Appellate Division, Second Department
Jan 21, 2015
2015 NY Slip Op 00494
Insurer prevailed
The injured claimant's fall while exiting a parked vehicle did not arise from its use or operation where the claimant's knee buckled. The Appellate Division, Second Department, affirmed denial of the claimant's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. Under Insurance Law § 5103 (a) (1), first-party benefits require loss arising from use or operation of the vehicle itself. The claimant's EUO testimony, affidavit, benefits application, and signed statement described a knee giving way while exiting, without attributing the fall to vehicle use or operation. The insurer established its defense, and the claimant raised no triable issue.
Appellate Division, First Department
Jan 6, 2015
2015 NY Slip Op 00212
Insurer prevailed
⚠ Not followed by Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850)
A provider's failure to attend EUOs violates a condition precedent to no-fault coverage and vitiates the policy. In a declaratory judgment action, the insurer established mailing of two sets of EUO notices through matching certified-mail numbers on the notices, return receipts and Postal Service tracking report. That objective proof sufficed despite counsel's failure to attest to personal mailing or describe office mailing procedures. The attorney assigned to conduct the EUOs could establish the providers' nonappearance. Applying 11 NYCRR 65-1.1, the Appellate Division, First Department, affirmed summary judgment declaring no obligation to reimburse the two appealing providers for claims relating to the alleged accident and found no basis for additional discovery.
Appellate Term, Second Department
Jan 15, 2015
2015 NY Slip Op 50078(U)
Insurer prevailed
An out-of-state affidavit's missing certificate of conformity may be disregarded where no substantial right is prejudiced. The insurer's claims representative established timely mailing of denials despite noncompliance with CPLR 2309 (c) and Real Property Law § 299-a. Under CPLR 2001, the defect was nonfatal because the provider showed no prejudice. A fee schedule adjuster's affidavit also established proper reimbursement using the workers' compensation schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The provider raised no triable issue. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint following the grant of the insurer's summary judgment motion and denial of the provider's cross motion.
Appellate Term, Second Department
Jan 15, 2015
2015 NY Slip Op 50080(U)
Insurer prevailed
The provider's knee-support claim was premature because requested verification remained outstanding when the action commenced. A single claim form listed five medical supplies. The insurer's no-fault litigation examiner established timely mailing of the verification request and follow-up, and the insurer demonstrated that it had not received the requested material. The provider did not show that it supplied verification before suit. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny had not begun. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion seeking reimbursement for the KO custom rigid knee support.
