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Arco Medical New York, P.C. As Assignee of Jewdhan, Isardat v. Lancer Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS Appellate Term, Second Department


December 23, 2011

ARCO MEDICAL NEW YORK, P.C. AS ASSIGNEE OF JEWDHAN, ISARDAT,
RESPONDENT,
v.
LANCER INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered August 19, 2009.

ARCO Med. N.Y., P.C. v Lancer Ins. Co.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 23, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order denied defendant's motion to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., for depositions, and granted plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff's cross motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved to compel plaintiff to produce Gracia Mayard, M.D., and Richard Berardi, D.O., two of plaintiff's principals, for depositions, and plaintiff cross-moved for summary judgment. Defendant opposed plaintiff's cross motion, arguing that it had timely denied plaintiff's claims on the sole ground that Dr. Mayard and Dr. Berardi had failed to appear for examinations under oath (EUOs). The Civil Court denied defendant's motion and granted plaintiff's cross motion, finding that defendant had failed to establish that its initial and follow-up EUO requests had been timely mailed.

On appeal, defendant argues that its motion to compel plaintiff to produce Dr. Mayard and Dr. Berardi for depositions should have been granted because the motion sought information regarding "treatment" and plaintiff's "billing practices," which information is material and necessary to the defense of this action. However, we find that these defenses are precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dists 2007), and therefore defendant is not entitled to the discovery it seeks (see A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 11 Misc 3d 71 [App Term, 2d & 11th Jud Dists 2006]).

Turning to plaintiff's cross motion, since defendant raises no issue on appeal with regard to plaintiff's establishment of a prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The affirmation submitted by defendant's attorney established that the EUO scheduling letters were mailed in accordance with his law firm's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant requested the EUOs on February 13, 2007, within 15 days of receipt of the first two claim forms at issue in this case (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b]). When the doctors failed to appear for the EUOs on the scheduled February 28, 2007 date, defendant mailed a second request on March 7, 2007, rescheduling the EUO for March 21, 2007. While the Civil Court suggested, in the order appealed from, that the follow-up request was premature because it was sent less than 30 days after the initial request (see Insurance Department Regulations [11 NYCRR] § 65-3.6 [b]), we hold that, when the verification sought is an examination under oath or an independent medical examination, a follow-up request is not premature when sent within 10 days of the failure to appear for the initial scheduled examination.

Defendant demonstrated that the doctors failed to appear for either of the scheduled EUOs (see W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]) and that each of the claims at issue had been denied on April 11, 2007 on that ground (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). It is clear, on this record, that the first two claims at issue, which plaintiff submitted on January 31, 2007, were properly tolled and, ultimately, timely denied by the April 11, 2007 denial of claim form. Since defendant is therefore not precluded from interposing its defense that plaintiff failed to comply with a condition precedent to coverage (see Insurance Department Regulations [11 NYCRR] § 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U]), plaintiff's cross motion for summary judgment should have been denied with respect to these claims.

The next four claims, like the first two, were denied more than 30 days after their receipt. However, they were submitted on February 16, February 22 and March 5, 2007, after the initial EUO request letter had been sent. The issue presented is whether the initial EUO request acted to toll the time to pay or deny these subsequently received claims, or whether defendant was required to take additional action in order to create a toll. The No-Fault Regulations are silent as to the tolling effect of a pending EUO request upon subsequent claims. Under the circumstances of this case, we find that, once defendant served plaintiff with requests for EUOs, the resulting toll of defendant's time to pay or deny plaintiff's claims applied to each claim form which was submitted by the same plaintiff for the same assignor subsequent to that request, but before plaintiff breached a policy condition by failing to appear for two properly scheduled EUOs. Consequently, the April 11, 2007 denial of claim was timely as to these claims, and defendant raised a triable issue of fact by demonstrating that the defense that plaintiff had failed to comply with a condition precedent to coverage applied to these claims as well, which defense was not precluded.

The last claim at issue in this case was submitted on April 2, 2007 and denied by defendant within 30 days of its receipt (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]) on the ground that plaintiff, prior to submitting the claim, had failed to appear for an EUO requested by defendant with regard to the same accident and the same assignor. This claim was similarly timely and properly denied, as defendant demonstrated that plaintiff failed to comply with a condition precedent to coverage.

In view of the foregoing, plaintiff's cross motion for summary judgment is denied. We note that defendant has not sought summary judgment dismissing the claims. Weston, J.P., and Rios, J., concur.

Golia, J., taking no part.

Decision Date: December 23, 2011

20111223

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