THOMAS J. McAVOY, Senior District Judge.
Plaintiff Lawrence Cross ("Plaintiff") commenced this action pro se asserting claims arising from an injury he allegedly suffered on October 2, 2007 "when a 2004 Toyota Camry Solara suddenly and unexpectedly accelerated striking plaintiff." See 2nd Am. Compl. ¶ 11, dkt. #36. After the Court decided State Farm Mutual Automobile Insurance Company's
Presently before the Court are Defendant's motion for summary judgment [dkt. #108]; Plaintiff's cross-motion for summary judgment [dkt. #117]; Plaintiff's motion challenging the Court's decision to strike his reply/sur-reply papers [dkt. #123]; Plaintiff's motion to appoint counsel for trial [dkt. #125], and Plaintiff's motion for a judicial settlement conference [dkt. #126].
The Court may grant summary judgment where "there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(a). A dispute is genuine if the relevant evidence is such that a reasonable jury could return a verdict for
A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In determining whether to grant summary judgment, the Court must view all admissible facts in the light most favorable to the nonmoving party, but "only if there is a `genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). The nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, 106 S.Ct. 1348, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a
The Local Rules of the Northern District require a party moving for summary judgment to submit a "Statement of Material Facts" which sets forth, with citations to the record, each material fact about which the moving party contends there exists no genuine issue. N.D.N.Y.L.R. 7.1(a)(3). Once a properly supported Local Rule 7.1(a)(3) Statement is submitted, the party opposing the motion must
Id. (underscoring in original).
The responding Statement of Material Facts is not a mere formality, and the courts apply this rule strictly. See N.Y. Teamsters Conference Pension & Ret. Fund v. Express Servs., Inc., 426 F.3d 640, 648-49 (2d Cir.2005) (upholding grant of summary judgment where "[t]he district court, applying Rule 7.1(a)(3) strictly, reasonably deemed [movant's] statement of facts to be admitted" because the nonmovant submitted a responsive Rule 7.1(a)(3) statement that "offered mostly conclusory denials of [movant's] factual assertions and failed to include any record citations."); Gubitosi v. Kapica, 154 F.3d 30, 31 n. 1 (2d Cir.1998) (per curiam) (accepting as true material facts contained in unopposed local rule statement of material facts); Meaney v. CHS Acquisition Corp., 103 F.Supp.2d 104, 108 (N.D.N.Y. 2000) (deeming movant's Rule 7.1(a)(3) Statement admitted where non-movant's response "set forth no citations — specific or otherwise — to the record") (emphasis in original); McKnight v. Dormitory Auth. of State of N.Y., 189 F.R.D. 225, 227 (N.D.N.Y.1999) (McAvoy, J.) ("deem[ing] the portions of Defendants' 7.1(a)(3) statement that are not specifically controverted by Plaintiff to be admitted"); Osier v. Broome County, 47 F.Supp.2d 311, 317 (N.D.N.Y.1999) (McAvoy, J.) (deeming admitted all facts in defendants' Rule 7.1(a)(3) statement where "plaintiff submitted thirteen pages of purported facts without any indication where those facts can be located in the record").
"[P]roceeding pro se does not otherwise relieve a litigant from the usual requirements of summary judgment." Viscusi v. Proctor & Gamble, 2007 WL 2071546, at *9 (E.D.N.Y. July 16, 2007); see also Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 2541 n. 46, 45 L.Ed.2d 562 (1975) ("The right of self-representation is not a license ... not to comply with relevant rules of procedural and substantive law."). Thus, while the Court must construe a pro se litigant's pleadings and papers liberally and interpret them to raise the strongest arguments that they suggest, Govan v. Campbell, 289 F.Supp.2d 289,
Plaintiff has not: (1) submitted an opposing Statement of Material Facts despite being advised of this obligation;
State Farm issued an automobile liability insurance policy to Plaintiff's wife, Sharon L. Cross, bearing policy number 44 4469-C04-52B which was in effect on October
On October 22, 2007, after State Farm was placed on notice of a no-fault claim by Plaintiff arising on October 2, 2007, State Farm sent Plaintiff the statutorily required New York Motor Vehicle No-Fault Insurance Law Cover Letter and Application for No-Fault Benefits. Lindley Aff., ¶ 4.
On December 7, 2007, State Farm sent Plaintiff a letter advising that his No-Fault Application for Benefits was not completely filled out. Id. ¶ 9. State Farm requested Plaintiff sign the application in all required areas and provide a detailed description of his injuries. Id. Further, State Farm advised Plaintiff that his claim would be delayed pending receipt of this information. Id. In addition, State Farm advised Plaintiff that it might have no duty to provide no-fault benefits under the Policy because "it was questionable whether bodily injury was caused by an accident." Id. ¶ 10.
On January 4, 2008, State Farm notified Plaintiff that it was exercising its right under the Policy to conduct an Examination Under Oath ("EUO"). Lindley Aff. ¶ 11. Plaintiff was advised that the law firm Levene, Gouldin & Thompson, LLP would be conducting the EUO and that he had the right to have counsel present at his expense. Id. ¶ 12. Thereafter, State Farm retained Levene, Gouldin & Thompson, LLP, Robert G. Bullis, Esq. of counsel,
On January 9, 2008, Attorney Bullis's office served Plaintiff and his wife, via regular and certified mail sent to 47 Beaver Street, Cooperstown, N.Y. 13326-1227 ("Plaintiff's address"),
On January 16, 2008, Attorney Bullis received from Mr. and Ms. Cross an objection to the EUO notice indicating: (1) they were denied of sufficient notice, (2) they objected to "the time and place," and (3) that Plaintiff "is injured and ill and cared for by his spouse and both are not available at this time." Bullis Aff. ¶ 4 & Ex. B. The objection further indicated that "the claimants will fully comply with article 31 of the civil rules of procedure when they are able to do so," and that "this claimant[']s attorney will be in contact with" State Farm. Id. On January 17, 2008, Attorney Bullis responded to Mr. and Ms. Cross' objections by proposing that the EUOs be conducted at their home. Bullis Aff., ¶ 5. Attorney Bullis also requested that Plaintiff and his wife provide him with the name and address of their counsel. Id.
After receiving no response to his January 17, 2008 correspondence, Attorney Bullis sent Mr. and Ms. Cross a follow up letter dated February 6, 2008. Id. ¶ 6. This letter again requested a response to Attorney Bullis's prior letter so that he could make arrangements for their EUOs, and requested that they ask their attorney to contact Attorney Bullis or to provide him with their attorney's contact information so that Mr. Bullis could arrange for their EUOs. Id.
On February 26, 2008, because neither Mr. Cross nor Ms. Cross responded to Attorney Bullis's January 17, 2008 or February 6, 2008 correspondences, Attorney Bullis served Plaintiff and his wife with another EUO notice. Bullis Aff. ¶ 7. This scheduled their EUOs for March 24, 2008 at 10 a.m. at the Otsego County Office Building, in Cooperstown, New York, and contained the same statement of purpose as did the prior EUO notice. Id. & Ex. E. On March 18, 2008, Attorney Bullis received from Mr. and Ms. Cross an objection to the second EUO notice. Id. ¶ 8. This objection was identical in form and substance to the objection Attorney Bullis received on January 16, 2008. Id. & Ex. F.
On March 21, 2008, Attorney Bullis responded to Mr. and Ms. Cross' objections and advised that the EUOs would proceed as scheduled on March 24, 2008. Bullis
On March 25, 2008, Attorney Bullis' office served Mr. and Ms. Cross, via regular mail and certified mail sent to Plaintiff's address, with another EUO notice. Bullis Aff. ¶ 11 This third EUO notice indicated that their EUOs would be conducted on May 5, 2008 at 10:00a.m. at the Otsego County Office Building, in Cooperstown, New York. Id. This third EUO notice contained the same statement of purpose as did the two prior EUO notices. Bullis Aff. Ex. I. On May 5, 2008, Mr. Bullis appeared for the EUOs at the designated date, time, and place. Id. ¶ 13. Mr. and Ms. Cross did not appear. Id. Mr. Bullis created a record of their failure to appear at the EUOs. Id. & Ex. J.
On May 13, 2008, State Farm was verbally advised by Levene, Gouldin & Thompson, LLP that Plaintiff failed to appear for his two scheduled EUOs. Lindley Aff. 13. On May 14, 2008, State Farm issued to Plaintiff a denial of his entire no-fault claim based upon his violation of a condition of the Policy that required him to attend an EUO. Id. ¶ 14.
State Farm received medical bills for treatment allegedly rendered to Plaintiff as a result of the October 2, 2007 incident from Chris Paige, PT; Dr. Anthony Cicoria; CMI; Mary Imogene Bassett Hospital; and Hanger Prosthetics and Orthotics. Lindley Aff. ¶ 15. State Farm also received from CMI, Dr. Cicoria, and Chris Paige, PT Assignment of Benefits ("AOB") forms executed by Plaintiff.
On November 10, 2007, State Farm received a bill from Hanger Prosthetics and Orthotics ("Hanger") for a November 2, 2007 service date. Lindley Aff. ¶ 19. On November 15, 2007, State Farm advised Hanger that State Farm had determined to delay this claim pending receipt of verification from the Plaintiff in the form of Plaintiff's Application for No-Fault Benefits. Id. A copy of this delay letter was mailed to Plaintiff. Id. When Plaintiff returned his Application for No-Fault Benefits around December 7, 2007, State Farm issued another delay letter to Hanger on December 12, 2007. Id. ¶ 20. This advised that additional verification from Plaintiff in the form of an EUO was required. Id. A copy of this delay letter was also mailed to Plaintiff. Id. State Farm issued additional delay letters to Hanger dated January 18, 2008, February 22, 2008, March 31, 2008, and May 5, 2008 advising that State Farm was continuing to delay Hanger's claim pending receipt of verification from Plaintiff in the form of an EUO. Id. ¶ 21. These letters were also mailed to
State Farm received medical bills from Mary Imogene Bassett Hospital for service dates from October 2, 2007 through October 5, 2007. State Farm issued a series of delay letters to Mary Imogene Bassett Hospital similar to those issued to Hangar, and mailed copies of these letters to Plaintiff. See Lindley Aff. ¶¶ 23-41. When State Farm was advised that Plaintiff failed to appear for his scheduled EUOs, it issued denial letters to Mary Imogene Bassett Hospital based upon Plaintiff's failure to appear for his scheduled EUOs. Id. Copies of these denial letters were also mailed to Plaintiff. Id.
State Farm argues that it is entitled to summary judgment on the grounds that: (1) Cross violated a condition precedent to insurance coverage by failing to attend scheduled examinations under oath ("EUO"); (2) Cross cannot challenge any denials from Hanger Prosthetics and Orthotics and Mary Imogene Bassett Hospital as he has not incurred any expense for their services, and even if Cross can challenge those denials they were timely denied upon Cross' breach of a policy condition to attend scheduled EUOs; and (3) Cross lacks standing to challenge any denials issued to CMI, Dr. Anthony Cicoria and Chris Paige, PT as he executed an Assignment of Benefits in those medical providers' favor.
Cross argues in opposition to the motion and in support of his cross-motion that: (1) he has not been afforded complete discovery; (2) his subpoena to Defendant's Insurance Agent, Joan Brown, is outstanding; (3) Defendant did not pay or deny coverage within thirty (30) days of receiving his No-Fault claim being submitted on October 31, 2007, as required by law; (4) Defendant was precluded from issuing a demand for an EUO because Defendant's investigator, Mark Augustus, had previously investigated the occurrence; (5) Defendant's conduct amounted to the intentional infliction of emotional distress; (6) a reasonable basis for the EUO was not stated in the EUO notices; (7) the question of whether Defendant's demand for an EUO was "reasonable" is a question of fact for a jury to decide; (8) he issued a revocation of the AOBs to CMI, Dr. Anthony Cicoria and Chris Paige, PT; (9) Defendant breached the contract by the aforementioned conduct; and (10) he is entitled to extra-contractual damages.
The Court will address the arguments seriatim, starting with Plaintiff's contentions.
Plaintiff's argument that Defendant's summary judgment motion cannot be decided at this time because he has not been afforded complete discovery, and because his subpoena to State Farm Insurance Agent Joan Brown is outstanding, implicates Fed.R.Civ.P. 56(d) (formerly Rule 56(f)). Rule 56(d) requires the nonmovant to show by affidavit or declaration that "for specified reasons, it cannot present facts essential to justify its opposition...." As indicated above, Plaintiff has not presented a proper affidavit or declaration on this motion, so his Rule 56(d) application fails on this basis alone. See
There is also no merit to Plaintiff's argument that Defendant failed to either pay or deny his No-Fault claim within the proper time period. New York's No-Fault Law requires the insurance carrier to either pay or deny a claim for No-Fault benefits within thirty (30) days from the date of receipt of a complete claim. N.Y. Ins. L. § 5106(a); 11 NYCRR 65-3.8(a)(1); Kingsbrook Jewish Medical Center v. Allstate Ins. Co., 61 A.D.3d 13, 871 N.Y.S.2d 680, 683 (2d Dep't 2009). Plaintiff did not submit his Application for No-Fault Benefits until December 7, 2007, and when he did Defendant promptly advised him that the form was not completely filled out and signed in all required places. Furthermore,
70A N.Y. Jur.2d Insurance § 1916 (Thomson Reuters, 2013) (citations omitted); see also Elmont Open MRI & Diagnostic Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 37 Misc.3d 802, 954 N.Y.S.2d 736, 739 (N.Y.Dist.Ct.2012).
Before Plaintiff returned the completed Application for No-Fault Benefits, Defendant notified him that it intended to examine him under oath. An EUO is a recognized procedure for seeking additional verification, Quality Psychological Services, P.C. v. Hartford Ins. Co., 38 Misc.3d 1210(A), Slip Copy, 2013 WL 172312, at *3 (N.Y.City Civ.Ct. Jan. 15, 2013), and a condition precedent to coverage under the Policy. Thus, the 30-day time period in which to pay or deny Plaintiff's claims was tolled during the period Defendant sought to conduct the EUO of Plaintiff. See Morris Medical, P.C. v. Amex Assur. Co., 37 Misc.3d 140(A), Slip Copy, 2012 WL 6554080, at *2 (N.Y.Sup.App.Term, Dec.
Plaintiff argues that Defendant's motion must be denied because the notices for the EUOs did not state a reasonable basis for the EUOs, and because the question of the reasonableness of the EUOs is for a jury to decide. The arguments are without merit.
Five Boro Psychological and Licensed Master Social Work Services, PLLC v. Geico General Ins. Co., 38 Misc.3d 354, 954 N.Y.S.2d 433, 435 (N.Y.City Civ.Ct.2012); see also 11 NYCRR § 65-3.5(e).
Plaintiff has provided no citation for the proposition that the "reasonableness" of the EUO must be set forth in the EUO notice, and the Court finds none. Further, Plaintiff was advised by State Farm on December 7, 2007 that State Farm might have no duty to provide no-fault benefits under the Policy because "it was questionable whether bodily injury was caused by an accident." Lindley Aff. ¶ 10. Shortly thereafter, and before Plaintiff submitted his completed No-Fault Application for Benefits form, State Farm advised him that State Farm was exercising its right under the Policy to examine him under oath. Id. ¶ 11. The EUO notices served on Plaintiff indicated that the purpose of the EUOs were to obtain Plaintiff and his wife's statements under oath "with respect to evidence material and necessary with respect to [his] application for no-fault benefits, the circumstances of the October 2, 2007 accident, the nature and extent of any injury sustained in said accident, the subsequent course of treatment regarding those injuries, the reporting of such accident to State Farm, and any other material relevant and [sic] information regarding your claim herein." Under these circumstances, it would have been readily apparent to a reasonable person that the purpose of the EUO was to gain information impacting the question of whether Plaintiff's bodily injury was caused by an accident — an objectively reasonable basis for the EUO.
Moreover,
Five Boro Psychological, 954 N.Y.S.2d at 435.
Although Plaintiff objected to the time and place of the EUOs, he lodged no pre-suit objection to the reasonableness of the EUO and failed to appear at the scheduled EUOs. Therefore, Plaintiff's current objection to the reasonableness of the EUO provides him no basis for relief. See Five Boro Psychological, 954 N.Y.S.2d at 435 ("The Appellate Term has determined that where a plaintiff fails to respond to the defendant's EUO requests it `will not be heard to complain that there was no reasonable basis for the EUO request.'");
Plaintiff's reliance on Celtic Medical P.C. v. Progressive Ins. Co., 194 Misc.2d 429, 755 N.Y.S.2d 209 (Dist.Ct., Nassau Co.2002) for the proposition that the reasonableness of an EUO is a question of fact for a jury to decide is misplaced. In Celtic Medical, the Nassau County District Court addressed the question of whether it was reasonable for an insurer to demand an EUO prior to the submission of a formal no-fault claim, and noted that the insured's address on the subsequently submitted
For these reasons, the Court finds no basis to deny Defendant's motion on the reasonableness of the decision to conduct an EUO of Plaintiff, or because the EUO notices did not state a reason for the examination.
Next, Plaintiff argues that Defendant was precluded from conducting an EUO because its investigator, Mark Augustus, previously investigated the occurrence. Plaintiff cites no authority for the proposition that an insurance company is precluding from examining a claimant under oath if its investigator conducted an investigation. Further, there is no evidence in the record that Mark Augustus conducted an investigation. Rather, Plaintiff merely offers Mr. Augustus's business card, apparently left for Plaintiff, with the hand-written notation for Plaintiff to call Mr. Augustus. There is no indication that the two spoke, or that Mr. Augustus conducted any substantive investigation precluding the need for an EUO. Therefore, the argument provides Plaintiff no relief.
In response to a motion for summary judgment, Plaintiff also argues that the Defendant's conduct amount to the intentional infliction of emotional distress. Plaintiff has neither pled such a claim in his Second Amended Complaint nor sought or been granted leave to amend to add this claim. It is well settled that papers on a motion for summary judgment is not the proper vehicle to add a new claim. McChesney v. Bastien, Slip Copy, 2012 WL 4338707, at *5 n. 14 (N.D.N.Y. Sept. 12, 2012) (citing cases).
Moreover, even if Plaintiff's papers were construed as a Rule 15 motion to amend the Second Amended Complaint, the motion would be denied. See Fed.R.Civ.P. 15(a)(2) (after the time to amend as of right has passed, "[t]he court should freely" grant leave to amend "when justice so requires"); Foman v. Davis, 371 U.S. 178,
Further, the allegations in Plaintiff's papers do not allege a meritorious basis for an intentional infliction of emotional distress claim. Such a claim requires a showing of: (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Conboy v. AT & T Corp., 241 F.3d 242, 258 (2d Cir.2001); Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). There can be liability under this tort only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society. Stuto, 164 F.3d at 827. The allegations in Plaintiff's memorandum of law concerning Defendant's handling of his No-Fault claim do not plausibly allege a course of conduct so extreme or outrageous as to be utterly intolerable in a civilized society. As such, it would be futile to add this claim.
Accordingly, Plaintiff's allegations alleging the intentional infliction of emotional distress are insufficient to defeat Defendant's motion for summary judgment or to warrant an amendment to the Second Amended Complaint.
Plaintiff also cannot seek extra-contractual damages in his Cross-Motion for Summary Judgment inasmuch as all causes of action that would justify such damages were previously dismissed. See 10/17/11 Dec. & Ord., dkt. #60, 2011 WL 4916534 (dismissing claims for breach of covenant of good faith and fair dealing, punitive damages, corporate malfeasance/tortious interference, New York Insurance Law § 2601 violations, fraud/misrepresentation of business records, independent tort of bad faith, consequential damages and unjust enrichment.)
As indicated above, Plaintiff failed to file a Statement of Material Facts in support of his cross-motion as required by Local Rule 7.1(a)(3). The failure of a moving party to file a properly supported Local Rule 7.1 Statement of Material Facts is fatal to a summary judgment motion. Riley v. Town of Bethlehem, 5 F.Supp.2d 92, 93 (N.D.N.Y.1998).
The Court also finds no merit to Plaintiff's separate motion for reconsideration of the Court's decision to strike Plaintiff's papers filed on October 5, 2012 [dkt. #120]. See Order to Strike, dkt. #121; Mot. for Recon., dkt. #123. The papers were filed without Court permission and were clearly intended to serve as reply papers on the cross-motion and as surreply papers on Defendant's summary judgment motion. The Local Rules provide that when a cross-motion is filed, "[t]he cross-moving party may not reply in further support of its cross-motion without the Court's prior permission." N.D.N.Y.
Without a Statement of Material Facts supporting the cross-motion, Plaintiff fails to establish that Defendant breached any term of the Policy, or that it denied his claims in violation of New York's No-Fault Law. Accordingly, Plaintiff's cross-motion for summary judgment is denied.
Based on the uncontested facts as discussed above, there is no material question of fact that State Farm timely noticed Plaintiff for an EOU, that he received the notices, that he did not appear for his EUOs, and that Defendant timely denied Plaintiff's claims for No-Fault benefits based upon his failure to attend the EUOs. Because the appearance of Plaintiff at a duly noticed EUO is a condition precedent to Defendant's liability on the Policy, Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720, 722, 827 N.Y.S.2d 217 (2d Dep't 2006) (citing 11 NYCRR 65-1.1); LDE Medical Services, P.C. v. Encompass Ins., 29 Misc.3d 130(A), 918 N.Y.S.2d 398 (Table), 2010 WL 4242233, 2010 N.Y. Slip Op. 51845(U) (N.Y.Sup.App.Term 2nd, 11th And 13th Judicial Districts, Oct. 20, 2010) (also citing 11 NYCRR 65-1.1), Plaintiff's failure to attend the EUOs entitles Defendant to judgment dismissing Plaintiff's remaining claims. Inasmuch as Plaintiff's claims have been dismissed, the Court need not reach the issues of whether Plaintiff properly revoked the AOBs to certain providers, or whether he incurred expenses from other providers.
Plaintiff's motion to appoint counsel for trial [dkt. #125], and his motion for a judicial settlement conference [dkt. #126] are denied as moot.
The John Doe defendant has not been identified or served with process. The time to do so has expired. Consequently, all claims against John Doe are dismissed for failure to prosecute.
For the reasons set forth above:
The Clerk may enter judgment and close the file in this matter.
(1) A
(2) Copies of all
(3) A response memorandum of law (no more than 25 pages long and formatted in compliance with Local Rule 10.1) that responds to each of the legal arguments contained in the defendants' memorandum of law, and that contains any additional legal arguments you may have in response to the defendants' motion for summary judgment.
Dkt. #110-1 (emphasis in original, footnotes omitted).
11 NYCRR § 65-3.5(e).
