6 decisions · 2 Appellate Division · 1 Appellate Term · 3 trial courts
Issues this month: Policy issues 3 Medical necessity 2 EUO no-show 2 Timeliness and preclusion 2 Defaults and vacatur 1 Fee schedule 1
The defendants' motion to vacate a no-fault default judgment was denied for failure to show a reasonable excuse and a meritorious defense. The Appellate Division, Second Department, affirmed the order denying vacatur of the judgment entered upon their failure to appear or answer the provider's complaint. The decision applied the requirement that both showings be made and stated that neither was established.
The claimant proved continuing disability after the IME cutoff, but wage benefits required recalculation using the substitute-services figure. After a nonjury trial on affidavits, the Appellate Division, Third Department, upheld continued benefits and housekeeping expenses under Insurance Law § 5102 (a) (3), but modified the orders and remitted for recalculation and counsel fees. Under 11 NYCRR 65.15 (g) (8) and 65.15 (o) (2) (x) (b), the self-employment verification's $240 weekly substitute-services figure controlled over the application's $450 earnings assertion. Wage reimbursement was 80% of $240 during total disability and 80% of half that figure during part-time restrictions, subject to Insurance Law § 5102 (a) and (b) (1). Interest and counsel fees were governed by Insurance Law § 5106 (a) and 11 NYCRR 65.17 (b) (6).
The providers obtained summary judgment because EUOs were unauthorized under the applicable regulations and fraud was unsupported. The Appellate Term, Second Department, affirmed the order granting the providers' motion and denying the insurer's cross motion for summary judgment dismissing the complaint. The providers established that they submitted complete proof of their claims and that the insurer neither paid nor denied them within the statutory period under Insurance Law § 5106 (a). The regulations applicable at the time did not authorize EUOs, so the assignor's nonappearance did not defeat recovery. The insurer's attorney offered only unsubstantiated hypotheses and suppositions concerning fraud in the insurance application, which were insufficient to raise a triable issue.
The assignor had no duty to attend an EUO under the no-fault regulations governing this claim before the revised EUO provisions took effect. The Civil Court, Queens County, granted the provider's cross motion for summary judgment despite the assignor's two EUO nonappearances. Under former 11 NYCRR 65.12 (e), an EUO was not equivalent to the required written proof of claim. The two nonappearances did not establish willful, persistent noncooperation constituting a material policy breach. The insurer also failed to show that the policy provision requiring an EUO belonged to the no-fault endorsement; liability conditions could not qualify that coverage. Although the denial was timely, the insurer was precluded from asserting medical necessity because neither denial mentioned that defense.
An insurer must act within 30 days after receiving an arguably responsive verification response, even if it considers the response incomplete. After trial, the Civil Court, Queens County, awarded the provider judgment with statutory interest and fees. The insurer timely requested verification of acupuncture services and sent a follow-up request, but filed the provider's eventual response without further action because records remained missing. Under 11 NYCRR 65.15 (g), the court held that the response ended the toll and required payment, denial, or further verification. The insurer could not indefinitely leave the claim pending without identifying the deficiencies. Its failure to act within 30 days precluded its noncoverage affirmative defenses.
An insurer's postaccident insolvency constitutes a disclaimer or denial of coverage for MVAIC eligibility. The Civil Court, Queens County, granted the injured claimants' motion compelling MVAIC to accept late notices of claim and represent the uninsured tortfeasor. Following Matter of Taub, the court treated insolvency as the equivalent of denied coverage under Insurance Law § 5208 (a) (3) (B), which provides a 180-day notice period. The court found it unclear when the claimants learned of the insolvency, but calculated a two-month delay using their possible knowledge date. MVAIC failed to demonstrate significant prejudice: the tortfeasor had counsel from the action's commencement, and prior counsel's records were available for investigation and defense. The court found the delay insufficient to justify rejection.
Headnotes, outcome labels and monthly summaries are our own summaries, not the courts’ words; the decision itself is the authority. Months follow the date a decision was handed down; new decisions are added monthly, so a recent month can still grow.