Appellate Term, Second Department
Jun 23, 2017
2017 NY Slip Op 27214
Provider prevailed
An insurer's action declaring a provider ineligible for no-fault benefits falls outside Civil Court's declaratory judgment jurisdiction. The insurer invoked res judicata based on a default declaration that the provider's EUO nonappearance barred recovery. Civil Court searched the record and dismissed that provider's claims. Under CCA 212-a and CPLR 3001, the earlier action did not involve an insurer's obligation to indemnify or defend a defendant in an action within the statutory monetary limit, so Civil Court lacked subject matter jurisdiction. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and vacated the dismissal. It directed that Five Boro Psychological Servs., P.C. v AutoOne Ins. Co. not be followed to the extent it held otherwise.
Appellate Term, Second Department
Jun 23, 2017
2017 NY Slip Op 50856(U)
Provider prevailed
The insurer failed to establish that policy limits were exhausted when the provider's claim became complete. Seeking summary judgment, the insurer asserted exhaustion under a Massachusetts-issued policy that it acknowledged provided personal injury protection benefits pursuant to New York law. It contended that claims exceeded the available coverage and that it had paid the policy limit in accordance with 11 NYCRR 65-3.15. Under that regulation and Nyack Hosp. v General Motors Acceptance Corp., however, it did not establish exhaustion at the relevant time. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.
Appellate Term, Second Department
Jun 23, 2017
2017 NY Slip Op 50855(U)
Split result
The insurer failed to prove exhaustion of applicable coverage, and the provider failed to establish its entitlement to summary judgment. Georgia substantive law governed under the policy's choice-of-law clause, while New York procedure applied. The insurer authenticated the policy and declaration page but supplied no foundation for payment printouts offered to prove exhaustion. It also supplied no information on South Carolina's minimum coverage requirements, although the accident occurred there and the policy increased out-of-state coverage as local law required. The provider's affidavit proved mailing but did not establish an untimely denial or a timely denial lacking legal merit. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion, leaving the provider's motion denied.
Appellate Term, Second Department
Jun 23, 2017
2017 NY Slip Op 50864(U)
Split result
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was denied on appeal. The Appellate Term, Second Department, relied on the reasons stated in Island Life Chiropractic Pain Care, PLLC v Country Wide Ins. Co. It modified the order to deny the insurer's cross motion while leaving the denial of the provider's summary judgment motion intact.
Appellate Term, Second Department
Jun 2, 2017
2017 NY Slip Op 50761(U)
Insurer prevailed
MVAIC's payment log and claims representative's affidavit supported dismissal based on exhaustion of the applicable no-fault benefits. The Civil Court denied the provider's motion for summary judgment and granted MVAIC's cross motion dismissing the assigned-benefits complaint for lack of coverage due to exhausted limits. On appeal, the provider challenged the evidence supporting the cross motion. The Appellate Term, Second Department, concluded that the payment log was properly considered and that the representative's affidavit sufficiently established when MVAIC received the claims listed in the log. It affirmed the order in favor of MVAIC.
Appellate Term, Second Department
Jun 2, 2017
2017 NY Slip Op 50760(U)
The provider's judgment on a directed verdict concerning the IME nonappearance defense was reversed for a new trial. The trial court had barred defense evidence because an earlier order denied the defendant summary judgment. The Appellate Term, Second Department, remitted the matter for the reasons stated in the companion appeal decided the same day, No. 2014-1114 K C, without giving independent reasoning.
Appellate Term, Second Department
Jun 2, 2017
2017 NY Slip Op 27193
Denial of summary judgment does not itself bar an insurer from proving an IME nonappearance defense at trial. At a nonjury trial, the parties stipulated to the provider's prima facie case and the timely denial based on the assignor's failure to attend scheduled IMEs. The Civil Court barred defense evidence because an earlier order had denied the insurer summary judgment, then directed a verdict for the provider. Following Vitality Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, explained that denial of summary judgment is not an adjudication on the merits; CPLR 3212 (g) permits identification of established facts. It reversed the judgment and remitted for a new trial permitting defense evidence.
Appellate Term, Second Department
Jun 2, 2017
2017 NY Slip Op 50771(U)
Provider prevailed
The insurer failed to justify modifying a judgment because it proved neither exhaustion when claims became complete nor a technical error. After a nonjury trial produced a judgment for the provider, the insurer sought modification under CPLR 5019 (a) and 5240. Its papers did not establish that coverage was exhausted when the claims were deemed complete, as required by 11 NYCRR 65-3.15 and Nyack Hosp. v General Motors Acceptance Corp. It also identified no technical defect or ministerial mistake not affecting a substantial right under CPLR 5019 (a). The Appellate Term, Second Department, affirmed the order insofar as appealed from, leaving open whether proven exhaustion could otherwise support postjudgment relief.
Trial court, Second Department
Jun 27, 2017
2017 NY Slip Op 51354(U)
Insurer prevailed
The provider's two EUO nonappearances breached a condition precedent, and its post-denial letters did not excuse noncompliance. The District Court, Suffolk County, granted the insurer summary judgment under CPLR 3212 (b). Mailing procedures and the conducting attorney's affirmation proved notice and nonappearance; denials followed within 14 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (c). Requests properly went to the provider under 11 NYCRR 65-3.5 (b) and 65-3.6 (b); no attorney appearance was shown. Response letters followed denial and were inadmissible under CPLR 4518. The court deemed the reasonableness challenge moot and waived, denied another EUO opportunity and left remaining contentions academic.
Trial court, Second Department
Jun 22, 2017
2017 NY Slip Op 50897(U)
Insurer prevailed
The insurer established that the provider's claim was not overdue because requested MRI films remained outstanding. The Supreme Court, Nassau County, granted the insurer's summary judgment cross motion declaring the provider not entitled to reimbursement and denied the provider's dismissal and consolidation requests. The insurer requested films from the imaging facility, followed up, and notified the provider when the requests went unanswered. The provider's submissions concerning surgical photographs and an authorization did not establish compliance. Outstanding verification tolled payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8. Prior arbitration did not bar the action: Insurance Law § 5106 (c) permits de novo determination when a master arbitration award equals or exceeds $5,000, excluding interest and attorney fees.
Trial court, Second Department
Jun 21, 2017
2017 NY Slip Op 50829(U)
Insurer prevailed
The injured claimant lacked standing to recover chiropractic expenses after assigning the right to payment to the treating provider. The District Court, Nassau County, granted the insurer's motion under CPLR 3212 and dismissed the action. The signed assignment clearly transferred all rights, privileges and remedies to payment for the provider's services. Following Lopes v Liberty Mutual Insurance Company and 11 NYCRR 65-3.11 (a), the assignment required payment directly to the provider. The insurer established the assignment, while the claimant's opposition failed to address standing. Counsel's affirmation, without an affidavit from the claimant, did not raise a triable issue.
Trial court, Second Department
Jun 14, 2017
2017 NY Slip Op 50981(U)
Provider prevailed
The insurer failed to establish proper mailing of verification requests and its denial, or that requested verification remained outstanding. The insurer sought summary judgment under CPLR 3212 based on failure to supply additional verification within 120 days under 11 NYCRR 65-3.5 (o). The District Court, Suffolk County, denied the motion. The litigation supervisor's affidavit was conclusory, based on hearsay and insufficient to describe mailing practices establishing timely, proper mailing of the requests and denial. The insurer's own submissions showed receipt of a physician's letter of medical necessity despite its claim that such information was missing. It also failed to show notice to the applicant and attorney identifying missing verification under 11 NYCRR 65-3.6 (b). The court did not reach remaining contentions.
