 50426[U] *2; Longevity Med. Supply, Inc. v Praetorian Ins. Co., 2015 NY 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 NY Slip Op 51870[U] *1; Greenway Med. Supply Corp. v Hartford Ins. Co., 2017 NY Slip Op 50960[U] *1; Brand Med. Supply, Inc. v Praetorian Ins. Co., 2017 NY Slip Op 50947[U] *1; Broadway Massage Therapy, P.C. v Citiwide Auto Leasing, 2017 NY 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 NY Slip Op 51505[U] *1 [App Term 1st Dept 2019]; Utica Acupuncture P.C. v Amica Mut. Ins. Co., 55 Misc 3d 126[A], 2017 NY Slip Op 50331[U] *1 [App Term 1st Dept 2017]; Five Boro Med. Equip., Inc v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] * 1 [App Term 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] *1 [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 NY Slip Op 51590[U] *1 [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 NY Slip Op 51722[U] *1-2 [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 NY Slip Op 51722[U] *2, see MB Advanced Equip., Inc. v New York Cent. Mut. Fire Ins. Co., 51 Misc 3d 151[A], 2016 NY Slip Op 50863[U] *1 [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 AD3d 523, 528 [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 AD3d 687, 688 [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 AD3d 782, 784 [2d Dept 2019] [conclusory]; Deutsche Bank Natl. Trust Co. v Cunningham, 142 AD3d 634, 635 [2d Dept 2016] [failed to attest plaintiff was note holder at time foreclosure action commenced]; Fredette v Town of Southampton, 95 AD3d 940, 943 [affidavit tailored to avoid consequences of earlier testimony]; Montanaro v Kandel, 288 AD2d 275, 275 [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 NY3d 824 [2014]; Brill v City of New York, 2 NY3d 648 [2004]), and that Plaintiff has failed to raise factual issues requiring a trial (Nationwide Affinity Ins. Co. of Am. v George, 183 AD3d at 757; Nova Chiropractic Servs., P.C. v Ameriprise Auto & Home, 58 Misc 3d 142[A], 2017 NY Slip Op 51882[U] *1 [App Term 2d Dept 2017]; K.O. Med., P.C. v IDS Prop. Cas. Ins. Co., 57 Misc 3d 145[A], 2017 NY Slip Op 51454[U] *1 [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, and it is further

ORDERED that the clerk is directed to dispose of the index number for all purposes.

This constitutes the DECISION and ORDER of the Court.

Dated: May 27, 2021

Queens County Civil Court

Honorable Wendy Changyong Li, J.C.C.

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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