Appellate Division, Second Department
Nov 30, 2016
2016 NY Slip Op 08078
A loss-transfer arbitration award reducing reimbursement by half lacked evidentiary support for the finding of improper claim payments. The petitioning insurer sought reimbursement under Insurance Law § 5105 after paying no-fault benefits for a third party injured in a collision with an insured livery vehicle. Although the arbitrator found the livery vehicle entirely at fault, the award allowed only half the payments based on improper claims management. The petitioning insurer submitted payment evidence, while the livery vehicle's insurer offered no evidence of improper payments. Applying CPLR 7511 and the additional evidentiary scrutiny for compulsory arbitration, the Appellate Division, Second Department, affirmed vacatur and denial of the cross petition to confirm because the reduction was unsupported and arbitrary and capricious.
Appellate Term, Second Department
Nov 25, 2016
2016 NY Slip Op 26395
Insurer prevailed
A master arbitrator may correct an error of substantive law without independently weighing evidence or determining credibility. An arbitrator awarded benefits after finding IME notices defective because they promised reimbursement for "proven" lost earnings rather than tracking 11 NYCRR 65-3.5 (e). The master arbitrator vacated that award, finding the wording did not invalidate notice. Under CPLR 7511 (b) (1) (iii) and 11 NYCRR 65-4.10 (a) (4), the Appellate Term, Second Department, found that this was permissible legal review, not independent factual analysis, and that the determination was not irrational. It reversed the order, insofar as appealed from, denied the provider's petition to vacate, and granted the insurer's cross petition to confirm the master arbitrator's award.
Appellate Term, Second Department
Nov 25, 2016
2016 NY Slip Op 51705(U)
Neither party was entitled to summary judgment because a factual issue remained whether the insurer timely paid the provider's claim. Although the insurer acknowledged receipt and produced a canceled check, it failed to establish mailing within the 30-day payment-or-denial period. The provider's employee affidavit established prima facie entitlement under Insurance Law § 5106 (a). Its procedural objections to counsel substitution under CPLR 321 (b) (1), cross-motion timing, and omitted pleadings failed for lack of asserted or demonstrated prejudice. The pleadings were otherwise in the record, and CPLR 2001 applied to the omission. The Appellate Term, Second Department, modified to deny the insurer's cross motion while leaving denial of the provider's motion intact.
Appellate Term, Second Department
Nov 25, 2016
2016 NY Slip Op 51706(U)
Provider prevailed
The insurer's default-vacatur motion was untimely, and it offered no excuse for its delay after receiving the judgment with notice of entry. The provider's affidavit of mailing created a presumption of receipt in December 2009, which the insurer did not address in reply. Its September 2013 motion therefore exceeded the one-year period under CPLR 5015 (a) (1). Although courts retain inherent authority to vacate judgments for sufficient reason in the interests of substantial justice, relief was unwarranted. An employee's alleged mishandling of the summons and complaint did not explain the later delay. The Appellate Term, Second Department, reversed and denied the insurer's motion to vacate the default judgment and marshal's notice.
Appellate Term, Second Department
Nov 21, 2016
2016 NY Slip Op 51701(U)
Insurer prevailed
The insurer's record-search affidavit established that no policy covered the vehicle on the accident date, and the provider raised no triable issue. In opposing the provider's motion and supporting its own cross motion, the insurer submitted its senior field support representative's affidavit describing the search and its results. That evidence showed prima facie that the claim did not arise from a covered incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 21, 2016
2016 NY Slip Op 51702(U)
Insurer prevailed
The insurer established valid retroactive rescission of the Florida policy based on misrepresentations about the insured's residence and garaging. The assignor was a passenger in the insured vehicle during a New York accident. Applying Florida law, the insurer rescinded under Florida Statutes Annotated, title 37, § 627.409 after discovering that the insured neither resided nor garaged the vehicle at the application address. Its litigation specialist's affidavit and documents established notice to the insured and return or tender of all premiums within a reasonable time after discovery. The provider raised no triable issue concerning rescission's validity. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 17, 2016
2016 NY Slip Op 26387
Split result
The insurer failed to establish effective policy cancellation because its submissions did not conclusively prove timely filing with DMV. Although the insurer demonstrated mailing of a termination notice to the policyholder under Vehicle and Traffic Law § 313 (1), its affidavit and purported DMV notification record did not establish proper filing within 30 days of termination under Vehicle and Traffic Law § 313 (2) (a). The assignor was neither the named insured nor a household member, implicating subdivision (3). The provider likewise failed to establish untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed denial of the provider's motion.
Appellate Term, Second Department
Nov 17, 2016
2016 NY Slip Op 51679(U)
Provider prevailed
The insurer's renewal motion failed on the merits because it did not substantiate nonreceipt of one claim or timely denials of the others. The Appellate Term, Second Department, affirmed denial of renewal on a different ground, finding that the motion satisfied CPLR 2221 (e). For the thirty-first cause of action, the claim representative's assertion that the claim was never mailed was conclusory and unsupported. For the remaining claims, EUO scheduling letters were sent more than 30 days after receipt. Delay letters requesting no verification did not toll the payment-or-denial period. The insurer therefore failed to establish entitlement to summary judgment. Whether it properly proved the provider's EUO nonappearance was not reached.
Appellate Term, Second Department
Nov 17, 2016
2016 NY Slip Op 51684(U)
The insurer's cross motion for summary judgment dismissing the provider's claims was denied on appeal; the provider's motion remained denied. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2014-2501 Q C, without identifying the underlying defense or supplying independent reasoning.
Appellate Term, Second Department
Nov 17, 2016
2016 NY Slip Op 51685(U)
The insurer's cross motion for summary judgment dismissing the provider's claims was denied on appeal; the provider's motion remained denied. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2014-2501 Q C, without identifying the underlying defense or supplying independent reasoning.
Appellate Term, Second Department
Nov 15, 2016
2016 NY Slip Op 51677(U)
Neither party established summary judgment entitlement: the provider's prima facie proof failed, and the insurer's peer reviews were insufficient. For the one claim on which the provider obtained judgment, its papers did not establish an untimely denial or a denial that was conclusory, vague, or meritless as a matter of law. The insurer's two peer reviews lacked a sufficient factual basis or medical rationale showing that the supplies underlying any of the three claims were unnecessary. The Appellate Term, Second Department, reversed the provider's judgment, vacated the corresponding summary judgment grant, and denied that branch of its motion. The order denying the insurer's motion was affirmed insofar as reviewed on direct appeal.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51622(U)
Provider prevailed
MVAIC's verification request more than 100 days after receipt of the last claim did not toll its time to deny or render the action premature. MVAIC neither denied within 30 days nor timely requested verification under 11 NYCRR 65-3.5 (b), 65-3.6 (b) and 65-3.8 (a) (1). Qualified- and covered-person determinations did not postpone the deadline. Although the provider's affidavit failed to establish prima facie entitlement, the record established untimely denials and no defense exempt from preclusion. The Appellate Term, Second Department, reversed, granted the provider summary judgment, denied MVAIC's cross motion, and remitted for statutory interest and attorney fees under Insurance Law § 5106.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51613(U)
Split result
The insurer failed to prove mailing of the IME scheduling letters and therefore failed to establish that the assignor's IMEs were properly scheduled. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the assigned no-fault claim on an IME nonappearance defense. The provider's summary judgment motion also remained denied. Its supporting papers failed to establish either that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. The record thus supported summary judgment for neither side.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51615(U)
Split result
The insurer failed to establish that the assignor's misrepresentation of residence in procuring the policy was material as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claim, applying Interboro Ins. Co. v Fatmir. The denial of the provider's summary judgment motion remained in place. The provider's supporting affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. Neither party established entitlement to summary judgment.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51623(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the insurer established timely mailing, rejecting the provider's sole contention to the contrary.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51625(U)
Split result
The insurer was entitled to depose the treating doctor, but factual issues on medical necessity defeated summary judgment on both claims. Civil Court had limited the remaining trial issue to medical necessity under CPLR 3212 (g). The treating doctor's deposition was material and necessary to the insurer's defense under CPLR 3101 (a), entitling it to discovery. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the branch compelling that deposition, while affirming denial of the insurer's summary judgment request.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51626(U)
Insurer prevailed
Providers who know the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The providers and their assignors knew the identity of the owner of the vehicle in which the assignors had been passengers when the accident occurred. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the providers had not demonstrated exhaustion of their remedies against the owner. It affirmed the order denying the providers' motion for summary judgment and granting MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51609(U)
Insurer prevailed
The provider failed at trial to demonstrate exhaustion of remedies against the known vehicle owner before pursuing MVAIC. The parties stipulated that exhaustion was the sole trial issue, and the only witness was an MVAIC employee who testified that the provider had not established it. Because the assignor knew the identity of the owner of the vehicle occupied at the time of the accident, the provider had to exhaust remedies against that owner under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the provider's judgment after the nonjury trial and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51602(U)
Split result
The insurer failed to prove timely mailing of its denial and thus failed to establish that its provider EUO nonappearance defense was not precluded. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the assigned no-fault claim. The provider's summary judgment motion remained denied because its affidavit failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. The insurer's deficient mailing proof therefore defeated its cross motion without establishing the provider's entitlement to judgment.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51603(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal, Omphil Care, Inc. v Allstate Ins. Co., decided the same day, No. 2013-2290 Q C. The provider's summary judgment motion remained denied.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51604(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2013-2290 Q C. The denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51605(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2013-2290 Q C. The denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51606(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2013-2290 Q C. The denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51607(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2013-2290 Q C. The denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51608(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2013-2716 Q C, and supplied no independent analysis.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51610(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials and the assignor's nonappearance; the medical-necessity challenge was unpreserved. The provider appealed summary judgment dismissing its assigned no-fault claims for EUO nonappearance and, as to the sixth cause of action, lack of medical necessity. The insurer's proof raised a presumption of timely mailing and demonstrated the missed EUOs. The provider's arguments concerning medical necessity were raised for the first time on appeal and were not properly before the appellate court; its other remaining contentions were academic. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51611(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2013-2716 Q C, and supplied no independent analysis.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51612(U)
Insurer prevailed
The insurer's claim specialist established timely mailing of verification requests and follow-up requests and the provider's failure to respond. The provider appealed an order granting the insurer summary judgment dismissing an action for assigned no-fault benefits. The Appellate Term, Second Department, rejected both challenges to the claim specialist's affidavit. Following St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., it found the affidavit sufficient to prove timely mailing; it also found sufficient proof that the requests remained unanswered. The order dismissing the complaint was affirmed.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51614(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal, Art of Healing Medicine, P.C. v Utica Mut. Ins. Co., decided the same day, No. 2013-2716 Q C, without giving independent reasoning.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51616(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2013-2716 Q C, and supplied no independent analysis.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51617(U)
Split result
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2013-2290 Q C. The denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51618(U)
Insurer prevailed
The insurer's summary judgment on the first through fourth and seventh through ninth causes of action for EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2013-2716 Q C, without independently analyzing the assignor's failure to attend duly scheduled EUOs.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51619(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for the assignor's failure to attend duly scheduled EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2013-2716 Q C, and supplied no independent analysis.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51621(U)
Split result
The insurer failed to prove IME nonappearance through a person with personal knowledge, while the provider failed to establish its prima facie case. In this action for assigned no-fault benefits, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The Appellate Term, Second Department, modified the order to deny the cross motion. The insurer lacked personal-knowledge proof of nonappearance. The provider's affidavit did not establish that the claims were not timely denied or that timely denials were conclusory, vague or without merit as a matter of law. Both motions were therefore denied.
Appellate Term, Second Department
Nov 1, 2016
2016 NY Slip Op 51624(U)
Insurer prevailed
The provider's challenge to the IME scheduling letters' inclusion of an apartment number was unpreserved because it was first raised on appeal. The Appellate Term, Second Department, declined to consider the contention that the letters were improperly addressed. The provider therefore demonstrated no basis to disturb the order denying its summary judgment motion and granting the insurer's cross motion dismissing the complaint. The order was affirmed.
Trial court, Second Department
Nov 30, 2016
2016 NY Slip Op 26411
Split result
The insurer's recorded-statement requests and nonspecific delay letters did not toll the 30-day period to pay or deny claims. Applying 11 NYCRR 65-3.5 (b), the Civil Court, Kings County, distinguished the recorded statement from an EUO and found the purported verification requests lacked specific information demands and identified sources. EUO requests sent more than 30 days after receipt could not toll the deadline, making the denials of claims one and three untimely and precluding the EUO defense. For claim two, conflicting postal date stamps defeated proof of mailing under the provider's office procedures. The court denied the insurer's cross motion, granted the provider summary judgment on claims one and three, and directed trial on whether claim two was timely mailed.
