Court of Appeals
Jul 1, 2015
2015 NY Slip Op 05626
Insurer prevailed
A statutory SUM endorsement excludes police vehicles from "motor vehicle" coverage unless the endorsement specifically provides otherwise. An injured police passenger sought SUM benefits under the driver's personal automobile policy after an underinsured vehicle struck their police car. Following Amato, the majority applied Insurance Law § 3420 (f) (2) (A) and Vehicle and Traffic Law § 388 (2), retained that precedent under stare decisis, and distinguished coverage afforded to named insureds. The Court of Appeals reversed and granted the insurer's petition to permanently stay arbitration; three judges dissented, favoring coverage under the driver's endorsement. The majority left open any available remedies under the No-Fault Law, a lawsuit, or the claimant's own insurance.
Appellate Division, Second Department
Jul 29, 2015
2015 NY Slip Op 06343
An arbitrator may decide whether a carrier is an insurer subject to mandatory loss-transfer arbitration despite its nonappearance. The petitioning no-fault insurer paid benefits to a rider injured when a horse collided with its insured taxi and sought reimbursement from the stables' commercial liability carrier. Under Insurance Law § 5102 (g), Insurance Law § 5105 and 11 NYCRR 65-4.11 (a) (1), that carrier was not an insurer subject to compulsory arbitration: its policy afforded no no-fault coverage for this accident, and the No-Fault Law did not preclude tort liability against its insureds. The threshold issue was not an unpleaded affirmative defense, and the award had a rational basis. The Appellate Division, Second Department, affirmed denial of vacatur and confirmation of the award, favoring the commercial liability carrier.
Appellate Division, Second Department
Jul 15, 2015
2015 NY Slip Op 06122
Provider prevailed
The insurer failed to establish through admissible evidence that three collisions were staged to obtain insurance benefits. In a declaratory judgment action against two providers, the insurer also asserted that defendants breached the policy by failing to attend scheduled depositions, but offered no evidence from someone with personal knowledge of mailing the requests. Its uncertified police reports and unsigned, unsworn deposition transcript were inadmissible, the latter under CPLR 3116. Its investigator lacked personal knowledge of the collisions and relied principally on inadmissible evidence. The Appellate Division, Second Department, reversed the judgment insofar as appealed from, denied summary judgment against the appealing providers, and remitted for further proceedings. The providers prevailed without review of their opposition papers because the insurer failed to establish prima facie entitlement to judgment.
Appellate Division, Second Department
Jul 15, 2015
2015 NY Slip Op 06101
Insurer prevailed
A no-fault dispute may be adjudicated de novo under Insurance Law § 5106 (c) only if the master arbitrator's award is at least $5,000. The provider sought a de novo determination after the master arbitrator vacated the arbitrator's award in its entirety. That vacatur effectively made no monetary award, leaving the award below the statutory threshold and barring either party from maintaining a de novo action. The Appellate Division, Second Department, affirmed the order granting the insurer's motion to dismiss for lack of subject matter jurisdiction under CPLR 3211 (a) (2).
Appellate Division, First Department
Jul 7, 2015
2015 NY Slip Op 05891
Insurer prevailed
The insurers proved mailing of EUO letters through counsel's affirmation and obtained a default declaration of no payment obligation. Suspecting overbilling by a durable medical equipment provider, the insurers requested EUOs under the policy and 11 NYCRR 65-1.1. The provider failed to appear, answer the declaratory judgment complaint, or oppose the default motion. Counsel's affirmation described the mailing procedures and stated under penalty of perjury that counsel personally verified the mailing process for every EUO letter. This adequately proved mailing. The Appellate Division, First Department, reversed the order, insofar as appealed from, granted the insurers' default motion, and declared that they were not obligated to pay the claims at issue.
Appellate Term, Second Department
Jul 27, 2015
2015 NY Slip Op 51133(U)
Insurer prevailed
The treating provider's deposition was material and necessary to the insurer's medical necessity defense despite a pending summary judgment motion. The insurer noticed the deposition six days after the provider served its motion. The provider objected under CPLR 3214 (b), and the insurer moved to compel after nonappearance. Under CPLR 3101 (a), reasonable discovery includes facts bearing on the controversy; CPLR 3214 (b) permits court-authorized discovery despite service of a summary judgment motion. The provider also failed to show the notice was palpably improper. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling the deposition and denying the provider's cross motion for a protective order and sanctions.
Appellate Term, Second Department
Jul 27, 2015
2015 NY Slip Op 51130(U)
Provider prevailed
The insurer's summary judgment motion was untimely because it missed the 60-day deadline after filing of the notice of trial without explanation. Part 41 of the Civil Court required the motion to be made within that period. The insurer offered no explanation for its delay in the Civil Court, which denied its motion to dismiss the provider's action for assigned no-fault benefits. Applying CPLR 3212 (a), Miceli v State Farm Mut. Auto. Ins. Co., and Brill v City of New York, the Appellate Term, Second Department, affirmed the denial. It declined to consider arguments or factual assertions raised for the first time on appeal.
Appellate Term, Second Department
Jul 27, 2015
2015 NY Slip Op 51126(U)
Provider prevailed
The insurer failed to establish nonreceipt of requested verification, despite proving timely mailing of initial and follow-up requests. The Civil Court had dismissed the provider's action for assigned no-fault benefits as premature. A claim need not be paid or denied until all demanded verification is supplied, and an action is premature when the provider fails to respond to a verification request. Nevertheless, proof of timely requests did not establish that the insurer had not received the verification. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for, in effect, summary judgment dismissing the complaint; it did not reach the insurer's remaining contention.
Appellate Term, Second Department
Jul 27, 2015
2015 NY Slip Op 51135(U)
Provider prevailed
An insurer's motion to compel a provider's deposition was denied without an investigator's supporting affidavit, within the trial court's discretion. In an action for assigned no-fault benefits, the insurer served discovery demands and a deposition notice, but the provider failed to appear. The Civil Court denied the insurer's motion to compel because no investigator's affidavit supported it. Trial courts have broad discretion to oversee discovery, and their determinations are not disturbed absent an improvident exercise of that discretion. Upon reviewing the record, the Appellate Term, Second Department, found no such exercise and affirmed the order, insofar as appealed from, leaving the denial of the insurer's motion in place.
Appellate Term, Second Department
Jul 14, 2015
2015 NY Slip Op 51077(U)
Insurer prevailed
The provider's no-fault action was barred by res judicata under an unvacated default declaratory judgment denying benefits from the accident. The insurer's declaratory action in Supreme Court, Nassau County, alleged a fraudulent insurance scheme involving three accidents. The resulting judgment declared that the provider and other providers were not entitled to benefits from those accidents. Following EBM Med. Health Care, P.C. v Republic W. Ins., the declaration remained conclusive despite entry on default, and recovery would impair rights established by it. After consolidation of three benefits actions for disposition of the insurer's motion, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting summary judgment dismissing this provider's complaint.
Appellate Term, Second Department
Jul 14, 2015
2015 NY Slip Op 51084(U)
Split result
The providers' notice of trial was vacated because discovery remained incomplete after they amended their complaint. Earlier discovery responses did not excuse ignoring renewed demands, even identical ones, directed to an amended complaint containing new facts. The insurer's timely motion under 22 NYCRR 212.17 (c) challenged a certificate of readiness erroneously stating that discovery was complete. The Appellate Term, Second Department, modified the order to grant vacatur of the notice of trial. It affirmed denial of the branch seeking to compel discovery because subsequent responses rendered it moot. The adequacy of those responses was not before the court because the motion did not object to specific items.
Appellate Term, Second Department
Jul 14, 2015
2015 NY Slip Op 51078(U)
Insurer prevailed
An unvacated default declaratory judgment barring a provider's recovery of no-fault benefits precludes its action for those benefits under res judicata. The insurer obtained a default judgment in Supreme Court, New York County, declaring that the provider and others were not entitled to benefits arising from the accident. A judgment for the provider in the benefits action would impair rights established by that declaration. Following EBM Med. Health Care, P.C. v Republic W. Ins., the default declaration was a conclusive final determination because it had not been vacated. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 13, 2015
2015 NY Slip Op 51066(U)
Provider prevailed
The provider's treating-doctor affidavit rebutted the peer review and raised a triable issue of medical necessity. The defendant's sworn peer review supplied a factual basis and medical rationale for finding the services unnecessary. In opposition, however, an affidavit from one of the assignor's treating doctors meaningfully addressed the report and sufficiently rebutted its conclusions. The Appellate Term, Second Department, reversed the order granting the defendant summary judgment dismissing the assigned no-fault benefits action and denied its motion.
Appellate Term, Second Department
Jul 13, 2015
2015 NY Slip Op 51068(U)
Provider prevailed
The providers' medical affidavits raised a triable issue of medical necessity despite the insurer's sufficient IME reports. The providers appealed dismissal of their first through eighteenth and twenty-first through thirty-sixth causes of action for assigned no-fault benefits. The insurer submitted reports from a chiropractor and an orthopedist that supplied factual bases and medical rationales for finding the respective services unnecessary. The providers' opposing medical affidavits nevertheless created a factual dispute requiring denial of summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branches of the insurer's motion seeking dismissal of those causes of action.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51052(U)
Insurer prevailed
A default declaration of no-fault nonliability has res judicata effect even before service with notice of entry. While the provider's benefits action was pending, the defendant obtained a Supreme Court default judgment declaring no obligation to pay the provider's claims arising from the accident. A benefits judgment would impair rights established by that declaration. Its binding and conclusive effect made the absence of service with notice of entry immaterial to the cross motion. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion and granted the branch of the defendant's cross motion seeking dismissal.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 25236
Insurer prevailed
No-fault benefits are unavailable when the vehicle is not a proximate cause of the injury and another instrumentality produces it. The assignor testified at a General Municipal Law § 50-h hearing that, while alighting from a bus, the assignor stepped into a street hole and fell. Applying Insurance Law § 5103 (a) (1), Cividanes v City of New York and Walton v Lumbermens Mut. Cas. Co., the Appellate Term, Second Department, found that the injuries resulted from stepping into the hole rather than the use or operation of the bus. The provider's attorney affirmation raised no triable issue. It reversed the order and granted the bus owner summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51060(U)
Insurer prevailed
The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity. In an action for assigned no-fault benefits, the insurer established timely denials through a third-party claims adjuster's description of procedures for generating and mailing denial forms. Its affirmed IME report supplied a factual basis and medical rationale for finding the services unnecessary, establishing prima facie entitlement to summary judgment. The provider's opposing medical affirmation did not raise a triable issue because it failed to engage with those conclusions. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51050(U)
Insurer prevailed
An unvacated default declaratory judgment barring coverage precludes a provider's benefits action under res judicata. While the no-fault action was pending, the defendant obtained a Supreme Court declaratory judgment against the provider and others, declaring no coverage for expenses arising from the collision. The declaratory action alleged failure to appear for duly scheduled EUOs. A judgment for the provider would impair rights established by the declaration, which remained a conclusive final determination despite being entered on default. The Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (5) and found the provider's remaining contention unpreserved.
Appellate Term, First Department
Jul 7, 2015
2015 NY Slip Op 51003(U)
Provider prevailed
MVAIC failed to prove that the assignor had not made reasonable efforts to identify the taxi's driver or owner. The assignor was a passenger in the taxi when the accident occurred. Assuming without deciding that Insurance Law § 5218 (b) (5) applied, the court found MVAIC's proof essentially silent on reasonable efforts. A terse assignor affidavit and a largely illegible ambulance report did not carry MVAIC's burden; pointing to gaps in the provider's proof was insufficient. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion, regardless of the sufficiency of the provider's opposition papers.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51032(U)
Split result
The insurer failed to prove IME nonappearances because its healthcare professionals' sworn statements did not demonstrate personal knowledge. The insurer relied on statements from the acupuncturist and doctor scheduled to examine the assignor, but neither established personal knowledge of nonappearance. The provider's cross motion also failed: it established neither a denial outside the required 30-day period nor a timely denial that was conclusory, vague, or meritless as a matter of law under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's motion dismissing the complaint and otherwise affirmed, leaving both summary judgment applications denied.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51035(U)
Provider prevailed
A court may permit discovery during a pending summary judgment motion when a party demonstrates a legitimate need for it. The insurer moved for summary judgment based on a peer review finding lack of medical necessity. Under CPLR 3214 (b), service automatically stayed disclosure until the Civil Court directed verified discovery responses within 45 days or preclusion of the evidence. The provider demonstrated a legitimate need for discovery to oppose the motion under CPLR 3212 (f), consistent with CPLR 3101 (a). The insurer did not deny receiving or failing to answer the demands. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the provider's motion to compel under CPLR 3124.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51048(U)
Insurer prevailed
An unvacated default declaratory order denying no-fault coverage bars a provider's benefits action under res judicata. After the provider commenced its benefits action, the insurer obtained an order in Supreme Court, Onondaga County, declaring that it owed no benefits to the provider and assignor arising from the accident. The insurer then moved to dismiss under CPLR 3211 (a) (5). Following Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., recovery would impair rights established by the declaratory order, which remained a conclusive final determination despite entry on default. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the complaint.
Appellate Term, Second Department
Jul 7, 2015
2015 NY Slip Op 51049(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearances was granted, and disqualification of its law firm was denied. The provider sought disqualification under rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0). The Appellate Term, Second Department, affirmed dismissal and the implicit denial of disqualification for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.
Trial court, Second Department
Jul 24, 2015
2015 NY Slip Op 51256(U)
Insurer prevailed
A no-fault arbitrator may subpoena a provider's claimed owner on the arbitrator's own initiative to resolve disputed ownership. The Supreme Court, Kings County, denied the provider's request to vacate or remand under CPLR 7511 and confirmed the master arbitrator's award under CPLR 7510. The arbitrator dismissed the claim without prejudice because the claimed owner was ill, allowing later examination concerning the insurer's fraudulent-incorporation defense. Under 11 NYCRR 65-4.5 (o) (2), the subpoena concerned an issue integral to the dispute. The dismissal permitted a later claim and violated no public policy, was not irrational, and exceeded no specified power. Collateral estoppel did not apply because the provider supplied no reasoning from prior remand decisions showing that the ownership issue had been decided.
Trial court, Second Department
Jul 17, 2015
2015 NY Slip Op 51094(U)
Provider prevailed
The insurer proved a false insurance application statement but failed to prove its materiality under Insurance Law § 3105. At trial, the insurer established that the assignor falsely claimed active Navy membership. Under Insurance Law § 3105 (b) (1), materiality required proof that the insurer would not have issued the policy had it known the truth. The litigation manager lacked underwriting knowledge, and the insurer supplied neither testimony nor underwriting documentation establishing that fact. The Civil Court, Kings County, rejected the material-misrepresentation and fraudulent-procurement defense and granted judgment for the provider with statutory interest and attorney fees.
Trial court, Second Department
Jul 1, 2015
2015 NY Slip Op 25287
Provider prevailed
A provider may use the insurer's NF-10 denial as an admission of claim receipt without a business-record foundation. The insurer sought dismissal at trial on the ground that the provider had failed to prove mailing of its no-fault claims. The Civil Court, Kings County, found that the denial admitted receipt, that the provider established its prima facie case, and that Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. did not foreclose this method of proof. The denial was offered as the insurer's admission rather than the provider's business record under CPLR 4518 (a). Because the insurer presented no witnesses to establish its defense, judgment was awarded to the provider.
