Opinion
2017–08494 Index 605673/16
05-13-2020
NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA, Respondent, v. Iesha GEORGE, et al., Defendants, Jamaica Wellness Medical, P.C., et al., Appellants.
Kopelevich & Feldsherova, P.C., Brooklyn, N.Y. (David Landfair of counsel), for appellants. Hollander Legal Group, P.C. (Allan S. Hollander and Harris J. Zakarin, P.C., Melville, NY, of counsel), for respondent.
Kopelevich & Feldsherova, P.C., Brooklyn, N.Y. (David Landfair of counsel), for appellants.
Hollander Legal Group, P.C. (Allan S. Hollander and Harris J. Zakarin, P.C., Melville, NY, of counsel), for respondent.
CHERYL E. CHAMBERS, J.P., SHERI S. ROMAN, JEFFREY A. COHEN, LINDA CHRISTOPHER, JJ.
DECISION & ORDER
In an action for a judgment declaring that the plaintiff is not obligated to pay certain no-fault insurance benefits, the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., appeal from an order of the Supreme Court, Nassau County (James P. McCormack, J.), entered July 11, 2017. The order granted the plaintiff's motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.
ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Nassau County, for the entry of a judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C., on behalf of the defendants Andy Williams, Amanda Nixon, and Shaquille Swan.
The defendants Andy Williams, Amanda Nixon, and Shaquille Swan (hereinafter collectively the individual defendants) allegedly were injured in a motor vehicle accident and assigned their rights to recover for no-fault benefits under the vehicle owner's insurance policy to the defendants Jamaica Wellness Medical, P.C., LVOV Acupuncture, P.C., and United Wellness Chiropractic, P.C. (hereinafter collectively the medical provider defendants). The plaintiff commenced this action for a judgment declaring that it is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants on the ground that the individual defendants failed to appear for two scheduled examinations under oath (hereinafter EUOs). The plaintiff moved for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. The medical provider defendants opposed the motion. In an order entered July 11, 2017, the Supreme Court granted the plaintiff's motion. The medical provider defendants appeal.
" ‘The failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath ... is a material breach of the policy, precluding recovery of the policy proceeds’ " ( Interboro Ins. Co. v. Clennon, 113 A.D.3d 596, 597, 979 N.Y.S.2d 83, quoting Argento v. Aetna Cas. & Sur. Co., 184 A.D.2d 487, 487–488, 584 N.Y.S.2d 607 ). An insurer may establish its prima facie entitlement to judgment as a matter of law based on the failure to submit to an EUO by establishing that the letters scheduling the EUOs were timely and properly mailed, that the insured failed to appear at two scheduled EUOs, and that the insurer issued a timely and proper denial of the claims (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 A.D.3d 1005, 1007, 985 N.Y.S.2d 116 ; Interboro Ins. Co. v. Clennon, 113 A.D.3d at 597, 979 N.Y.S.2d 83 ).
Here, the plaintiff established, prima facie, that the letters scheduling the EUOs were timely and properly mailed by submitting an affidavit from an individual who had personal knowledge of the standard office practice for ensuring that the letters are properly addressed and mailed (see Progressive Cas. Ins. Co. v. Metro Psychological Servs., P.C., 139 A.D.3d 693, 694, 32 N.Y.S.3d 182 ). In opposition, the medical provider defendants failed to raise a triable issue of fact because they did not submit any evidence that the letters were not properly mailed. The medical provider defendants' mere denial of receipt was insufficient to rebut a presumption that the letters were received (see Nassau Ins. Co. v. Murray, 46 N.Y.2d 828, 829–830, 414 N.Y.S.2d 117, 386 N.E.2d 1085 ).
The plaintiff also established, prima facie, that the individual defendants failed to appear at two scheduled EUOs by submitting the affidavits of individuals with personal knowledge that the individual defendants failed to appear at the location of the EUOs on the dates they were scheduled (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 721, 827 N.Y.S.2d 217 ). In opposition, the medical provider defendants failed to raise a triable issue of fact. They did not submit evidence to establish that the first EUO was mutually rescheduled (see DVS Chiropractic, P.C. v. Interboro Ins. Co., 36 Misc.3d 138[A], 2012 N.Y. Slip Op. 51443[U], 2012 WL 3139771 [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists.] ).
Additionally, the plaintiff established, prima facie, that it issued a timely and proper denial of the claims by demonstrating that the denials were sent within 30 days of the second scheduled EUO, through affidavits from individuals who had personal knowledge as to the standard office practice for ensuring that denials are properly addressed and mailed (see 11 NYCRR 65–3.5 [b]; 65–3.8[a][1]; Progressive Cas. Ins. Co. v. Metro Psychological Servs., P.C., 139 A.D.3d at 694, 32 N.Y.S.3d 182 ). The affidavits submitted by the medical provider defendants in opposition failed to raise a triable issue of fact because they did not directly contradict the affidavits submitted by the plaintiff with regard to its standard office practices for addressing and mailing denial letters.
Furthermore, the medical provider defendants' contention that the plaintiff's motion for summary judgment should have been denied because the plaintiff failed to either pay or deny four of the medical provider defendants' bills is without merit because the bills were sent more than 45 days after service was rendered (see 11 NYCRR 65–1.1 [d] ).
Accordingly, we agree with the Supreme Court's determination to grant the plaintiff's motion for summary judgment, in effect, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants. Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Nassau County, for the entry of judgment, inter alia, declaring that the plaintiff is not obligated to pay claims for no-fault insurance benefits submitted by the medical provider defendants on behalf of the individual defendants (see Lanza v. Wagner, 11 N.Y.2d 317, 334, 229 N.Y.S.2d 380, 183 N.E.2d 670 ).
CHAMBERS, J.P., ROMAN, COHEN and CHRISTOPHER, JJ., concur.