Appellate Division, Second Department
Apr 26, 2017
2017 NY Slip Op 03177
The petitioning insurer waived its loss-transfer arbitrability objection by failing to seek a stay before participating in arbitration. The Appellate Division, Second Department, affirmed denial of vacatur and confirmation of two awards favoring the insurer that paid benefits to passengers in a for-hire vehicle. The petitioning insurer claimed retroactive rescission of its Pennsylvania policy. That coverage denial did not divest arbitral jurisdiction under 11 NYCRR 65-4.11 (a) (6); Insurance Law § 5105 (b) makes arbitration the exclusive loss-transfer forum. No ground under CPLR 7511 (b) (1) was established, and any possible error in applying New York law, including Vehicle and Traffic Law § 313 (1) (a), rather than Pennsylvania law did not warrant vacatur.
Appellate Division, Second Department
Apr 12, 2017
2017 NY Slip Op 02785
Insurer prevailed
An insurer's fraudulent incorporation defense is not precluded by failure to raise it in a timely denial. The Appellate Division, Second Department, reversed the order granting the provider's CPLR 7511 petition, denied the petition, and reinstated and confirmed the master arbitrator's award vacating an award for acupuncture reimbursement. Although factual review is limited to rationality, 11 NYCRR 65-4.10 (a) (4) permits a master arbitrator to correct substantive legal errors. The arbitrator erroneously refused to consider the insurer's Mallela defense because the insurer had not raised it in a timely denial. The master arbitrator correctly rejected that preclusion ruling, and the resulting vacatur was not irrational.
Appellate Division, Second Department
Apr 5, 2017
2017 NY Slip Op 02614
Insurer prevailed
A fraudulent-incorporation defense does not require proof of common-law fraud or fraudulent intent when the provider was incorporated. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, sustaining dismissal after a jury found nonphysician ownership or substantial control. Under Mallela, 11 NYCRR 65-3.16 (a) (12), and Business Corporation Law §§ 1507 (a) and 1508 (a), the charge properly directed consideration of the totality of the circumstances, including profit diversion and corporate formalities. Control ceded after incorporation also defeats eligibility. Admission of nonparty witnesses' Fifth Amendment invocations and an adverse-inference charge were erroneous but harmless under CPLR 2002 given overwhelming evidence. The court expressly left open the appropriate burden of proof.
Appellate Term, Second Department
Apr 28, 2017
2017 NY Slip Op 50607(U)
Insurer prevailed
The provider's action was barred by res judicata because a default declaratory judgment established the insurer's nonliability for the same claims. After the provider commenced its no-fault action, the insurer obtained a default judgment in Supreme Court declaring no obligation to pay claims arising from the accident because of the provider's EUO nonappearance. The provider disputed identity of issues. The Appellate Term, Second Department, concluded that a recovery in the pending action would destroy or impair rights established by the declaration under Schuylkill Fuel Corp. v Nieberg Realty Corp. It affirmed summary judgment dismissing the complaint for the insurer; arguments first raised on appeal were unpreserved and not considered.
Appellate Term, Second Department
Apr 28, 2017
2017 NY Slip Op 50605(U)
Provider prevailed
The insurer's law-office-failure claim did not explain its failure to submit timely written opposition to the provider's summary judgment motion. After one adjournment, the provider's motion was granted without opposition and judgment was entered. The insurer sought vacatur under CPLR 5015 (a) (1) and, upon vacatur, summary judgment dismissing the complaint. Although CPLR 2005 permits acceptance of law office failure as an excuse, Henry v Kuveke requires a detailed and credible explanation. None of counsel's allegations explained the default. The Appellate Term, Second Department, affirmed denial of vacatur; it did not reach whether the insurer had potentially meritorious opposition to the provider's motion.
Appellate Term, Second Department
Apr 27, 2017
2017 NY Slip Op 50593(U)
Insurer prevailed
The insurer established two EUO nonappearances and timely denials, warranting dismissal with prejudice rather than dismissal as premature. The provider failed to prove mailing of its objection letters, and its principal's prior EUO concerned claims received before those underlying the new requests. Under 11 NYCRR 65-1.1 (b), an insurer may reasonably require a provider's EUO. Office-practice affidavits established timely scheduling and denials; the conducting attorney's personal knowledge established nonappearance. The Appellate Term, Second Department, searched the record and modified the order to grant the insurer summary judgment with prejudice, leaving the provider's cross motion denied. It also rejected the provider's CPLR 4213 (b) objection because the motion ruling complied with CPLR 2219 (a).
Appellate Term, Second Department
Apr 27, 2017
2017 NY Slip Op 50599(U)
Provider prevailed
The insurer's summary judgment motion was denied on appeal as to unpaid services billed under CPT codes 97026 and 97016. The Appellate Term, Second Department, reversed the amended order insofar as appealed from because the insurer failed to demonstrate prima facie that it properly denied the unpaid portions under the workers' compensation fee schedule, citing Sama Physical Therapy, P.C. v American Tr. Ins. Co.
Appellate Term, Second Department
Apr 27, 2017
2017 NY Slip Op 50598(U)
Insurer prevailed
The insurer's fee-schedule motion for summary judgment on claims billed under CPT code 95831 was granted and affirmed. The Appellate Term, Second Department, affirmed the order insofar as appealed from, stating that the insurer proved proper application of CPT code 95833 and the provider raised no triable issue, citing Sama Physical Therapy, P.C. v American Tr. Ins. Co.
Appellate Term, Second Department
Apr 27, 2017
2017 NY Slip Op 50603(U)
Split result
The insurer failed to prove two IME nonappearances on one claim, and conflicting mailing evidence precluded summary judgment on another. An IME rescheduled by mutual agreement before its date did not count as a failure to appear, so the insurer did not establish breach of a coverage condition. The provider also failed to establish that the denial was untimely or the defense lacked merit. On the other claim, the insurer denied receipt, but the provider's employee described personally generating and mailing it, creating a presumption of receipt and a factual dispute. The Appellate Term, Second Department, modified the order to deny the insurer's motion; the provider's cross motion remained denied as to both claims.
Appellate Term, Second Department
Apr 27, 2017
2017 NY Slip Op 50597(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint on workers' compensation fee-schedule grounds was granted and affirmed. The Appellate Term, Second Department, affirmed the amended order, stating that the insurer sufficiently demonstrated prima facie that it properly applied the fee schedule and that the provider failed to raise a triable issue, citing Zuckerman v City of New York.
Appellate Term, First Department
Apr 26, 2017
2017 NY Slip Op 50568(U)
Insurer prevailed
Trial documents established that the assignor failed to report the accident within 24 hours, defeating the provider's claim against MVAIC. The assignor alleged an unidentified vehicle struck the assignor's bicycle, but the notice of intention filed 12 days later stated that no police were called. Under Insurance Law § 5208 (a) (2) (A), reporting was a condition precedent to payment. The provider showed neither timely reporting nor that reporting was not reasonably possible or occurred as soon as reasonably possible. The Appellate Term, First Department, reversed the nonjury judgment for the provider and entered judgment dismissing the complaint for MVAIC, leaving unconsidered a separate DMV report describing a collision with an animal.
Appellate Term, First Department
Apr 24, 2017
2017 NY Slip Op 50546(U)
Provider prevailed
MVAIC's contradictory descriptions of the assignor and the vehicle created triable issues rather than eliminating them. In seeking summary judgment dismissing the provider's first-party no-fault action, MVAIC variously described the assignor as a passenger, pedestrian and operator. Its submissions also variously described the vehicle as unknown, uninsured and owned by the assignor's spouse. Those conflicting accounts left genuine factual issues unresolved. The Appellate Term, First Department, reversed the order granting MVAIC's motion, denied summary judgment and reinstated the complaint in favor of the provider.
Appellate Term, First Department
Apr 21, 2017
2017 NY Slip Op 50537(U)
Insurer prevailed
MVAIC established that the assignor failed to report the accident to a police, peace or judicial officer within 24 hours. Under Insurance Law § 5208 (a) (2) (A), the provider's claim required compliance with that reporting condition. The notice of intent to make claim did not indicate any report, and affidavits showed repeated unanswered requests for reporting proof. The provider neither disputed noncompliance nor offered a reasonable excuse under Insurance Law § 5208 (a) (2) (B). The Appellate Term, First Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion for preclusion and summary judgment; other contentions lacked merit or were abandoned.
Appellate Term, First Department
Apr 21, 2017
2017 NY Slip Op 50539(U)
Insurer prevailed
MVAIC's untimely denial does not preclude a lack-of-coverage defense based on failure to file a timely notice of claim. MVAIC established that no timely notice had been filed and that leave to file a late notice had not been sought under Insurance Law § 5208 (a) and (c). A condition precedent to the provider's right to seek no-fault payment was therefore unsatisfied. The provider failed to raise a triable issue in opposition. Following Matter of MVAIC v Interboro Med. Care & Diagnostic PC on nonpreclusion of the coverage defense, the Appellate Term, First Department, affirmed the order granting MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 21, 2017
2017 NY Slip Op 50559(U)
Provider prevailed
The insurer failed to establish grounds to set aside the consent order granting the provider summary judgment. The insurer sought vacatur under CPLR 5015 (a) (1), asserting a reasonable excuse for default and a meritorious defense, and requested summary judgment dismissing the complaint upon vacatur. The Appellate Term, Second Department, affirmed the denial on a different ground from Civil Court. Because the underlying order was entered on consent, the insurer had to establish grounds sufficient to set aside a stipulation under Hallock v State of New York, and failed to do so.
Appellate Term, First Department
Apr 21, 2017
2017 NY Slip Op 50540(U)
Provider prevailed
The insurer failed to prove that the provider submitted its no-fault claims beyond the applicable 45-day limit. The insurer sought summary judgment dismissing the complaint under 11 NYCRR 65-1.1 (d). Its claims adjuster's affidavit did not describe the insurer's regular practices for retrieving, opening and indexing mail or maintaining existing claim files, and therefore did not establish that the bills were received late. Because the insurer failed to meet its initial burden, the sufficiency of the provider's opposition was immaterial. The Appellate Term, First Department, reversed the order, denied the insurer's motion and reinstated the complaint.
Appellate Term, Second Department
Apr 13, 2017
2017 NY Slip Op 50493(U)
Insurer prevailed
The provider's sole appellate argument was unpreserved because it had not been raised in the District Court. The insurer had moved for summary judgment dismissing the assigned no-fault action as premature on the ground that the provider had not supplied all requested verification. The District Court granted that motion. The Appellate Term, Second Department, affirmed the order based on the provider's failure to preserve the only issue it raised on appeal.
Appellate Term, Second Department
Apr 13, 2017
2017 NY Slip Op 50494(U)
The insurer was improperly denied an adjournment to present its sole medical expert on the only contested trial issue. Medical necessity was the sole issue at the nonjury trial. The insurer advised that its expert could not testify on Mondays without eight weeks' notice, but the continued trial was scheduled for another Monday and a further adjournment was refused. The expert's testimony was critical, the record showed no effort merely to delay trial, and the insurer was willing to attempt a Monday appearance with sufficient notice. The Appellate Term, Second Department, reversed the provider's judgment and remitted for a new trial, finding an improvident exercise of discretion in refusing an adjournment or suitable rescheduling.
Appellate Term, Second Department
Apr 13, 2017
2017 NY Slip Op 50495(U)
Insurer prevailed
The insurer proved timely mailing of its denials and that the disputed charges exceeded the workers' compensation fee schedule. The provider opposed the insurer's summary judgment motion with counsel's affirmation and an affidavit of medical necessity. The District Court denied the branch addressing excessive charges because it found timely denial unproved. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion of the complaint seeking the specified excess amount. The insurer established its fee-schedule defense, and the provider submitted no admissible evidence raising a triable issue concerning that defense.
Appellate Term, Second Department
Apr 13, 2017
2017 NY Slip Op 50496(U)
Provider prevailed
The insurer failed to establish proper and timely mailing of its medical-necessity denials. In the provider's action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint. Its claims adjuster's affidavit did not explain how the insurer obtained mailing addresses to ensure accuracy or state that postage was affixed to the envelopes. These omissions defeated the insurer's prima facie entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, First Department
Apr 12, 2017
2017 NY Slip Op 50460(U)
The respondent insurer's loss-transfer award was supported by the evidence and was not arbitrary and capricious. The petitioning insurer sought confirmation of an earlier arbitration award, while the respondent cross-petitioned to confirm a later award allowing recoupment of paid no-fault benefits. The earlier award expressly permitted the respondent to refile with additional evidence. Any asserted error in considering evidence was not sufficiently gross or palpable to establish fraud or misconduct under CPLR 7511 (b) (1) (i), and did not itself warrant vacatur. The Appellate Term, First Department, affirmed the order denying the petition and granting the respondent's cross-petition to confirm the later award.
Appellate Term, Second Department
Apr 12, 2017
2017 NY Slip Op 50487(U)
Insurer prevailed
The insurer obtained renewal and dismissal because an unchallenged release completely barred the provider's no-fault action. Civil Court denied relief on the premise that its prior summary judgment order was entered on default, although the record showed opposition and reply papers. Under CPLR 2221 (e) (2) and (3), renewal requires new facts that would change the determination and reasonable justification for not presenting them earlier. The insurer submitted a release executed by the provider's sole officer and shareholder covering the underlying claims, and counsel stated that counsel had been unaware of it. The Appellate Term, Second Department, reversed, granted renewal and, upon renewal, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Apr 12, 2017
2017 NY Slip Op 50488(U)
Insurer prevailed
The insurer obtained vacatur and dismissal based on an unchallenged general release withdrawing the provider's pending no-fault claims. Civil Court had granted the provider summary judgment after rejecting the insurer's combined cross motion and opposition as one business day late. Seeking vacatur, the insurer submitted a release executed by the provider's sole officer and shareholder before the provider's motion, releasing pending claims against any insurer. The provider did not contest its validity, authenticity or applicability. Applying Woodson v Mendon Leasing Corp., the Appellate Term, Second Department, reversed in the interests of substantial justice, vacated the prior order, denied the provider's motion and granted the insurer's cross motion, also citing the companion appeal decided the same day, No. 2015-1217 K C.
Appellate Term, Second Department
Apr 11, 2017
2017 NY Slip Op 50551(U)
Split result
The provider failed to establish valid service outside New York City, while the insurer failed to justify acceptance of its late answer. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's request to compel acceptance of its untimely answer, but affirmed denial of the provider's default-judgment motion. The insurer essentially conceded that it supplied neither a reasonable excuse nor a meritorious defense. Under New York City Civil Court Act §§ 403 and 404, the provider's service in Suffolk County required a statutory basis for service outside the city. Neither its complaint nor its motion papers alleged facts supporting such jurisdiction, so it failed to establish entitlement to a default judgment under CPLR 3215.
Appellate Term, Second Department
Apr 11, 2017
2017 NY Slip Op 50552(U)
Insurer prevailed
The insurer established a reasonable excuse for its late answer and a potentially meritorious medical-necessity defense. After the insurer failed to answer timely, the provider sought leave to enter a default judgment under CPLR 3215, and the insurer cross-moved to compel acceptance of its previously served untimely answer. The insurer's documents and detailed affidavits sufficiently established nonreceipt of the summons and complaint and a potentially viable defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and compelling acceptance of the insurer's answer.
Appellate Term, Second Department
Apr 7, 2017
2017 NY Slip Op 50424(U)
Insurer prevailed
The insurer proved that the Massachusetts policy limits were exhausted before it became obligated to pay the provider's claims. The policy was issued to a Massachusetts resident for a vehicle principally garaged there, and the insured's signed NF-2 form showed that the accident occurred in Massachusetts. Those significant contacts supported applying Massachusetts law to the substantive issues. The insurer's evidence, including the assignor's statement, established exhaustion under Massachusetts General Laws chapter 90, §§ 34A and 34M, and the provider raised no triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2017
2017 NY Slip Op 50431(U)
Provider prevailed
The insurer failed to show diligence in securing expert witnesses during the six weeks before trial, supporting denial of an adjournment. Medical necessity was the only remaining trial issue. On the trial date, counsel asserted that six weeks was insufficient to book witnesses, but made no showing of efforts to obtain their attendance. Although expert testimony was critical, the action had been pending almost five years. Because the insurer could not proceed without its experts, Civil Court directed entry of judgment for the provider. The Appellate Term, Second Department, affirmed, finding that denial of the adjournment was within the trial court's discretion.
Appellate Term, Second Department
Apr 7, 2017
2017 NY Slip Op 50433(U)
Provider prevailed
The provider's trial judgment was affirmed on the insurer's challenge to denial of an adjournment to secure expert witnesses. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2015-2880 Q C.
Appellate Term, Second Department
Apr 7, 2017
2017 NY Slip Op 50434(U)
Provider prevailed
The provider's trial judgment was affirmed on the insurer's challenge to denial of an adjournment to secure expert witnesses. The Appellate Term, Second Department, relied on the reasons stated in Middle Village Chiropractic v GEICO Gen. Ins. Co., the companion appeal decided the same day, No. 2015-2880 Q C.
Appellate Term, Second Department
Apr 3, 2017
2017 NY Slip Op 50408(U)
Insurer prevailed
The provider's nonspecific response to verification requests left its action premature because requested information remained outstanding. The ambulatory facility stated that it did not possess all medical records and directed the insurer to seek additional information from the treating provider. Its letter identified neither a specific request nor any requested item outside its possession. The insurer established nonreceipt of the requested verification, and the provider did not show that it supplied all requested items in its possession. Under 11 NYCRR 65-3.8 (a) (1), the insurer's 30-day payment or denial period had not begun. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint as premature.
