Appellate Division, First Department
Feb 23, 2017
2017 NY Slip Op 01461
Insurer prevailed
The master arbitrator's award irrationally ignored uncontroverted evidence that the assignor failed to appear for three scheduled EUOs. An arbitrator had awarded no-fault benefits to the provider, and the master arbitrator affirmed that award. The insurer's petition to vacate was unopposed but denied by Supreme Court. The Appellate Division, First Department, reversed the order and judgment, granted the insurer's petition, and vacated the award because the master arbitrator's disregard of the nonappearance evidence was arbitrary.
Appellate Division, Second Department
Feb 15, 2017
2017 NY Slip Op 01171
Insurer prevailed
The insurer established entitlement to a default judgment with proof of service, a viable cause of action, and the defendants' defaults. In its declaratory judgment action, the insurer submitted affidavits of service, an agent-verified complaint, an affidavit of merit, documentary evidence, and proof of failure to answer. Those submissions satisfied CPLR 3215 (f). The Appellate Division, Second Department, reversed denial of the unopposed motion and granted leave to enter judgment against the defaulting claimants and providers. The declaration treated the collision as an excluded act and excluded all resulting claims, relieving the insurer of the specified no-fault reimbursement, defense and indemnification, and uninsured or underinsured motorist coverage obligations.
Appellate Division, First Department
Feb 7, 2017
2017 NY Slip Op 00916
Provider prevailed
The insurer failed to establish whether its EUO notices were subject to regulatory deadlines or complied with applicable deadlines. The Appellate Division, First Department, reversed the order and judgment, insofar as appealed from, vacated the judgment, and denied the insurer's summary judgment motion for a declaration of no obligation to pay the providers. Although nonappearance at a properly noticed EUO breaches a coverage condition under 11 NYCRR 65-1.1, the insurer supplied neither completed verification forms nor evidence of their receipt dates, and did not assert that none were received. It therefore failed to show that 11 NYCRR 65-3.5 (b) and 65-3.6 (b) were inapplicable or satisfied. The providers' remaining contentions were not reached.
Appellate Term, Second Department
Feb 27, 2017
2017 NY Slip Op 50288(U)
Insurer prevailed
The insurer's attorney established through personal knowledge that the provider failed to appear for both duly scheduled EUOs. The provider's sole appellate argument challenged proof of nonappearance. The insurer submitted an affirmation from the attorney responsible for conducting the EUOs, establishing the provider's failure to attend either examination. Appearance at an EUO is a condition precedent to liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault complaint.
Appellate Term, First Department
Feb 22, 2017
2017 NY Slip Op 50234(U)
Provider prevailed
The defendant's failure to timely and properly mail a denial precluded its excessive-fee defense to the acupuncture claims. The provider established that its claims were overdue because they were neither paid nor denied within 30 days. The defendant waived objections to proof of assignment by failing to seek verification of the assignments. Its adjuster's conclusory assertions also failed to raise a factual issue as to whether certain services fell outside the scope of acupuncture treatment. The Appellate Term, First Department, modified the appealed portion of the order to grant the provider's cross motion for summary judgment on the overdue claims.
Appellate Term, Second Department
Feb 15, 2017
2017 NY Slip Op 27061
Insurer prevailed
An insurer need not send counsel a delay letter when verification is sought directly from the provider. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint for failure to supply requested verification. Although counsel had requested that all claim communications be sent to counsel, the insurer sent its initial and follow-up requests to the provider. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), those requests must go to the party from whom verification is sought. No delay letter to counsel was required where that party was the provider itself. Any confusion required further communication, rather than inaction.
Appellate Term, Second Department
Feb 15, 2017
2017 NY Slip Op 50268(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint for failure to provide requested verification was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2015-2123 S C.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 27040
Provider prevailed
The insurer failed to show that policy rescission under Pennsylvania law defeated the assignor's claim as an innocent third party. The provider sought assigned no-fault benefits, and the insurer obtained summary judgment based on rescission of the automobile policy from inception. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, Pennsylvania recognizes a common-law right of rescission but protects innocent third parties injured without fault. The insurer submitted no facts tending to show that the assignor was anything other than an innocent third party. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 50201(U)
Insurer prevailed
Untimely objections to discovery demands leave a provider obligated to respond unless the requested information is palpably improper or privileged. The provider failed to challenge the insurer's demands within the time prescribed by CPLR 3122 (a), and did not establish either exception. After an order directing responses within 60 days, the provider instead served a notice of trial and later submitted responses consisting primarily of objections. The insurer sought dismissal under CPLR 3126 or alternative relief. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, requiring responses to enumerated demands within another 60 days and providing for dismissal upon defense counsel's affirmation of noncompliance.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 50204(U)
Insurer prevailed
The insurer's corrected summary judgment motion was timely, and its policy proof established an applicable personal injury protection deductible. The original motion was timely served under CPLR 3212 (a), but filing was rejected because it listed the wrong court address. A later, otherwise identical motion corrected the address without making the application untimely. The policy's missing certificate of conformity could be disregarded under CPLR 2001 because the provider showed no prejudice. The affidavits and documents established the deductible, and the provider abandoned its fee-schedule challenge on appeal. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint based on payment at the applicable fee-schedule rates after applying the deductible.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 50210(U)
Insurer prevailed
The defendant established an excusable default and a meritorious defense based on a prior declaratory judgment barring the provider's claims. Counsel's illness and substitute counsel's accident-related delay excused the missed calendar call under CPLR 5015 (a) and CPLR 2005. The court took judicial notice of a Supreme Court order declaring no obligation to pay benefits arising from the accident and permanently staying the provider's no-fault claims, although the defendant had not annexed it to its motion. Default judgments can have res judicata effect. The Appellate Term, Second Department, reversed, vacated the default order, dismissed the provider's summary judgment motion, permanently stayed the action and remitted for determination of the remaining branches of the defendant's motion.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 50199(U)
Insurer prevailed
The insurer established timely mailing of the EUO scheduling letters and the provider's failure to appear for the scheduled EUOs. In this action for assigned no-fault benefits, Civil Court denied the insurer's summary judgment motion because it found a factual issue concerning the provider's appearance. The insurer's submissions established noncompliance with a condition precedent to coverage and timely denial on that ground, and the provider failed to raise a triable issue. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Feb 8, 2017
2017 NY Slip Op 50209(U)
Split result
The insurer's summary judgment cross motion was denied on appeal, while denial of the provider's summary judgment motion remained in place. The Appellate Term, Second Department, modified the order for the reasons stated in Island Life Chiropractic Pain Care, PLLC v Country Wide Ins. Co., and otherwise affirmed, leaving both sides without summary judgment.
Appellate Term, Second Department
Feb 3, 2017
2017 NY Slip Op 50163(U)
Insurer prevailed
The insurer's attorney affirmation based on personal knowledge established the provider's failure to attend scheduled EUOs. The insurer sought summary judgment dismissing the assigned no-fault claims, supporting its motion with a law-firm partner's affirmation attesting to the nonappearances. The provider cross-moved to disqualify the firm under rule 3.7 of the Rules of Professional Conduct, 22 NYCRR 1200.0, asserting that a firm member was a necessary witness. The Appellate Term, Second Department, rejected the provider's sole challenge to the nonappearance proof and upheld denial of disqualification for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. It affirmed the order granting the insurer summary judgment and denying the provider's cross motion.
Trial court, Second Department
Feb 23, 2017
2017 NY Slip Op 50260(U)
Insurer prevailed
The claimant's six-year delay in notifying the self-insurer of the alleged unidentified vehicle was unreasonable and prejudicial. On reargument under CPLR 2221, the claimant relied on no-fault notice and payments, but showed no timely notice of the specific facts supporting UM coverage. Under Insurance Law § 3420 (c) (2) (A), a delay exceeding two years places the burden of showing no prejudice on the insured. The court also declined reargument on physical contact: under Allstate Ins. Co. v Killakey, concrete from an alleged truck load was not an integral vehicle part, and the claimant failed to raise a factual issue about its origin. The Supreme Court, Nassau County, granted reargument on prejudice but adhered to the permanent stay of arbitration, favoring the self-insurer.
Trial court, Second Department
Feb 1, 2017
2017 NY Slip Op 27056
Insurer prevailed
A hospital's claim was premature because it failed to verify which charges covered necessary emergency health services. The Supreme Court, Nassau County, denied the hospital's summary judgment motion, granted the insurer's cross motion, and dismissed the complaint. Proof of the patient's intoxication entitled the insurer to request a breakdown of services through stabilization under Insurance Law § 5103 (b) (2), Insurance Department Circular Letter No. 4, and 11 NYCRR 65-3.5 (c). The hospital's assertion that emergency services were provided during admission did not identify the covered portion. Its inadequate response to the initial request and failure to answer the timely follow-up tolled the 30-day payment or denial period under 11 NYCRR 65-3.6 (b) and 65-3.8 (a) (1).
