Appellate Division, Second Department
Sep 17, 2014
2014 NY Slip Op 06188
Insurer prevailed
The insurer's clerical-oversight affidavit and potentially meritorious defense justified vacating its default judgment. The hospital had obtained a clerk's judgment after the insurer failed to appear or answer. The Appellate Division, Second Department, affirmed the order vacating that judgment, extending the insurer's time to appear, and compelling acceptance of its late notice of appearance. Under CPLR 5015 (a) (1), the insurer supplied a reasonable excuse through an employee's affidavit describing delayed forwarding of the summons with notice to counsel. The court also relied on the potentially meritorious defense, lack of willfulness, absence of prejudice, and preference for resolving cases on the merits in sustaining relief under CPLR 3012 (d).
Appellate Term, First Department
Sep 22, 2014
2014 NY Slip Op 51407(U)
Provider prevailed
The insurer's peer review of earlier acupuncture services did not establish that the later services sued upon lacked medical necessity. The report rested on perceived vagueness in the provider's initial report and treatment notes and addressed a period preceding the bills at issue. The reviewer did not conclude that the assignor's condition could never warrant further acupuncture, so the report did not justify denial of all future treatment without more. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying dismissal of the disputed claim and granting the provider summary judgment upon searching the record. Dismissal of the provider's separate remaining claim was not before the court because the provider did not cross-appeal.
Appellate Term, First Department
Sep 16, 2014
2014 NY Slip Op 51391(U)
Provider prevailed
The insurer's fee schedule motion failed to address the regulation governing services performed outside New York. The provider sought assigned no-fault benefits for epidural injections administered at its New Jersey office. The insurer relied exclusively on a workers' compensation fee schedule defense without addressing 11 NYCRR 68.6, which makes the prevailing fee in the provider's geographic location the permissible charge for services performed outside the state. Its moving papers did not discuss the proper location of the provider, which apparently maintained New York and New Jersey offices, or the prevailing New Jersey fee. Attempts to cure these deficiencies in reply were untimely and raised factual issues. The Appellate Term, First Department, reversed the order, denied the insurer's motion, and reinstated the complaint.
Trial court, First Department
Sep 30, 2014
2014 NY Slip Op 24356
The loss-transfer award was vacated because the arbitrator refused to give a prior jury verdict and judgment res judicata effect. A jury had found the self-insurer's bus operator free of fault and another driver entirely responsible. In compulsory arbitration under Insurance Law § 5105, the no-fault insurer sought reimbursement from the self-insurer. The arbitrator refused an adjournment and consideration of the verdict because it was first presented at the hearing. The Civil Court, New York County, found that refusal irrational under the heightened review applicable to compulsory arbitration and distinguished Falzone's voluntary-arbitration collateral-estoppel ruling. It granted the self-insurer's petition, denied the insurer's cross motion to confirm and remanded to the same arbitrator under CPLR 7511 (d).
Trial court, Second Department
Sep 8, 2014
2014 NY Slip Op 24259
Provider prevailed
The insurer failed to establish an objective basis for its EUO request after the assignor timely objected to appearing. The District Court, Nassau County, denied summary judgment on the EUO no-show defense despite undisputed nonappearance and timely denials. The assignor objected because benefits had already been denied following an IME cutoff. The court rejected the contention that an IME cutoff barred later EUO requests where treatment and claim submissions continued, explaining that an IME cutoff was not a complete defense and EUO testimony could be relevant. Nevertheless, the timely objection preserved the challenge, and the insurer offered no explanation or objective basis for the request as required by 11 NYCRR 65-3.5 (e).
