Appellate Division, Third Department
Aug 30, 2017
2017 NY Slip Op 05911
Insurer prevailed
The injured claimant's projected lost earnings were unreasonable given the prospective employer's financial distress and lack of a repair shop. The Appellate Division, Third Department, reversed the order, granted the insurer summary judgment, and dismissed the complaint. Insurance Law § 5102 (a) (2) and 11 NYCRR 65-3.16 (b) (3) require demonstrated future earnings reasonably projected. Crediting the employment offer, the majority found the projected earnings unreasonable based on the business's failing finances, absence of efforts to open the planned repair shop, and the claimant's history of operating an unprofitable repair business. The verification defense became academic. Two judges dissented, finding factual questions concerning the job offer and projected earnings and concluding that the majority improperly assessed credibility.
Appellate Division, Second Department
Aug 9, 2017
2017 NY Slip Op 06065
Provider prevailed
The insurer's default judgment motion failed because it did not timely file the required affidavit of compliance and return receipt. The Appellate Division, Second Department, affirmed denial of the unopposed motion on a different ground. The insurer sought de novo adjudication under Insurance Law § 5106 (c) based on lack of medical necessity and attempted service on an unauthorized foreign LLC. CPLR 3215 (f) requires proof of proper service. Strict compliance with Limited Liability Company Law § 304 (b) and (c) (2) required filing the affidavit and return receipt within 30 days after receipt from the post office. The insurer failed that requirement; its remaining contention was not reached.
Appellate Division, Second Department
Aug 2, 2017
2017 NY Slip Op 05992
Insurer prevailed
The provider failed to show a potentially meritorious defense with an attorney-verified answer and counsel's affirmation. The Appellate Division, Second Department, affirmed denial of the provider's motion to extend its time to answer or compel acceptance of an untimely answer in the insurer's declaratory judgment action based on EUO nonappearance. The answer was filed approximately three and one-half months after the deadline. Relief required both a reasonable excuse and a potentially meritorious defense. The answer was verified only by counsel, and counsel's affirmation lacked personal knowledge of the facts, making those submissions insufficient to establish a potentially meritorious defense.
Appellate Term, Second Department
Aug 25, 2017
2017 NY Slip Op 51102(U)
Split result
The insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in Island Life Chiropractic, P.C. v Country Wide Ins. Co. and otherwise affirmed, leaving intact the denial of the provider's motion for summary judgment.
Appellate Term, Second Department
Aug 25, 2017
2017 NY Slip Op 51103(U)
Split result
The insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in Island Life Chiropractic, P.C. v Country Wide Ins. Co. and otherwise affirmed, leaving intact the denial of the provider's motion for summary judgment.
Appellate Term, Second Department
Aug 18, 2017
2017 NY Slip Op 51091(U)
Split result
Postjudgment interest on a no-fault judgment is calculated under CPLR 5004, rather than at two percent per month under 11 NYCRR 65-3.9 (a). Under CPLR 5003, interest generally accrues from entry until payment. The provider neither prevented payment nor caused delay and was not required to demand payment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion to toll interest. It modified a subsequent order to direct entry under CPLR 5021 (a) of only a partial satisfaction for $22,999.70, reflecting endorsed checks proving partial payment, and otherwise affirmed. The insurer's cross appeal was dismissed as abandoned, and the provider's claim to the regulatory interest rate was rejected.
Appellate Term, Second Department
Aug 18, 2017
2017 NY Slip Op 51083(U)
Insurer prevailed
The insurer's record-search affidavit established that no relevant policy was in effect on the accident date, and the provider raised no factual issue. The insurer opposed the provider's summary judgment motion and cross-moved to dismiss on the ground that it did not cover the vehicle on that date. Its employee described the record search and reported that no relevant policy was in effect. That affidavit established 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 motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 18, 2017
2017 NY Slip Op 51084(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on lack of coverage for the vehicle on the accident date was granted and affirmed. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and dismissing the complaint for the reasons stated in the companion appeal decided the same day, No. 2014-1319 Q C.
Appellate Term, Second Department
Aug 18, 2017
2017 NY Slip Op 51088(U)
Insurer prevailed
The insurer's late opposition papers were properly considered and raised a factual issue as to whether the claims had been timely denied. The provider appealed only the denial of its cross motion for summary judgment in an action to recover assigned first-party no-fault benefits. Under CPLR 2004, the Civil Court did not improvidently exercise its discretion in considering the late papers. Because those papers raised a triable issue concerning timely denial, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's cross motion denied.
Appellate Term, Second Department
Aug 18, 2017
2017 NY Slip Op 51089(U)
Insurer prevailed
A Mallela defense need not be preserved in a timely denial of claim. The provider challenged an order striking its notice of trial and compelling verified responses and documents relevant to that defense, arguing that the insurer's failure to prove timely denials made the discovery demands improper. Although first raised on appeal, the preclusion question was reviewable as a legal issue apparent on the record that could not have been avoided if timely raised; the insurer had also addressed it below. The Appellate Term, Second Department, rejected the preclusion argument and affirmed the order, insofar as appealed from, leaving the insurer's discovery relief intact.
Appellate Term, Second Department
Aug 17, 2017
2017 NY Slip Op 51077(U)
Insurer prevailed
The provider's petition to vacate the master arbitrator's award was denied because the determination had a rational basis and conformed to settled law. The Appellate Term, Second Department, affirmed denial of vacatur under CPLR article 75 and grant of the insurer's cross petition confirming the award denying no-fault claims under Insurance Law § 5106 (b). The court noted that CPLR 411 requires a judgment terminating a special proceeding.
Appellate Term, Second Department
Aug 17, 2017
2017 NY Slip Op 51078(U)
Insurer prevailed
The provider's petition to vacate the master arbitrator's award was denied because the determination had a rational basis and conformed to settled law. The Appellate Term, Second Department, affirmed denial of vacatur under CPLR article 75 and grant of the insurer's cross petition confirming the award denying no-fault claims under Insurance Law § 5106 (b). The court noted that CPLR 411 requires a judgment terminating a special proceeding.
Appellate Term, Second Department
Aug 17, 2017
2017 NY Slip Op 51079(U)
Insurer prevailed
The provider's petition to vacate the master arbitrator's award was denied because the determination had a rational basis and conformed to settled law. The Appellate Term, Second Department, affirmed denial of vacatur under CPLR article 75 and grant of the insurer's cross petition confirming the award denying no-fault claims under Insurance Law § 5106 (b). The court noted that CPLR 411 requires a judgment terminating a special proceeding.
Appellate Term, Second Department
Aug 17, 2017
2017 NY Slip Op 51080(U)
Insurer prevailed
The provider's petition to vacate the master arbitrator's award was denied because the determination had a rational basis and conformed to settled law. The Appellate Term, Second Department, affirmed denial of vacatur under CPLR article 75 and grant of the insurer's cross petition confirming the award denying no-fault claims under Insurance Law § 5106 (b). The court noted that CPLR 411 requires a judgment terminating a special proceeding.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51012(U)
Insurer prevailed
A provider that fails to object timely to discovery demands must respond except as to privileged or palpably improper matters. The provider missed the objection deadlines under CPLR 3122 (a) and CPLR 3133 (a). Demands concerning precluded defenses may be palpably improper despite untimely objections, but the requested financial and business records were not palpably improper under Mallela. The insurer was also entitled to depose the provider's owner under CPLR 3101 (a). Because discovery remained outstanding, the provider's summary judgment cross motion was premature under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling discovery and the owner's deposition and denying the provider's cross motion.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51039(U)
Provider prevailed
A court may search the record and award summary judgment based on admissions and documentary evidence. The insurer sought dismissal of two no-fault claims as premature for failure to supply requested verification. The Civil Court, Kings County, denied that motion and, upon searching the record, awarded the provider summary judgment on one bill. The Appellate Term, Second Department, rejected the insurer's sole challenge to that award, which disputed the basis for searching the record. As to the other bill, the insurer's brief supplied no basis to disturb the finding of a triable issue concerning the adequacy of the provider's verification responses. The order was affirmed.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51021(U)
Insurer prevailed
The insurer's summary judgment dismissal for lack of a policy covering the accident vehicle was upheld after reargument and renewal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to the prior dismissal of the provider's complaint for assigned no-fault benefits, for the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51019(U)
Insurer prevailed
The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms. The provider appealed summary judgment dismissing its complaint for assigned no-fault benefits, challenging both the mailing proof and proof of nonappearance. The Appellate Term, Second Department, found the defendant's submissions sufficient on both points and affirmed the order. It declined to consider the provider's remaining contention because that argument was raised for the first time on appeal.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51018(U)
Insurer prevailed
The insurer's summary judgment motion was granted on its defense that it had issued no policy covering the accident vehicle. The Appellate Term, Second Department, reversed the order denying the motion and dismissed the provider's complaint for assigned no-fault benefits for the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51017(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint was affirmed on its defense that it had issued no policy covering the accident vehicle. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which also denied the provider's summary judgment motion, for the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51014(U)
Insurer prevailed
The insurer's summary judgment motion was granted on its defense that it had issued no policy covering the accident vehicle. The Appellate Term, Second Department, reversed the order denying the motion and dismissed the provider's complaint for assigned no-fault benefits for the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51013(U)
Insurer prevailed
The provider's summary judgment cross motion was denied, and the insurer's motion to compel discovery and an owner's deposition was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which compelled verified discovery responses and the owner's appearance for an examination before trial, for the reasons stated in the companion appeal decided the same day, No. 2014-1033 K C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51016(U)
Insurer prevailed
The provider's summary judgment cross motion was denied, and the insurer's motion to compel discovery and an owner's deposition was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which compelled verified discovery responses and the owner's appearance for an examination before trial, for the reasons stated in the companion appeal decided the same day, No. 2014-1033 K C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51022(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether requested verification had been mailed to and received by the insurer. The insurer moved for summary judgment dismissing the assigned no-fault action as premature because verification remained outstanding. Although the insurer demonstrated nonreceipt, the provider's opposing affidavit established a presumption of mailing and receipt under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. That competing proof created a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51025(U)
Provider prevailed
The insurer's motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order dismissing the provider's action as premature for failure to supply requested verification, for the reasons stated in the companion appeal, Pierre Jean Jacques Renelique v American Tr. Ins. Co., decided the same day, No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51026(U)
Provider prevailed
The insurer's motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order dismissing the provider's action as premature for failure to supply requested verification, for the reasons stated in the companion appeal, Pierre Jean Jacques Renelique v American Tr. Ins. Co., decided the same day, No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51027(U)
Provider prevailed
The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, reversed dismissal of the provider's no-fault complaint for the reasons stated in the companion appeal decided the same day, No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51031(U)
Provider prevailed
The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, reversed dismissal of the provider's no-fault complaint for the reasons stated in the companion appeal decided the same day, No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51032(U)
Provider prevailed
The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, reversed dismissal of the provider's no-fault complaint for the reasons stated in the companion appeal decided the same day, Pierre Jean Jacques Renelique v American Tr. Ins. Co., No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51033(U)
Provider prevailed
The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, reversed dismissal of the provider's no-fault complaint for the reasons stated in the companion appeal decided the same day, Pierre Jean Jacques Renelique v American Tr. Ins. Co., No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 11, 2017
2017 NY Slip Op 51034(U)
Provider prevailed
The insurer's summary judgment motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, reversed dismissal of the provider's no-fault complaint for the reasons stated in the companion appeal decided the same day, Pierre Jean Jacques Renelique v American Tr. Ins. Co., No. 2014-1538 Q C.
Appellate Term, Second Department
Aug 10, 2017
2017 NY Slip Op 51011(U)
Split result
The insurer's contradictory IME report failed to establish that the assignor's knee injury lacked a causal connection to the accident. The report attributed the injury both partly to the accident and to preexisting degeneration; the reviewed MRI report did not identify degenerative changes, and the examiner did not indicate reviewing the operative report. The provider also failed to establish either a denial beyond the 30-day period or a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion and otherwise affirmed, leaving the provider's cross motion denied. It did not reach the provider's remaining contention.
Appellate Term, Second Department
Aug 4, 2017
2017 NY Slip Op 51264(U)
An insurer may prove lack of medical necessity at trial through an expert who did not prepare the underlying peer review report. The Civil Court disregarded the insurer's expert testimony concerning a cervical traction unit because the report was not in evidence and its author did not testify. The expert's testimony should be confined to the denial's stated basis, but the provider must object to testimony exceeding that basis and, if necessary, produce the report. The provider made no appropriate objection. The Appellate Term, Second Department, reversed the judgment and remitted for a new trial on the second cause of action and entry of judgment for the provider on the first, with statutory interest and attorney's fees.
