In this no-fault-insurance coverage action, plaintiff American Transit Insurance Company moves without opposition for default judgment against the alleged injured person, defendant Nadine Ferguson, and a number of Fergusons medical-provider assignees who have not appeared in this action. The motion is denied.
The information provided in American Transits motion papers does not establish that it satisfied the timeliness requirements of the applicable no-fault regulations, as required to obtain default or summary judgment. (See American Tr. Ins. Co. v Alcantara, 203 AD3d 535, 536 [1st Dept. 2022].) Fergusons counsel notified American Transit of the underlying collision in March 2019 (see NYSCEF No. 16 at 5); and the record suggests that Ferguson also submitted an NF-2 benefits application to American Transit in April 2019 (see id. at 1). American Transit sent Ferguson requests to appear for an independent medical examination (IME) on August 26, 2019, and September 11, 2019. (See NYSCEF No. 18 [scheduling letters]; NYSCEF No. 14 at 4-10 [affidavits attesting to generation and transmittal of scheduling letters].) But American Transit has not established when the IME requests were sent relative to American Transits receipt of NF-3 verification forms from Fergusons medical providers.
The only NF-3 form appearing in the record reflects that it was received by American Transit on November 13, 2019 (NYSCEF No. 19)—a month after the date on American Transits denial of claim (see NYSCEF No. 17). Nor has American Transit provided a basis to conclude that it requested Fergusons IME before it had received any NF-3 forms in the first place, as would be required to exempt the request from the applicable regulatory timeliness requirements. (See Mapfre Ins. Co. of NY v Manoo, 140 AD3d 468, 469 [1st Dept 2016].)
In short, American Transit has not demonstrated that it asked Ferguson to appear for an IME before receiving any verification forms from one of her medical providers; or that it requested Fergusons IME within 15 days after receiving a verification form as required under 11 NYCRR 65-3.5(b). For the same reason, American Transit has not established that the requested IME was scheduled to be held within 30 calendar days from the receipt of the prescribed verification forms, as required under 11 NYCRR 65-3.5(d). (See Alcantara, 203 AD3d at 536.)
Accordingly, it is
ORDERED that American Transits motion for default judgment is denied; and it is further
ORDERED that if American Transit does not file a renewed motion for default judgment against the defaulting defendants within 30 days of entry of this order, the action will be dismissed as against those defendants.
Gerald Lebovits, J.