Appellate Division, Second Department
Jan 20, 2016
2016 NY Slip Op 00325
Provider prevailed
⚠ Reversed by Contact Chiropractic, P.C. v New York City Tr. Auth. (2018 NY Slip Op 03093)
An injured claimant's or assignee's action for first-party no-fault benefits against a self-insurer has a six-year limitations period. The Appellate Division, Second Department, held that the claim is essentially contractual rather than statutory in nature. It affirmed the Appellate Term's order sustaining, upon renewal, the Civil Court's denial of the self-insurer's summary judgment request to dismiss the provider's complaint as time-barred. Applying the six-year period, the court concluded that the statute of limitations had not expired when the provider commenced the action.
Appellate Term, Second Department
Jan 20, 2016
2016 NY Slip Op 50095(U)
Insurer prevailed
A default declaratory judgment precludes a no-fault recovery that would impair the rights established by that judgment. The insurer moved under CPLR 3211 (a) (5) after issue was joined, relying on a Supreme Court declaration that it owed no coverage for the accident and that the provider and assignor had no right to reimbursement. Although CPLR 3211 (c) ordinarily requires notice before conversion to summary judgment, no notice was needed because the motion presented only a legal question. The default declaration was a conclusive final determination, barring the action by res judicata. The Appellate Term, Second Department, affirmed summary judgment for the insurer and declined to consider the provider's remaining arguments, raised for the first time on appeal.
Appellate Term, Second Department
Jan 20, 2016
2016 NY Slip Op 50096(U)
Insurer prevailed
An unpleaded res judicata defense may support summary judgment absent surprise or prejudice to the opposing party. The insurer supplied a default declaratory judgment with its reply after alerting the provider in its cross motion that the judgment was imminent. Although CPLR 3018 (b) requires affirmative pleading, the defense had not existed when the insurer answered, the provider chose not to address it, and the record showed no prejudice. The Appellate Term, Second Department, also took judicial notice of the undisputed court records and found the action barred by res judicata for the reasons stated in the companion appeal decided the same day, No. 2013-2314 Q C. It affirmed the order granting the insurer's cross motion dismissing the complaint.
Appellate Term, First Department
Jan 13, 2016
2016 NY Slip Op 50023(U)
Insurer prevailed
An insurer may request IMEs before receiving a provider's claim forms under 11 NYCRR 65-1.1. The Appellate Term, First Department, reversed the order and granted the insurer summary judgment dismissing the provider's no-fault claim. The insurer established timely, proper mailing of IME notices and the assignor's repeated nonappearance through sworn affidavits of the scheduled examiner and an employee of the IME scheduler. The provider raised no triable issue concerning nonappearance, mailing, or the notices' reasonableness. The requests complied with regulatory procedures and time frames. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, nonappearance permitted retroactive denial to the date of loss, regardless of denial timeliness or different grounds initially asserted.
Appellate Term, First Department
Jan 13, 2016
2016 NY Slip Op 50025(U)
Provider prevailed
The insurer failed to submit admissible proof that its policy limited coverage after the insured's death to the deceased's legal representative. The insurer sought summary judgment dismissing the provider's assigned no-fault claim based on that asserted limitation. The Appellate Term, First Department, affirmed denial because the insurer had not established that the policy contained the provision. It expressly left open whether such a provision would legally preclude the claim, referencing Vehicle and Traffic Law § 388 (1) and (4) and Lumbermen's Mut. Cas. Co. v Brown, because the parties had not fully briefed that issue.
Appellate Term, Second Department
Jan 8, 2016
2016 NY Slip Op 50042(U)
Insurer prevailed
The insurer established valid retroactive rescission under Florida law, and the provider failed to raise a triable issue. The provider sought assigned no-fault benefits for a New York accident involving a vehicle insured under a Florida policy. The insurer's investigation disclosed misrepresentations concerning the insured's residence and the vehicle's garaging. Florida Statutes Annotated, title 37, § 627.409 permits retroactive cancellation for a material application misrepresentation. The insurer's affidavit and documents established notice of rescission and return or tender of all premiums within a reasonable time after discovery of the grounds. The Appellate Term, Second Department, modified the order by striking the provision limiting trial issues and granting the insurer's cross motion for summary judgment dismissing the complaint; denial of the provider's motion remained affirmed.
Appellate Term, Second Department
Jan 8, 2016
2016 NY Slip Op 50033(U)
Split result
The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient. For the first and third through sixth causes of action, the insurer established timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a), but a billing company's employee affidavit created a presumption that responses were mailed and received. The provider failed to establish overdue payment or timely denials that were legally insufficient for the first and third through seventh causes of action. Conflicting medical opinions also precluded judgment on the seventh cause of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the first and third through sixth causes, otherwise affirming.
