Appellate Division, Second Department
Feb 25, 2015
2015 NY Slip Op 01594
Provider prevailed
The insurer's requests to restrain and preliminarily enjoin no-fault actions were denied for failure to establish the required showings. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, in the insurer's coverage declaratory judgment action. The insurer failed to show likely success, imminent nonspeculative harm, injury not compensable by money damages, or favorable equities to support enjoining all no-fault actions arising from the accident.
Appellate Division, Second Department
Feb 25, 2015
2015 NY Slip Op 01601
Split result
Overdue no-fault benefits bear simple interest at 2% per month, rather than compound interest. The Appellate Division, Second Department, modified a judgment after a nonjury trial by deleting compound interest and remitting for recalculation under 11 NYCRR 65-3.9 (a) and Insurance Law § 5106 (a), while affirming awards of basic and excess no-fault benefits. The insurer's basic-coverage defense was raised for the first time on appeal, and its excess-coverage defense was unpreserved because it neither referenced the governing regulations at trial nor requested judicial notice under CPLR 4511 (b). Neither qualified for review as an unavoidable pure question of law. The interest challenge did qualify for review despite lack of preservation.
Appellate Division, First Department
Feb 19, 2015
2015 NY Slip Op 01538
The insurer's common-law subrogation claim for defense costs was barred by its insured's waiver and the three-year limitations period. The Appellate Division, First Department, affirmed denial of the plaintiff insurer's summary judgment motion and dismissal on the defendant insurer's cross motion. The insured had signed a stipulation discontinuing and waiving all cross claims in the underlying personal injury action without reserving subrogation rights. The subrogee had no greater rights than its insured. Independently, CPLR 214 (5) imposed the underlying personal injury claim's three-year period running from the accident, unlike statutory no-fault subrogation accruing upon payment. Even assuming additional-insured status, the claim was untimely.
Appellate Division, Second Department
Feb 18, 2015
2015 NY Slip Op 01413
Insurer prevailed
An insurer need not pay facility fees for office-based surgery under Public Health Law § 230-d absent statutory or regulatory authorization. The Appellate Division, Second Department, reversed, granted the insurers summary judgment, and remitted for a declaration that these fees were not payable first-party benefits. Insurance Law § 5102 incorporates § 5108's fee-schedule limitations. Facility-fee schedules applied to Public Health Law article 28 facilities, not this accredited practice. The default provision, 11 NYCRR 68.5, fills gaps for particular services absent from schedules; it does not authorize a new category of fees where an existing schedule is inapplicable to the provider. The court left open whether § 230-d created a new class of medical facility.
Appellate Division, Second Department
Feb 4, 2015
2015 NY Slip Op 00876
Provider prevailed
The insurer failed to establish a statutory ground to vacate a master arbitrator's award confirming payment of no-fault benefits. The Appellate Division, Second Department, affirmed denial of the CPLR article 75 petition and confirmation of the award. The insurer claimed that additional verification under 11 NYCRR 65-3.5 (f) remained outstanding, but the arbitrator found that the provider complied and that the insurer did not appear to act in good faith. Vacatur grounds under CPLR 7511 are narrow. The master arbitrator's confirmation had evidentiary support and a rational basis, and the court could not decide whether the master arbitrator erred in applying the law.
Appellate Term, First Department
Feb 25, 2015
2015 NY Slip Op 50164(U)
Split result
The insurer failed to establish that acupuncture claims under CPT codes 97039 and 97026 were ineligible for reimbursement. The Appellate Term, First Department, modified the summary judgment order to reinstate those claims and otherwise affirmed dismissal of claims under CPT codes 97810, 97811 and 99203. The insurer established fee-schedule overcharges for the dismissed claims; the provider raised no triable issue concerning mailing or fee calculations. A denial mailed on Monday was timely because the 30-day deadline under 11 NYCRR 65-3.8 (c) fell on Saturday, applying General Construction Law § 20. For moxibustion and infrared treatment, listing codes in the physical medicine schedule did not bar reimbursement; 11 NYCRR 68.5 (b) permitted consideration of charges for similar procedures.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 50222(U)
Insurer prevailed
A default declaratory judgment conclusively determining no obligation to pay no-fault benefits bars a contrary recovery under res judicata. After the provider commenced this benefits action, the insurer obtained a default order in Supreme Court, New York County, declaring no obligation to pay the provider and its assignor for the collision at issue. A recovery in Civil Court could destroy or impair rights established by that order, which remained a conclusive final determination despite entry on default. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint. The provider's remaining contentions lacked merit or were unpreserved.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 50219(U)
Insurer prevailed
The insurer established valid Pennsylvania rescission and that the assignor was not an innocent third party protected from its effect. Pennsylvania law controlled because the insured represented residence and garaging there, and the policy's only New York connection was the assignor's accident while driving an insured vehicle. Under Erie Ins. Exch. v Lake, rescission for material misrepresentation cannot defeat coverage for innocent third parties. The insurer showed fraud by the insured and, unlike the record in Delta Diagnostic Radiology, P.C. v Infinity Group involving the same accident, additional facts establishing that the assignor was not innocent. The provider failed to raise a triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 50218(U)
Insurer prevailed
The insurer's timely EUO requests tolled the denial period beyond the assignor's earlier IME nonappearances. Initial EUO and IME requests were mailed within 15 business days of claim receipt under 11 NYCRR 65-3.5 (b), followed by timely follow-up requests under 11 NYCRR 65-3.6 (b). Denials issued within 30 days after the second EUO nonappearance were timely under 11 NYCRR 65-3.8 (a), although the IME nonappearances occurred more than 30 days before denial. Appearance at duly scheduled examinations was a condition precedent under 11 NYCRR 65-1.1. The provider's counsel affirmation raised no triable issue. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 25458
Insurer prevailed
The insurer's uncontradicted attorney affirmation established that the summary judgment order was not entered on consent. The attorney, who personally attended oral argument, denied consent, and a copy supplied on the return date lacked the disputed notation. All copies recited oral argument. The Appellate Term, Second Department, held that denial of resettlement was appealable because the insurer sought correction of a factual recital rather than substantive or decretal relief. It reversed and granted resettlement to delete the consent and nonappealability notation, vacated its earlier dismissal of the insurer's appeal, and reinstated that appeal. The insurer was required to perfect within 30 days, subject to possible dismissal for noncompliance.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 50215(U)
Provider prevailed
The injured claimant's complaint adequately pleaded a no-fault benefits claim and gave the insurer notice of the transactions to be proved. It alleged an accident while operating a nonparty's insured vehicle, identified the policy, and alleged no-fault coverage, timely notice, and failure to pay submitted bills. Under CPLR 3211 (a) (7), liberal construction and acceptance of the allegations as true disclosed a cognizable cause of action. The Appellate Term, Second Department, affirmed the denial of the insurer's dismissal motion. It also upheld leave to supplement the pleading under CPLR 3025 (b), finding no improvident exercise of discretion by District Court, Nassau County.
Appellate Term, Second Department
Feb 24, 2015
2015 NY Slip Op 50221(U)
Insurer prevailed
The insurer's cross motion for summary judgment on res judicata and collateral estoppel grounds was upheld on appeal. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion in this assigned no-fault benefits action, for the reasons stated in the companion appeal decided the same day, No. 2013-1661 K C.
Appellate Term, Second Department
Feb 23, 2015
2015 NY Slip Op 50199(U)
Insurer prevailed
The provider failed to show a reasonable excuse for submitting late opposition after stipulating to a summary judgment briefing schedule. Civil Court granted the insurer's summary judgment motion on default after declining to consider the untimely opposition. Seeking vacatur under CPLR 5015 (a) (1), the provider's attorney attributed the delay to a heavy workload. The Appellate Term, Second Department, deemed that explanation mere neglect rather than an excusable default and noted the absence of any explanation for waiting almost 10 months to seek vacatur. It affirmed the order, insofar as appealed from, denying the provider's motion and reached no other issue.
Appellate Term, Second Department
Feb 23, 2015
2015 NY Slip Op 50198(U)
Insurer prevailed
The provider's benefits action was barred by a default declaratory judgment resolving coverage for the same accident under res judicata. Supreme Court, New York County, declared that the assignor was not an eligible injured person and that the insurer need not pay the assignees' claims. The Appellate Term, Second Department, treated the order as a conclusive final determination on the merits; a contrary recovery could impair rights established in that action. Entry of a long-form order rendered moot any challenge to the earlier determination's finality. The court affirmed the denial of the provider's summary judgment motion and, searching the record under CPLR 3212 (b), granted the insurer summary judgment dismissing the complaint despite its failure to cross-move.
