Appellate Term, Second Department
Aug 18, 2016
2016 NY Slip Op 26271
Provider prevailed
An option to arbitrate a no-fault dispute does not furnish a ground to dismiss a court action over that dispute. The provider sought unpaid benefits under a New Jersey automobile policy. New Jersey substantive law governed, but New York procedural law controlled. Neither New Jersey Statutes Annotated § 39:6A-5.1 (a), as implemented by New Jersey Administrative Code § 11:3-5.1 (a), nor the policy required mandatory dispute resolution. The insurer could exercise the arbitration option by moving to compel arbitration under CPLR 7503 (a), with a stay if granted, but had not done so. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 18, 2016
2016 NY Slip Op 51244(U)
Insurer prevailed
The provider failed to establish its prima facie case, while the insurer proved timely denial of the second claim. The provider's papers established neither nonpayment or denial within 30 days nor a timely denial that was legally insufficient under Insurance Law § 5106 (a). For the second cause, the insurer's investigator described mailing procedures and supplied a certified-mail receipt bearing the claim number. The provider submitted no opposing affidavit and did not challenge the CPLR 3212 (g) finding that the insurer was otherwise entitled to dismissal. The Appellate Term, Second Department, reversed the judgment, vacated the provider's summary judgment on the first cause and denied that motion branch, and reversed the order, insofar as appealed from, granting the insurer summary judgment dismissing the second cause.
Appellate Term, Second Department
Aug 18, 2016
2016 NY Slip Op 51245(U)
Insurer prevailed
The insurer established full fee schedule payment of one acupuncture claim and lack of medical necessity for the remaining claims. It proved timely mailing of the denial and full payment of the acupuncture claim under the workers' compensation fee schedule for chiropractors, making medical necessity moot for that claim. For the remainder, its sworn IME report supplied a factual basis and medical rationale for finding further treatment unnecessary. The providers' opposing affidavit failed meaningfully to address or rebut the report's conclusions, and they did not challenge the finding under CPLR 3212 (g) that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 18, 2016
2016 NY Slip Op 51246(U)
Insurer prevailed
EUO scheduling letters offered to show they were sent need not qualify as business records under CPLR 4518. The Civil Court, Queens County, denied the insurer's cross motion for summary judgment based on EUO nonappearance, although it found under CPLR 3212 (g) that the claim was timely denied. That finding was unchallenged. The Appellate Term, Second Department, determined that the insurer established timely mailing of the scheduling letters and that the letters were not offered for the truth of their contents. Sworn stenographic transcripts established the assignor's failure to appear. The court reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 18, 2016
2016 NY Slip Op 51247(U)
Insurer prevailed
The insurer established that its policy did not cover the vehicle driven by the assignor at the time of the accident. In the provider's action for assigned no-fault benefits, the insurer supported its summary judgment motion with affidavits from its claim litigation representative and products specialist. Those affidavits demonstrated prima facie that the alleged injuries did not arise from an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 10, 2016
2016 NY Slip Op 51240(U)
Insurer prevailed
The provider's years of inaction delayed the accrual of statutory interest until it moved to compel discovery. The provider commenced its no-fault action in April 2002 but took no meaningful action to prosecute it until August 30, 2013. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (c) and (d), interest ordinarily accumulates after an action is commenced, unless the applicant unreasonably delays the proceeding. The Appellate Term, Second Department, modified the judgment, insofar as appealed from, to compute interest from August 30, 2013, and remitted for recalculation and an amended judgment, granting the insurer relief on its interest challenge.
Trial court, Second Department
Aug 16, 2016
2016 NY Slip Op 51222(U)
Provider prevailed
An insurer seeking a default declaratory judgment must establish its right to the declaration with admissible proof. The Supreme Court, Kings County, denied the insurer's motion under CPLR 3215 and directed an inquest. The insurer sought declarations that its insured vehicle was not involved in the alleged accident and that it owed no benefits. Although service and provider defaults were established, the insurer failed to prove entitlement to relief under CPLR 3001 and CPLR 3215 (f). The insured's pre-action EUO was inadmissible under CPLR 3117 and constituted hearsay. The claims specialist's affidavit offered investigative conclusions based primarily on hearsay, leaving insufficient proof for a declaration.
Trial court, First Department
Aug 2, 2016
2016 NY Slip Op 51153(U)
Insurer prevailed
A bus passenger's injuries from an external building explosion did not arise from the bus's use or operation. The Supreme Court, New York County, converted the transit authority's proceeding into a plenary action for de novo adjudication under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (h). Article 75 procedures did not restrict substantive review, and the noncoverage defense remained available despite alleged delay. Service on the Secretary of State conferred jurisdiction; the unchallenged assignment made joinder of the assignor unnecessary. Because the undisputed explosion was unrelated to the bus's use and the bus did not proximately cause the injuries, the court declared no liability under Insurance Law § 5103 (a) (1), vacated the award, and denied the provider's attorney-fee cross motion.
