Court of Appeals
Mar 29, 2011
2011 NY Slip Op 02437
Provider prevailed
An intentional vehicular assault on an innocent insured is an accident under the insured's own UM, PIP and death benefit endorsements. A driver intentionally struck the insured pedestrian, who died after surgery. The Court of Appeals modified the order to declare coverage under the UM endorsement, affirmed coverage under the PIP and death, dismemberment and loss of sight endorsements, and remitted the attorney fee question. The occurrence was unexpected from the insured's perspective, and the endorsements did not specifically exclude intentional conduct. The court distinguished McCarthy because recovery arose under the victim's own policy rather than a state fund and did not indemnify criminal acts. It also relied on 11 NYCRR 60-1.1 (f) to inform coverage interpretation; two judges dissented from the UM ruling.
Appellate Division, Fourth Department
Mar 25, 2011
2011 NY Slip Op 02191
Provider prevailed
A dispute over a workers' compensation offset against monthly no-fault benefits is arbitrable under Insurance Law § 5106 (b). The injured claimant sought arbitration after the insurer denied no-fault benefits, and the insurer petitioned for a permanent stay. The Appellate Division, Fourth Department, affirmed denial of the petition because the denial presented a dispute concerning liability for first-party benefits. It rejected the argument that arbitration could not address whether the workers' compensation offset exceeded the monthly benefit limit, citing Insurance Law § 5102 (a) (2). Refusal to stay arbitration also did not deprive the insurer of its right to pursue a loss-transfer claim against the proposed additional respondents.
Appellate Division, Second Department
Mar 22, 2011
2011 NY Slip Op 02379
Split result
The insurer failed to establish grounds under CPLR 5015 (a) to reduce a judgment based on belatedly asserted policy exhaustion. After the hospital obtained judgment upon appellate summary judgment, the insurer sought modification based on policy limits and payments to other providers. It identified no applicable subdivision of CPLR 5015 (a), and its employee's affidavit did not qualify as newly discovered evidence under CPLR 5015 (a) (2) because unavailability during the prejudgment proceedings was not shown. Extraordinary relief in the interest of justice was unwarranted because exhaustion was raised only after judgment. The Appellate Division, Second Department, affirmed denial of modification and separately denied the hospital's motion to dismiss the appeal as frivolous and obtain sanctions and attorney fees.
Appellate Division, First Department
Mar 17, 2011
2011 NY Slip Op 01948
Insurer prevailed
⚠ Criticized by American Tr. Ins. Co. v Acosta (2022 NY Slip Op 01097)
⚠ Criticized by Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. (2021 NY Slip Op 21340)
⚠ Not followed by Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850)
An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness. The Appellate Division, First Department, affirmed summary judgment declaring no coverage for the providers' assigned claims and denying their dismissal motion. Nonappearance breached a coverage condition under 11 NYCRR 65-1.1, permitting denial retroactive to the loss despite initial medical necessity denials. Blanket denials and a different examination specialty did not change the result. The insurer established compliant requests and nonappearance; the providers raised no factual issue concerning reasonableness. Their willfulness argument was unpreserved and meritless because that doctrine concerns liability policies. The court also rejected the contention that every IME must be performed by a physician, noting reimbursement for necessary services rendered by nonphysicians.
Appellate Division, Second Department
Mar 8, 2011
2011 NY Slip Op 01828
Split result
The insurer's timely denials were fatally defective because they misstated the bill and disputed amounts and named the wrong applicant. The hospital moved for summary judgment, and the insurer cross-moved to dismiss on the ground that the claim was untimely. Although both denials issued within 30 days of receipt of completed hospital facility forms, they identified the assignor rather than the hospital as applicant. Under 11 NYCRR 65-3.4 (c) (11), timely issuance did not cure those defects. The Appellate Division, Second Department, reversed, granted the hospital's motion and denied the insurer's cross motion. Separately, it granted the insurer's motion to strike a point in the hospital's reply brief and denied the hospital's cross motion to strike material from the insurer's brief.
Appellate Division, Second Department
Mar 1, 2011
2011 NY Slip Op 01628
Provider prevailed
The hospital satisfied verification requests by supplying the precise version of the NF-5 and assignment forms the insurer requested. The providers established mailing, receipt and overdue payment through billing forms, third-party biller affidavits and certified mail records under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The insurer had requested signed January 2004 forms without stamps. The hospital's documented responses supplied exactly those forms, so the insurer could not defeat summary judgment by later calling them outdated. Its representative's affidavit did not raise a triable issue concerning compliance. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the providers' motion for summary judgment on the first cause of action.
Appellate Division, First Department
Mar 1, 2011
2011 NY Slip Op 01525
Insurer prevailed
A no-fault claim against a common carrier is subject to CPLR 214 (2)'s three-year period where no contract exists with the assignor. The Appellate Division, First Department, reversed the Appellate Term's order, granted the carrier's summary judgment motion, and dismissed the provider's complaint as time-barred. The absence of a contract between the assignor and the carrier was undisputed. Following Aetna Life & Cas. Co. v Nelson, the court reasoned that the No-Fault Law creates independent statutory rights and obligations, so the obligation to pay benefits arose from statute and the three-year limitations period applied.
Appellate Term, Second Department
Mar 29, 2011
2011 NY Slip Op 50562(U)
Insurer prevailed
MVAIC established that the assignor filed no timely notice of claim and sought no leave to file a late notice. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint for assigned no-fault benefits. MVAIC's motion challenged the failure to supply a timely completed, notarized notice of intention to make a claim. Because the requirements of Insurance Law § 5208 (a) and (c) were not met, the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to applying for payment of no-fault benefits from MVAIC therefore remained unsatisfied.
Appellate Term, First Department
Mar 29, 2011
2011 NY Slip Op 50473(U)
Insurer prevailed
The insurer established mailing of the IME notices and the assignor's nonappearance, while the provider raised no triable issue. In this assigned no-fault action, the insurer's documentary submissions established its defense, and the provider failed to raise a factual issue concerning either the reasonableness of the requests or nonattendance. The provider's objection that the insurer did not prove mailing to the assignor's attorney was unavailing because the record contained no competent proof of representation concerning the claim. The Appellate Term, First Department, reversed the order denying summary judgment, granted the insurer's motion, and dismissed the complaint.
Appellate Term, First Department
Mar 24, 2011
2011 NY Slip Op 50430(U)
An arbitrator exceeds the arbitrator's power by directing payment beyond a no-fault policy's $50,000 limit. Policy exhaustion may be asserted despite failure to deny within 30 days, and the objection is preserved if raised in opposition to confirmation. In the insurer's proceeding to vacate an award, its submissions raised a factual issue whether the limit had been exhausted before it was obligated to pay the provider's claim. Applying 11 NYCRR 65-1.1 and 65-3.15 and Matter of Brijmohan v State Farm Ins. Co., the Appellate Term, First Department, reversed the order denying vacatur and granting confirmation and remanded for a framed issue hearing on exhaustion. The insurer's remaining arguments were rejected.
Appellate Term, First Department
Mar 24, 2011
2011 NY Slip Op 50432(U)
Provider prevailed
MVAIC's summary judgment motion challenging the assignor's qualification for coverage was denied on appeal. The Appellate Term, First Department, affirmed, citing MVAIC v Interboro Med. Care & Diagnostic, PC and Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. It also found no showing that exhaustion was required and rejected MVAIC's outstanding-verification argument, raised for the first time on appeal, as without merit.
Appellate Term, Second Department
Mar 17, 2011
2011 NY Slip Op 50447(U)
Insurer prevailed
The provider's action was premature because it had not answered timely mailed verification requests before commencing suit. The insurer's claims examiner established mailing of the initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) through standard office practices. The medical biller's mere denial of receipt did not overcome the presumption of proper mailing and receipt. Because the provider had not responded before suit, the insurer's time to pay or deny had not begun to run under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, treated the appeal as taken from the ensuing judgment under CPLR 5501 (c) and affirmed dismissal on summary judgment, reaching no other issue.
Appellate Term, Second Department
Mar 15, 2011
2011 NY Slip Op 50438(U)
Split result
The insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue. The claims examiner established timely mailing of the denials; handwritten notations did not invalidate them or require further explanation under the circumstances. The affirmed peer reviews supplied a factual basis and medical rationale for finding the equipment unnecessary, and reliance on other providers' records did not make them inadmissible. The provider nevertheless rebutted the insurer's showing sufficiently to require trial. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its summary judgment motion, and denied that motion, while leaving undisturbed the denial of the insurer's cross motion.
Appellate Term, Second Department
Mar 15, 2011
2011 NY Slip Op 50436(U)
Insurer prevailed
A clerk's error calculating statutory no-fault attorney fees may be corrected under CPLR 5019 when the calculation is ministerial. After a nonjury trial awarded benefits, statutory interest, and attorney fees, the clerk entered the provider's proposed judgment with $4,259.42 in fees. Following LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., the Appellate Term, Second Department, applied Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 to aggregate all bills for each insured, subject to an $850 maximum. The governing regulation and interpretation existed when judgment was entered, and the fee calculation had not been judicially determined. The court affirmed vacatur of the levy and sale notice and remitted for a corrected judgment awarding $850 in fees.
Appellate Term, Second Department
Mar 3, 2011
2011 NY Slip Op 50328(U)
Insurer prevailed
The provider failed to establish that its unpaid claim was denied late or that the denial's basis lacked legal merit. Its summary judgment papers included only part of the denial form, omitting both the denial date and the stated reason. The provider's affiant also did not identify when the denial was received. Proof of nonpayment alone therefore did not establish prima facie entitlement: the provider showed neither a denial outside 30 days nor a conclusory, vague, or legally meritless basis. The Appellate Term, Second Department, affirmed denial of the provider's motion on a different ground and did not consider the sufficiency of the insurer's opposition.
Appellate Term, Second Department
Mar 2, 2011
2011 NY Slip Op 50336(U)
Insurer prevailed
Service under CPLR 312-a was defective because the insurer did not return a signed acknowledgment and no alternative service was made. The provider sought assigned no-fault benefits, and the insurer moved to dismiss for lack of personal jurisdiction. The provider argued that the insurer should be compelled to sign the acknowledgment or that service by another method should be permitted. An unreturned acknowledgment required the provider to effect personal service in another manner, which it had not done. The Appellate Term, Second Department, reversed the order denying dismissal and granted the insurer's motion.
Appellate Term, Second Department
Mar 2, 2011
2011 NY Slip Op 50331(U)
Insurer prevailed
MVAIC defaulted by failing to submit written opposition to the provider's summary judgment motion, despite counsel's oral opposition. The Appellate Term, Second Department, reversed the order denying vacatur and granted MVAIC's motion under CPLR 5015. The Civil Court had treated the application as renewal or reargument because it concluded that oral opposition prevented a default. Applying CPLR 2219 (a), the appellate court held that the absence of written opposition constituted a default, making vacatur the proper remedy to seek. Under the circumstances presented, MVAIC established both a reasonable excuse and a potentially meritorious defense, although the decision did not describe either showing.
Appellate Term, Second Department
Mar 2, 2011
2011 NY Slip Op 50335(U)
Insurer prevailed
The insurer proved mailing of IME notices and timely denials and the assignor's nonappearance; the provider raised no triable issue. An employee of the scheduling entity established mailing through its standard office practices, and the insurer's litigation examiner established timely mailing of denials. The examining physicians' affirmations and chiropractors' affidavits established failure to attend the scheduled IMEs. The provider submitted only counsel's reply affirmation, which did not raise a factual issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. The parties' remaining contentions were not reached.
Trial court, Second Department
Mar 15, 2011
2011 NY Slip Op 50396(U)
Provider prevailed
An insurer that defaulted in opposing the provider's summary judgment motion cannot obtain relief by moving to renew that motion. The insurer served opposition and a cross motion about a month after the stipulated deadline, and those papers were rejected. Its permitted oral challenge to the provider's prima facie showing did not prevent the resulting judgment from being a default. The Civil Court, Kings County, denied renewal under CPLR 2221 (e) (2) and (3), explaining that relief required vacatur under CPLR 5015 (a) (1). Alternatively, the rejected papers were not new facts, and the unsupported explanation that an attorney's departure delayed the response amounted to neglect and supplied neither reasonable justification nor a reasonable excuse.
Trial court, First Department
Mar 14, 2011
2011 NY Slip Op 50793(U)
Split result
No-fault interest is simple under 11 NYCRR 65-3.9 (a) and may be tolled for unreasonable delay in entering judgment. The Civil Court, New York County, directed simple interest and tolled accrual 30 days after the providers obtained summary judgment. The providers waited ten months to submit judgment, miscalculated interest, and delayed correcting it after a stay. Under 11 NYCRR 65-3.9 (d) and CCA § 1401, delay beyond the 30-day preparation period without good cause was unreasonable. The court granted the insurer a stay of enforcement pending proper entry, denied another stay of entry because the existing stay remained effective, and denied vacatur or modification because the only identified error, interest miscalculation, had already been addressed.
Trial court, Second Department
Mar 8, 2011
2011 NY Slip Op 21082
An insurer seeking default judgment on subrogated no-fault and SUM claims must establish legally viable causes of action. The District Court, Nassau County, denied the insurer's motion without prejudice to renewal. Under UDCA 202 and 211, separate economic-loss and pain-and-suffering claims, each within the $15,000 limit, supported jurisdiction despite exceeding that limit in aggregate. The no-fault claim failed because the insurer did not address whether its insured had commenced a personal injury action; Insurance Law § 5104 (b) permits an independent recovery action only if the insured failed to sue within two years. The SUM claim lacked factual allegations and party-affidavit proof under CPLR 3215 (f) of serious injury as defined by Insurance Law § 5102 (d).
