Party Statement: Unitrin Advantage Insurance Company v. Aba Chiropractic, P.C., Apple Acupuncture, P.C., Auto Rx, L.C., Citimedical I, Pllc, Corona Medical Plaza, P.C., Elmont Rehab Pt, P.C., Ema Medical Equipment Corp., Fast Care Medical Diagnostics, Pllc, Frank S. Segreto, M.D., Health Balance Medical, P.C., Satya Drug Corp. D/B/A Farmacia Central, Ugp Acupuncture, P.C., Dwayne Corwise, Angela Salguedo

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                                FILED: NEW YORK COUNTY CLERK 04/01/2022 09:11 PM                                                     INDEX NO. 154804/2017
NYSCEF DOC. NO. 171                                                                            RECEIVED NYSCEF: 04/01/2022




          SUPREME COURT OF THE STATE OF NEW YORK
          COUNTY OF NEW YORK
          --------------------------------------------------------------------------X
          UNITRIN ADVANTAGE INSURANCE COMPANY,                                          Index No.: 154804/2017

                                             Plaintiff,                                 REPLY AFFIRMATION

                                    -against-

          ABA CHIROPRACTIC, P.C., APPLE ACUPUNCTURE,
          P.C., AUTO RX, L.C., CITIMEDICAL I, PLLC, CORONA
          MEDICAL PLAZA, P.C., ELMONT REHAB PT, P.C.,
          EMA MEDICAL EQUIPMENT CORP., FAST CARE
          MEDICAL DIAGNOSTICS, PLLC, FRANK S. SEGRETO,
          M.D., HEALTH BALANCE MEDICAL, P.C., SATYA
          DRUG CORP. d/b/a FARMACIA CENTRAL, UGP
          ACUPUNCTURE, P.C., DWAYNE CORWISE and
          ANGELA SALGUEDO,

                                              Defendants.
          --------------------------------------------------------------------------X

                  HARLAN R. SCHREIBER, an attorney duly admitted to practice law in the State

          of New York, hereby affirms the following to be true under the penalties of perjury as

          provided by CPLR § 2106:

          1.      I am a member of the law firm of Goldberg, Miller & Rubin, P.C., attorneys for

          plaintiff Unitrin Advantage Insurance Company (“Unitrin”). As such, I am fully

          familiar with the facts and circumstances of this case based upon a review of the file

          maintained by my firm’s office.


          2.      I submit this reply affirmation in further support of Unitrin’s motion Granting

          renewal under CPLR 2221(e)(2) of this Court’s July 9, 2020 order denying Unitrin’s

          motion for summary judgment and upon renewal, granting summary judgment,




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          pursuant to CPLR § 3212, against defendants ABA CHIROPRACTIC, P.C., CORONA

          MEDICAL PLAZA, P.C., and ELMONT REHAB PT, P.C. (“answering defendants”).


          3.      In Unitrin’s initial motion papers, it argued that the Court’s prior denial of

          summary judgment primarily based on Unitrin Advantage Ins. Co. v. Dowd, 67 Misc.3d

          1219 (Sup. Ct. 2020) (“Unitrin v. Dowd”) which was subsequently reversed by the First

          Department, should be reconsidered and that the First Department has made

          abundantly clear that a request for No-Fault examination under oath (“EUO”) or

          independent medical examination (“IME”) is considered timely under 11 NYCRR 65-3.5

          if the request is made within 15 business days of receipt of any claim form submitted on

          behalf of a No-Fault claimant and not the first claim form received.


          4.      Answering defendants have opposed this motion arguing: (a) the First

          Department decision in Hertz Vehicles LLC v. Best Touch PT, PC, 162 A.D.3d 617 (1st

          Dep’t 2018 (“Hertz Vehicles”) is still good law and mandates the denial of Unitrin’s

          motion, (b) Unitrin v. Dowd, which related to failure of a provider to appear for EUOs

          has no bearing on the instant dispute because this dispute relates to the failure of a

          claimant to appear for IMEs, (c) and that subsequent First Department case law in

          American Tr. Ins. Co. v. Acosta, 2022 N.Y. Slip Op. 01097 (1st Dep’t 2022) also supports

          answering defendants’ position that the IME requests in this case were not timely

          requested.1




          1
           Answering defendants also argue in passing that Unitrin never proved that it mailed its IME notices and that
          answering defendants’ assignor failed to appear but this Court has already found to the contrary on these issues.




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          5.     As will be explained below, all of these arguments misread the First Department

          case law on this issue, which is now crystal clear that a No-Fault insurer demonstrates

          disclaimer on failure to appear for EUOs or IMEs by appending any claim form

          received within 15 business days of the request or any claim form received after the

          request.


          A.     HERTZ VEHICLES IS NOT RELEVANT TO UNITRIN’S APPLICATION


          6.     Answering defendants first assert that Hertz Vehicles is still “good law” and a

          basis to deny Unitrin’s motion.


          7.     A review of the case, however, shows that it does not address Unitrin’s position

          on timeliness of the IME requests.


          8.     In Hertz Vehicles, the First Department found that the insurer could not make a

          prima facie entitlement to judgment on failure to appear for EUOs because “none of the

          motion papers, including the affidavit by plaintiff's claims adjuster, annexes or gives the

          dates of the prescribed verification forms or other proofs of claim submitted by the

          medical provider defendants, it is not possible to determine whether the EUO notices

          were sent to them within 15 business days of plaintiff's receipt of the forms.”


          9.     The case merely articulates general holding that an insurer must attach claim

          forms to demonstrate an IME or EUO notice was timely requested under 11 NYCRR 65-

          3.5.




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          10.    It does not address the issue of whether the request must relate back to the first

          claim form received or whether any claim form submitted subsequently can constitute a

          timely request.


          11.    Therefore, Hertz Vehicles has no bearing on the merits of this case where a claim

          form was annexed but the parties contest whether timeliness should be calculated by

          the receipt date of the claim form annexed by Unitrin.


          B.     UNITRIN V. DOWD CONTROLS THIS DISPUTE


          12.    Answering defendants next argue that the First Department decision reversing

          Unitrin v. Dowd, which unambiguously supports Unitrin’s calculation of timeliness,

          does not apply because Unitrin v. Dowd involved a request for the EUO of provider and

          not IME scheduling.


          13.    Answering defendants offer no case law to support this argument and the text

          and case law prove the opposite.


          14.    Textually, 11 NYCRR 65-1.1 uses identical language to require appearance at

          EUO or IME as a condition precedent to coverage without any distinction.


          15.    Further, and even more tellingly, the First Department also makes no such

          distinction.


          16.    In its reversal of Unitrin v. Dowd, 194 A.D.3d 507 (1st Dep’t 2021), the First

          Department agreed with Unitrin’s position that any claim form received during the




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          claim process may be used to calculate the timeliness of an EUO request and, in support

          of this proposition, the Court cited to Unitrin Advantage Ins. Co. v. Bayshore Physical

          Therapy, PLLC, 82 A.D.3d 559 (1st Dep’t 2011) which related to IME scheduling.


          17.    This demonstrates that the First Department does not make a distinction between

          EUOs and IMEs for the purpose of calculating timeliness of the requests.


          18.    In light of both the plain text of the No-Fault regulations and the First

          Department treating EUOs and IMEs interchangeably, there is no basis for answering

          defendants’ argument that Unitrin v. Dowd is not binding on the instant case.


          19.    In that same vein, answering defendants argue that PV Holding Corp. v. AB

          Quality Health Supply Corp., 189 A.D.3d 645 (1st Dep’t 2020) is not controlling because it

          related to an EUO request that pre-dated the receipt of the claim form annexed to the

          insurer motion papers.


          20.    This misreads the text of the case, which specifically finds that the request for

          EUO “will apply to any claims, and is not determined on a bill by bill basis.” Id.


          21.    In other words, so long as the EUO or IME request of a claimant is made before

          receipt of a claim form or within 15 business days of receipt of any claim form

          submitted on behalf of that claimant, the request is timely.


          22.    In this case, there is no dispute that Unitrin has annexed a claim form within that

          time frame and it complied with this case law.




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          C.    SUBSEQUENT CASE LAW CITE BY ANSWERING DEFENDANTS IS ALSO
                NOT RELEVANT TO THE ISSUES HEREIN

          23.   Finally, answering defendants argue that American Tr. Ins. Co. v. Acosta, 2022 N.Y.

          Slip Op. 01097 (1st Dep’t 2022) demonstrates that that Unitrin’s IME request here was

          untimely.


          24.   This holding, however, is wholly consistent with Hertz Vehicles, which requires

          that an insurer attach a claim form that shows that the IME was scheduled timely.


          25.   In American Tr. Ins. Co. v. Acosta, the insurer failed to annex any claim forms, a

          fact that can be discerned from the appellate decision or a review of the ECF record for

          the underlying action. See ECF docket at 42.


          26.   The First Department properly found that this failure to annex a claim form

          prevent the insurer from making a prima facie case of entitlement on the issue of timely

          scheduling.


          27.   As noted above, Unitrin has annexed a claim form demonstrating the timeliness

          of its IME request and has complied with this case law.


          28.   Thus, answering defendants have offered no case law to contradict Unitrin’s

          instant motion.


                WHEREFORE, the plaintiff respectfully requests that its motion be granted in its

          entirety, and such further relief as this Court may deem just and proper.




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          Dated:      New York, New York
                      March 31, 2022


                                                    ____________________________
                                                       Harlan R. Schreiber. Esq.




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