No-Fault Decision

Seldom does a no-fault case, initiated in the Civil Court, wind its way to the Appellate Division. Further rare, are those occasions when a vigorous dissent can chart a course to the Court of Appeals. American Transit Ins. Co. v. Longevity Med. Supply, Inc., 2015 NY Slip Op 06761 (N.Y. App. Div. Sept. 15, 2015) is the case that may find its way to the high court if the carrier continues the appeal process. Here, Summary Judgment was denied to the Carrier on the grounds of the failure to establish that the Eligible Injured Person (EIP), failed to appear for scheduled Independent Medical Evaluations (IME) required by the N.Y. No Fault regulations, (11 NYCRR) § 65-3.5(d), which prescribes a 30-calendar-day time frame for the holding of IMEs. The majority held the Carrier's proof, submitted in support of the motion for summary judgment, failed to make out a prima facie case, leaving the issue as a question of fact for the trial Court. "Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2nd Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006])."

In a strong dissent, Judge Friedman opens the door to review by the Court of Appeals, "Contrary to the position taken by the dissent, the issue of whether plaintiff has failed to establish that the notices for the IMEs were timely, pursuant to 11 NYCRR 65-3.5(d), presents a question of law which this Court can review. Unlike the dissent, we find that plaintiff was required to submit proof of the timely notice in order to make a prima facie showing of entitlement to judgment as a matter of law. Any belated attempt by plaintiff to cure this deficiency in its prima facie showing by submitting evidence for the first time in reply would have been improper (see DiLapi v Saw Mill Riv., LLC, 122 AD3d 896, 900-901 [2nd Dept 2014]; Hawthorne v City of New York, 44 AD3d 544 [2007]; Scansarole v Madison Sq. Garden, L.P., 33 AD3d 517 [1st Dept 2006])." ....The majority sidesteps the preservation issue by asserting that plaintiff was obligated to establish compliance with the section 65-3.5(d) time frame as part of its prima facie burden in moving for summary judgment. However, no appellate court has ever so held...... While this Court, in affirming summary judgment for the insurer in Unitrin, stated that the insurer had "satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations" (82 AD3d at 560), the issue of the insurer's compliance or noncompliance with section 65-3.5(d) was not raised in that case. Thus, Unitrin's reference to the "time frames set forth in the no-fault implementing regulations" as part of an insurer's prima facie burden on a motion for summary judgment is dictum, not (as mischaracterized by the majority) a holding. Contrary to the majority's cavalier assertion that I "mistakenly" deny that it cites any authority for its position, Unitrin's statement about "time frames" does not constitute authority for the majority's position because that statement is not a holding on any issue that was actually raised in that case."