Appellate Term, Second Department
Aug 31, 2009
2009 NY Slip Op 52362(U)
Insurer prevailed
MVAIC established that the assignor was not a qualified person, and its lack-of-coverage defense was not subject to preclusion. MVAIC moved for summary judgment because the assignor had not supplied proof of New York residency. Civil Court denied its motion and granted the provider's cross motion. The Appellate Term, Second Department, found MVAIC's papers established that the assignor was not qualified under Insurance Law § 5202 (b) and therefore not covered under Insurance Law § 5221 (b) (2). Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., it held the coverage defense unprecluded, reversed the provider's judgment, vacated the underlying order, granted MVAIC's motion dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Aug 31, 2009
2009 NY Slip Op 52363(U)
Provider prevailed
MVAIC failed to establish a meritorious defense in its initial papers seeking vacatur of the providers' default judgment. Insurance Law § 5214 did not bar entry of a default judgment in an action naming MVAIC as defendant where it had defaulted. MVAIC's moving papers made no attempt to show a meritorious defense, and its belated effort to do so in reply should have been disregarded. The Appellate Term, Second Department, reversed the order granting vacatur and denied MVAIC's motion, preserving the providers' default judgment; it found consideration of whether MVAIC had demonstrated a reasonable excuse unnecessary.
Appellate Term, Second Department
Aug 31, 2009
2009 NY Slip Op 52308(U)
Split result
The insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance. The provider sought unpaid balances for acupuncture services rendered by a licensed acupuncturist. Its billing manager's affidavit established the admissibility of the supporting records under CPLR 4518. Under 11 NYCRR 65-3.8, the insurer's failure to prove timely denial entitled the provider to summary judgment on one claim's unpaid portion. For the remaining claims, timely partial payments and denials permitted use of the chiropractic acupuncture fee schedule. The Appellate Term, Second Department, reversed the judgment, awarded the provider summary judgment on the one unpaid balance, left dismissal of the remaining claims undisturbed, and remitted for statutory interest and attorney's fees.
Appellate Term, Second Department
Aug 31, 2009
2009 NY Slip Op 52832(U)
Provider prevailed
An action to recover first-party no-fault benefits from a self-insurer is subject to the six-year statute of limitations. The providers sued for assigned benefits, and the self-insurer obtained summary judgment dismissing the complaint under the three-year limitation in CPLR 214 (2). The providers argued that CPLR 213 (2), governing contractual obligations or liabilities, applied. Following Spring World Acupuncture, P.C. v NYC Tr. Auth., the Appellate Term, Second Department, reversed the order and denied the self-insurer's motion. A no-fault benefits action against this self-insured entity was governed by the same six-year limitation as an action against an insurer under a policy.
Appellate Term, Second Department
Aug 31, 2009
2009 NY Slip Op 52536(U)
Insurer prevailed
The insurer established the assignor's failure to attend scheduled IMEs and timely mailing of the scheduling letters. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's complaint and denying the provider's cross motion. The insurer's proof addressed scheduled chiropractic and acupuncture IMEs and established mailing through a standard office practice or procedure designed to ensure proper addressing and mailing. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Tuncel v Progressive Cas. Ins. Co., the court sustained dismissal based on nonappearance. The provider's remaining contention lacked merit.
