Krasner Chiropractic PC v. IDS Prop. & Cas. Ins.

Recitation, as required by CPLR §2219(a), of the papers considered in the review of Defendant’s Motion and Plaintiff’s Cross-Motion: Papers  Numbered Defendant’s Notice of Motion and affidavits / affirmations; Annexed exhibits            1-2 Plaintiff’s Cross-Motion / Affirmation in Opposition and affidavits / affirmation; exhibits;         3-4 Defendant’s Affirmation in Opposition to Plaintiff’s Cross-Motion              5 DECISION/ORDER   Upon review of the foregoing papers and argument having been heard on September 12, 2019: This action for first party no-fault benefits arises out of a motor vehicle accident that occurred on August 2, 2014 involving plaintiff’s assignor, Chetram Paraboo. Due to the injuries that he sustained in the accident, plaintiff’s assignor received treatment at Krasner Chiropractic, P.C. (hereinafter, plaintiff or “Krasner”). Plaintiff commenced this action seeking to recover $1,754.62 for services that were performed between August 4, 2014 and January 15, 2015 plus statutory interest and attorney fees. Defendant IDS Property & Casualty Insurance Company (hereinafter defendant or “IDS”) now moves for summary judgment dismissing the complaint pursuant to CPLR §3212. Defendant argues it is entitled to summary judgment as the subject occurrence was not a covered event as it was an intentional act and plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim. Alternatively, defendant argues that it is entitled to summary judgment based upon plaintiff-provider’s failure to appear for duly scheduled Examinations Under Oath (EUOs) or partial summary judgment as to Defendant’s prima facie case. Plaintiff cross-moves for partial summary judgment as to its own prima facie case and opposes defendant’s motion. In response, defendant has submitted opposition to plaintiff’s cross-motion. In support of its motion, Defendant submits the affirmation of Michael A. Callinan, Esq. of Bruno, Gerbino & Soriano, LLP and the affidavits of Senior Special Investigator James Glampe and Litigation Examiner Carrie Erickson. Defendant also submits copies of the police accident report relating to the subject occurrence; the EUO transcripts of Liloutie Sydnor (non-party owner of the vehicle operated by non-party Lisa Brown) taken on October 13, 2014; of plaintiff’s assignor, Chetrum Paraboo, taken on November 24, 2014; of Lisa Brown (non-party operator of the vehicle in which plaintiff’s assignor was a passenger) taken on December 2, 2014; and, of Glenis Brown (non-party husband of Liloutie Sydnor and the father of operator Lisa Brown) taken on March 23, 2015. In his affidavit, Mr. Glampe, states that the subject occurrence was not a covered event in that it was an intentional or staged act. He selectively provides a recitation of alleged discrepancies in the testimony of each of the above stated EUO witnesses regarding the subject occurrence. He also claims that the police accident report relating to the subject occurrence and a witness stated that the driver of the host vehicle, non-party Lisa Brown, was attempting to make an extremely dangerous and illegal right turn.¹ In his affidavit, Mr. Callinan states that he is a partner with the firm of Bruno, Gerbino & Soriano, LLP, attorneys for defendant. In that capacity, he is personally responsible for the day to day handling of the within matter and all claims referred to his firm by defendant and its parent company Ameriprise Financial, Inc., Mr. Callinan sets forth the policies and procedures relating to the scheduling, confirmation and taking of EUOs in the ordinary course of business for the within matter. According to Mr. Callinan, in an effort to verify the medical bills for treatment rendered an EUO of plaintiff-provider was scheduled for January 19, 2015 and February 27, 2015 (see, defendant’s moving papers at Ex. S, T and X). The EUO request, dated December 19, 2014², scheduled the EUO of plaintiff-provider for January 19, 2015. An amended EUO request dated December 24, 2014³ was sent requesting the EUO for the same date. On January 15, 2015, a letter was received from plaintiff’s counsel advising that plaintiff-provider would not appear at the scheduled EUO since the claims had been denied. In response, defendant sent a letter acknowledging plaintiff’s letters advising that the previously denied claims were being reconsidered and requesting alternate dates for the EUO. On January 19, 2015, plaintiff-provider failed to appear for the EUO, and defendant proceeded to place a statement on the record. A second EUO request letter, dated January 22, 2015⁴, scheduled the EUO for February 27, 2015. On or about January 23, 2015 and February 2, 2015, correspondence was exchanged between the attorneys as to defendant’s previously issued denials and the status of plaintiff-provider’s claims in light Lisa Brown’s request to be provided with another opportunity to appear for her EUO. By letter, dated February 25, 2015,⁵ defendant reiterated to plaintiff-provider’s counsel that the previously denied claims were being reconsidered and to provide dates upon which plaintiff-provider would be available to appear for an EUO. On February 27, 2015, plaintiff-provider failed to appear, and a statement was placed on the record. Mr. Callinan was present in his office on January 19, 2015 and February 27, 2015. If plaintiff-provider had appeared for its EUO on either day, he personally would have conducted said examination. In her affidavit, Ms. Erickson initially states that an investigation of the subject occurrence determined that it was a staged intentional loss rather than an accident. She also asserts that plaintiff-provider failed to appear for three EUOs⁶ that were needed to determine the facts of the alleged loss and to verify that all treatment and medical supplies billed on behalf of plaintiff’s assignor were received. She further asserts that each of the five claimed bills were denied within thirty days of receipt or within thirty days of plaintiff’s failure to appear for an EUO.⁷ Ms. Erickson also sets forth the policies and procedures utilized in the regular course of business for the creation and maintenance of delay letters with the Explanation of Benefits and the denial of claim forms — including those relating to the within matter (see, defendant’s moving papers at Ex. D, E, F, G, H, I, J and L). She also sets forth the policies and procedures by which mail is received and sent from defendant’s offices and the methods by which the dates of same are recorded in the appropriate claim files. In opposition to defendant’s motion and in support of its cross-motion, plaintiff argues that defendant has failed to demonstrate that the subject incident was not a covered event; defendant’s denials are late and invalid as defendant failed to establish that it properly sought the EUOs; defendant deliberately defaulted plaintiff at the EUOs; defendant never formally rescinded its earlier denials; and, there is no authority which would allow defendant to belatedly assert a new defense or issue verification requests beyond the statutory deadline. Plaintiff also argues that the testimony contained within the above stated affidavit of Ms. Erickson and the NF-3′s annexed to defendant’s moving papers as Ex. C clearly demonstrate and establish plaintiff’s prima facie case. Defendant opposes the within cross-motion arguing that plaintiff has failed to establish that defendant failed to timely deny any of the claims at issue or prove their prima facie case that the prescribed statutory billing forms had been mailed and received, and that the payment of the no-fault benefits was overdue. The portion of defendant’s motion seeking summary judgment on the basis that the subject occurrence was not a covered event because it was an intentional act and that plaintiff’s assignor made misrepresentations of fact and false and/or fraudulent statements in the presentation of the claim is denied. Defendant has failed to make a prima-facie showing of entitlement to summary judgment. While assorted portions of the EUO testimony offered by the above stated affiants do conflict, said conflicts serve to create, rather than remove, issues of fact regarding how the subject occurrence took place. Furthermore, even if the above stated police accident report were in admissible form, which it is not as it is not certified as a business record pursuant to CPLR §4518 and the officer did not witness or perform any investigation into the occurrence. The portion of defendant’s motion seeking summary judgment on the basis that plaintiff failed to appear for a duly scheduled EUO is also denied and the defense of EUO no-show is precluded. As noted above, defendant initially requested plaintiff-provider’s appearance at an EUO after it had received and denied plaintiff-provider’s first three bills on the basis that the subject occurrence was not a covered event and that plaintiff’s assignor, Chetram Paraboo, had failed to appear for an EUO. Defendant’s request for plaintiff-provider’s appearance at an EUO was sent after the denial of the first three bills and prior to defendant’s receipt of bills 4 and 5. At the time of the initial EUO request of plaintiff-provider, there were no outstanding bills or claims. This is a case of first impression wherein the defendant, after issuing a denial for one or more timely submitted claims, without notice to the plaintiff, decides to “reconsider” said claims while demanding that plaintiff-provider appear for an EUO relating to the previously denied claims. The legislature established specific and uniform guidelines relating to the time and way no-fault claims are submitted, reviewed and denied. In Dermatossian v. New York City Tr. Auth., 67 NY2d 219 (1986), the Court of Appeals stated that “To implement this legislative aim of curtailing delay and reducing expense in the adjustment of motor vehicle accident claims, the regulations (see, 11 NYCRR 65.15) are written to encourage prompt payment of claims, to discourage investigation by insurers, and to penalize delays. Permitting evidence in a personal injury lawsuit of the fact that the defendant (if self-insured) or its insurer had paid the plaintiff the statutorily obligated first-party benefits would unquestionably frustrate the very purpose of the No-Fault Law by discouraging insurers from making prompt and voluntary payment of claims.” There is no provision or exception in the No Fault statutes that provide for the defendant to unilaterally “review” cases again. This would obviate the intent and purpose of the No-Fault law and create a dangerous precedent that could be used by defendants to improperly request additional verification such as EUO’s or Independent Medical Examinations. Defendant is bound by its denials of November 17, 2014 and November 25, 2014 (See, Ex. E, F and H of defendant’s moving papers) thereby making any EUO request of plaintiff-provider untimely. Accordingly, defendant’s motion for summary judgment is denied and plaintiff’s cross-motion is granted to the extent that plaintiff has demonstrated its prima facie case. The sole issue for trial is whether this is a covered event due to misrepresentations of the facts or it being a staged accident. The parties to the within matter are directed to appear for the trial of this matter on December 2, 2019 at 10:00 am in Part 58 of the Courthouse located at 927 Castleton Avenue, Staten Island, New York. The remaining contentions of the parties are denied as moot. This constitutes the decision and order of the Court. Dated: November 12, 2019 Staten Island, NY ASN notified by BLG on November 12, 2019.