Appellate Division, First Department
Dec 29, 2016
2016 NY Slip Op 08964
Provider prevailed
A no-fault arbitrator has discretion to refuse late submissions under 11 NYCRR 65-4.2 (b) (3). The insurer sought to vacate a master arbitration award affirming an award of benefits to the provider, which cross-moved to confirm. The Appellate Division, First Department, affirmed the denial of vacatur and confirmation of the award. The insurer established no statutory ground under CPLR 7511 (b). The master arbitrator's decision had evidentiary support and a rational basis and was not arbitrary and capricious; the original arbitrator properly exercised discretion in rejecting the insurer's late submissions.
Appellate Division, First Department
Dec 29, 2016
2016 NY Slip Op 08967
A compulsory loss-transfer arbitration award is upheld if it comports with CPLR 7511 and is not arbitrary and capricious. The responding insurer paid personal injury protection benefits and sought reimbursement under Insurance Law § 5105. The record supported causation between the accident and the treatments paid for: the responding insurer explained that the accident worsened a passenger's preexisting disability and prolonged recovery, requiring more treatment. No fraud was alleged, and the petitioning insurer could have requested further proof if it questioned the amount paid. Finding no basis for vacatur under CPLR 7511 (b), the Appellate Division, First Department, affirmed denial of the petition to vacate the award in the responding insurer's favor.
Appellate Term, First Department
Dec 29, 2016
2016 NY Slip Op 51824(U)
Insurer prevailed
The providers' medical-necessity cross motion failed because conflicting expert opinions raised a triable issue and collateral estoppel did not apply. The Appellate Term, First Department, affirmed denial of summary judgment on medical necessity in an action for no-fault benefits for manipulation under anesthesia. Medical necessity had not been fully litigated or decided in the prior first-party no-fault action, so that action did not bar the insurer's defense. On the merits, the parties' conflicting medical expert opinions required resolution of medical necessity at trial.
Appellate Term, Second Department
Dec 16, 2016
2016 NY Slip Op 51815(U)
Provider prevailed
The insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible. The sole trial issue was the necessity of cervical and thoracic MRIs, and the insurer's orthopedic surgeon was the only witness. The Appellate Term, Second Department, affirmed judgment for the provider. It rejected Civil Court's conclusion that the witness was unqualified: the difference between the witness's specialty and the prescribing doctor's specialty affected weight, not competency to testify as an expert. Nevertheless, there was no basis to disturb the independent finding that the testimony was not credible.
Appellate Term, Second Department
Dec 16, 2016
2016 NY Slip Op 26439
Provider prevailed
Georgia law bars retroactive rescission of an automobile policy issued to a natural person for a private passenger vehicle. The insurer sought summary judgment dismissing the provider's assigned no-fault claims based on alleged misrepresentations concerning residence and garaging. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied it. The insurer failed to establish a conflict between Georgia and New York law, since both prohibit retroactive rescission of such policies. Under Vehicle and Traffic Law § 313 and Georgia Code Annotated §§ 33-24-44 and 33-24-45, cancellation operates prospectively; Georgia Code Annotated § 33-24-7 did not authorize the asserted rescission. The insurer therefore failed to establish lack of coverage.
Appellate Term, Second Department
Dec 15, 2016
2016 NY Slip Op 51813(U)
Insurer prevailed
An unvacated default declaratory judgment order can bar a provider's no-fault action under res judicata without a notice of entry. Supreme Court had declared that the assignor was not an eligible injured person and that the insurer had no obligation to pay claims under the specified claim number, including the provider's claims. Civil Court declined to consider that order because the insurer omitted a notice of entry. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint. The declaratory order was binding and conclusive notwithstanding the default, and allowing the collection action could impair rights already established by that order.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51786(U)
Insurer prevailed
The provider's claims were barred by res judicata because a prior declaration resolved coverage for the same accident between the same parties. Supreme Court had declared that the insurer need not pay any no-fault claims under the policy arising from that accident. The later collection action involved the same insurer, provider, and injured claimant and arose from the same transaction. A contrary determination would impair rights established by the declaratory order. 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. The provider's contention concerning its prima facie showing was not reached.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51787(U)
Provider prevailed
The insurer failed to establish timely denials and was precluded from asserting the provider's EUO nonappearance defense. For one claim, the EUO request exceeded the 15-business-day deadline in 11 NYCRR 65-3.5 (b), reducing the time to pay or deny under 11 NYCRR 65-3.8 (l). The insurer then failed to deny timely after the second nonappearance under 11 NYCRR 65-3.8 (a) (1). For the remaining claims, the first scheduling letter was mailed more than 30 calendar days after receipt, rendering it a nullity that did not toll the denial deadline. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion and the grant of the provider's cross motion.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 26424
Provider prevailed
The provider was not bound by a coverage declaration against its assignor because the assignment preceded the proceeding and the provider was absent. The provider was neither named nor served and lacked privity with the assignor when the insurer commenced the proceeding. Without a full and fair opportunity to defend its interests, it was not subject to dismissal based on the default declaration. The insurer's alternative EUO nonappearance defense also failed: it did not establish timely, proper mailing of scheduling letters, and the letters omitted reimbursement advice for lost earnings and reasonable transportation costs required by 11 NYCRR 65-3.5 (e). The Appellate Term, Second Department, reversed and denied the insurer's summary judgment motion.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51774(U)
Insurer prevailed
The defendant established that the provider submitted its claim more than five months after furnishing the supplies. In this action for assigned no-fault benefits, the defendant sought summary judgment on its timely denial for late claim submission under 11 NYCRR 65-2.4 (c). Its affidavit established receipt more than five months after the supplies were provided. The provider's employee affidavit lacked probative value because it claimed personal knowledge that the form was mailed before the date appearing on the form. It therefore did not establish mailing within 45 days. The Appellate Term, Second Department, affirmed the order granting the defendant summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51793(U)
Provider prevailed
Statutory no-fault attorney fees are not discretionary or dependent on the actual value of counsel's services. After an insurer defaulted, the providers received benefits and interest but were denied fees for lack of a detailed services affidavit. Under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (former (e)), the applicable fee was 20 percent of benefits plus interest, capped at $850; the recovery entitled the providers to that maximum. The Appellate Term, Second Department, reversed and remitted for a new judgment with calculated interest and the fee. Under CPLR 5019 (a), the judgment must name only the insurer because the action against the assignor had been discontinued. The separate appeal from the decision was dismissed under UCCA 1702.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51780(U)
Split result
Under Pennsylvania law, rescission for an insured's material misrepresentation does not extend to innocent third parties injured without fault. The insurer showed that its insured made misrepresentations in the application and that it rescinded the policy from inception. Under Erie Ins. Exch. v Lake, however, it failed to establish conclusively that the provider's assignor, a passenger, was anything other than an innocent third party. The provider also failed to show an untimely denial or a timely denial that was conclusory, vague or legally meritless under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment and affirmed the denial of the provider's motion.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51777(U)
Provider prevailed
The insurer's motion for summary judgment based on cancellation of the Pennsylvania policy was denied on appeal. The provider challenged the insurer's proof that the cancellation notice had been properly mailed. The Appellate Term, Second Department, reversed the order granting dismissal for the reasons stated in New Way Med. Supply Corp. v Infinity Group, without giving independent reasoning.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51773(U)
Provider prevailed
The insurer's summary judgment motion based on a Supreme Court order and alleged assignor EUO nonappearances was denied on appeal. The Appellate Term, Second Department, reversed the order granting dismissal of the provider's assigned no-fault claims for the reasons stated in the companion appeal decided the same day, No. 2014-1219 K C.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51788(U)
Split result
The insurer established grounds to vacate its oral-argument default but failed to show dismissal under a conditional order. Counsel's explanation that a traffic jam caused by an accident delayed arrival at the calendar call supplied a reasonable excuse under CPLR 5015 (a) (1). The insurer also showed a potentially meritorious defense to the provider's summary judgment motion and potential merit in its own cross motion. However, it gave no indication that the conditional order had been served on the provider, so it failed to establish that the order became binding under CPLR 2220. The Appellate Term, Second Department, modified to grant vacatur and remitted for argument and determination of both summary judgment motions, while declining to find the complaint dismissed.
Appellate Term, Second Department
Dec 7, 2016
2016 NY Slip Op 51792(U)
Provider prevailed
The insurer's petition to vacate a master arbitration award upholding the provider's reimbursement claim was denied. The Appellate Term, Second Department, affirmed because the award had a rational basis and was not arbitrary, capricious, or contrary to settled law, without describing the underlying dispute. The award was confirmed under CPLR 7511 (e), albeit on a different ground from the arbitrator's.
Trial court, Second Department
Dec 8, 2016
2016 NY Slip Op 26420
Insurer prevailed
The insurer obtained a 90-day stay for a Workers' Compensation Board determination despite an inadmissible police accident report. The provider sought summary judgment on unpaid no-fault bills, while the insurer requested a stay to determine the assignor's employment status. The signed report lacked certification under CPLR 4518 (c) and sworn authentication, although its taxi-plate and passenger notations reflected the officer's personal observations. The provider did not dispute the taxi-plate observation, leaving factual questions about employment. Under Workers' Compensation Law § 2 (3) and (4), the relevant definitions include specified taxicab lessors and drivers. The Civil Court, Kings County, granted the stay pending a prompt application to the Board, which had primary jurisdiction over employment status and benefit entitlement.
Trial court, Second Department
Dec 8, 2016
2016 NY Slip Op 26413
Insurer prevailed
An insurer has 15 business days to request a provider's EUO when new information from the assignor's EUO warrants it. The assignor's testimony raised billing, coding, and corporate-relationship questions while other verification remained outstanding. The insurer requested the provider's EUO 15 business days later; the provider missed both scheduled EUOs, and the insurer denied the claims two days after the second nonappearance. Applying 11 NYCRR 65-3.5 (b), the Civil Court, Kings County, treated the request as new verification rather than a follow-up. Under 11 NYCRR 65-3.8 (l), lateness would reduce the denial period, but none occurred here. The court found the notices properly mailed and the denial timely, granted the insurer's summary judgment motion, and denied the provider's cross motion.
