Appellate Division, First Department
Feb 22, 2018
2018 NY Slip Op 01260
Provider prevailed
The arbitrators rationally found that a bus was a proximate cause of an injury sustained while exiting without lift assistance. The driver used the lift when the injured claimant boarded but refused to activate it or lower the bus when the claimant exited. The claimant placed a walker in the street and fell while exiting. Unlike Cividanes v City of New York, the accident involved use or operation of a motor vehicle under Insurance Law § 5104 (a). The Appellate Division, First Department, affirmed denial of the insurer's CPLR 7511 petition because the award had evidentiary support and a rational basis. De novo review under 11 NYCRR 65-4.10 (h) provided no basis to depart from the undisputed findings and rational rulings.
Appellate Division, First Department
Feb 6, 2018
2018 NY Slip Op 00810
Split result
The insurer's EUO defense failed for four claims because of untimely scheduling notices or insufficient denial grounds. The Appellate Division, First Department, modified the order and judgment, denying summary judgment and vacating noncoverage declarations for services on May 15, May 22, and May 31, while preserving the declaration for June 12 services. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), the insurer had to establish timely EUO notices. Its scheduling letter was untimely for the first two claims. Although notices for the two May 31 claims were timely, their denials identified only the first missed EUO, omitting the second appointment and inadequately stating the denial ground. The final claim was timely and properly denied.
Appellate Division, First Department
Feb 6, 2018
2018 NY Slip Op 00813
Split result
The insurer established entitlement to a no-fault default declaration except against one individual lacking nonmilitary-service proof. The Appellate Division, First Department, modified the order, insofar as appealed from, to grant default judgment under CPLR 3215 (f) against the other listed defaulting defendants and declare that they had no right to benefits for the accident. Denial remained in place for the individual defendant because the record contained no affidavit of nonmilitary service for that defendant.
Appellate Division, Third Department
Feb 1, 2018
2018 NY Slip Op 00584
Provider prevailed
An insurer must accept proof of claim on a nonprescribed form containing substantially the same information as the prescribed form. The Appellate Division, Third Department, affirmed denial of the insurer's summary judgment motion on the remaining verification issue after remittal from the Court of Appeals. The injured claimant sought wages from an offered job not yet started. Although the insurer lacked a completed NF-6 employer's report, counsel had supplied the employment application and signed offer detailing the work. The insurer also contacted the intended employer for an interview that could have supplied remaining information. Under 11 NYCRR 65-3.5 (f), 65-3.8 (a) (1), and 65-3.8 (b) (3), triable questions remained whether the wage claim was properly verified.
Appellate Term, Second Department
Feb 23, 2018
2018 NY Slip Op 50273(U)
Provider prevailed
The insurer's conclusory claim of law office failure did not establish a reasonable excuse for its default in appearing or answering. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Although CPLR 2005 permits acceptance of law office failure, counsel's affirmation lacked a detailed and credible explanation. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate the provider's default judgment, finding no improvident exercise of discretion. It did not reach whether the insurer had a meritorious defense and declined to address the service challenge first asserted at oral argument because it was omitted from the insurer's brief.
Appellate Term, First Department
Feb 22, 2018
2018 NY Slip Op 50238(U)
Provider prevailed
A master arbitrator may apply law to established facts and correct legal error even when reaching a conclusion different from the arbitrator's. The insurer sought vacatur under CPLR 7511 of an award of unpaid no-fault benefits and attorney fees. The master arbitrator rationally found that the provider established responses to verification demands, requiring the insurer to rebut presumed receipt or show timely payment, denial, or further verification requests. The insurer failed to do so. The legal analysis fell within the master arbitrator's authority under 11 NYCRR 65-4.10 (a) (4). The Appellate Term, First Department, affirmed the order and judgment denying the insurer's petition and confirming the award.
Appellate Term, Second Department
Feb 16, 2018
2018 NY Slip Op 50251(U)
Split result
The insurer established its IME nonappearance defense to the second claim, but the IME was scheduled too late to support the first. The first claim was received July 9 and the second August 6; the IME was set for August 29. Under 11 NYCRR 65-3.5 (d), that date exceeded 30 calendar days after receipt of the first claim but was timely for the second. Mailing proof, nonappearance evidence, and timely denial established the defense to the second claim without a triable issue. The provider failed to establish untimely or legally deficient denials. The Appellate Term, Second Department, modified the order to deny the provider's motion and dismiss the second cause of action, leaving dismissal of the first denied.
Appellate Term, Second Department
Feb 16, 2018
2018 NY Slip Op 50252(U)
Split result
The insurer's IME defense failed because the initial IME was not scheduled within 30 calendar days after receipt of the provider's claims. The insurer cross-moved for summary judgment based on the assignor's failure to appear for IMEs, but did not establish compliance with 11 NYCRR 65-3.5 (d). The provider also failed to establish entitlement to summary judgment because it showed neither untimely denials nor timely denials that were conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed, leaving the insurer's cross motion denied. The insurer's remaining contentions lacked merit.
Appellate Term, Second Department
Feb 9, 2018
2018 NY Slip Op 50200(U)
Provider prevailed
An order granting entry of a default judgment without declaring the parties' rights has no preclusive effect in a no-fault action. Before the provider commenced this action, the insurer sought declaratory relief against the provider and its assignor. The Supreme Court order granted the request for entry of a default judgment but did not declare the parties' rights. It therefore was not a conclusive final determination supporting res judicata or collateral estoppel. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion. Because the insurer raised no appellate issue concerning the provider's prima facie showing, the court expressly did not review that determination.
Appellate Term, Second Department
Feb 9, 2018
2018 NY Slip Op 50201(U)
Insurer prevailed
An unpleaded res judicata defense may support summary judgment absent surprise or prejudice to the opposing party. The insurer relied on a default declaratory judgment entered after its answer, declaring that it owed no coverage for the accident and that the provider and assignor were not entitled to reimbursement. The Appellate Term, Second Department, reversed, deemed the answer amended, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint. Although framed under CPLR 3211 (a) (5), the cross motion could be treated as one for summary judgment under CPLR 3211 (c) without notice because it presented a purely legal question. Recovery would impair rights established by the declaratory judgment.
Appellate Term, Second Department
Feb 9, 2018
2018 NY Slip Op 50202(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's claims on res judicata grounds was granted on appeal. The Appellate Term, Second Department, reversed, deemed the answer amended to assert that defense, and denied the provider's summary judgment motion. It relied on the companion appeal decided the same day, No. 2016-1297 K C, for its reasons.
Appellate Term, Second Department
Feb 9, 2018
2018 NY Slip Op 50203(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's claims on res judicata grounds was granted on appeal. The Appellate Term, Second Department, reversed, deemed the answer amended to assert that defense, and denied the provider's summary judgment motion. It relied on the companion appeal decided the same day, No. 2016-1297 K C, for its reasons.
Appellate Term, Second Department
Feb 8, 2018
2018 NY Slip Op 50185(U)
Split result
Disputed mailing of verification requests prevented summary judgment on one IME nonappearance claim because denial timeliness remained unresolved. The insurer established timely IME notices and the assignor's nonappearances. The Appellate Term, Second Department, modified the order, insofar as appealed from, denying insurer summary judgment on the claim received before the IMEs while affirming dismissal of the claim received afterward and timely denied. Under 11 NYCRR 65-3.5 (b) and 65-3.8 (l), verification requests could toll the denial period, but the provider's affidavit raised a mailing dispute. That dispute also defeated provider summary judgment. Denial of the provider's requests to strike the answer or compel a deposition was affirmed because the submitted service affidavit concerned another action and did not establish a deposition request here.
Appellate Term, Second Department
Feb 2, 2018
2018 NY Slip Op 50157(U)
Provider prevailed
The insurer failed to establish that the provider unreasonably delayed the action, so statutory prejudgment interest was not tolled. After a nonjury trial awarding the provider no-fault benefits, the insurer sought to toll interest based on delayed prosecution or to submit a posttrial brief. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, awarding interest from commencement. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (c) and (d), interest accrued from commencement unless the applicant unreasonably delayed the proceeding. The elapsed time alone did not establish the reason for the delay or attribute unreasonable delay to the provider.
Appellate Term, Second Department
Feb 2, 2018
2018 NY Slip Op 50152(U)
Provider prevailed
MVAIC failed to establish a reasonable excuse or a meritorious defense for vacating its default in answering the provider's complaint. MVAIC sought relief under CPLR 5015 (a) (1), alleging that it learned of the action and judgment years after entry. Those allegations rested neither on personal knowledge nor apparently on its records. Its claims manager stated that files had been scanned into a computer system and that MVAIC had no documentation with which to evaluate the claim. The Appellate Term, Second Department, affirmed denial of vacatur because both required showings were lacking. MVAIC's remaining contentions lacked merit or were raised for the first time on appeal.
Appellate Term, Second Department
Feb 2, 2018
2018 NY Slip Op 50158(U)
Provider prevailed
The insurer's request to toll no-fault prejudgment interest for the provider's delay in prosecuting the action was rejected on appeal. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, awarding the provider statutory prejudgment interest after a nonjury trial, for the reasons stated in the companion appeal decided the same day, No. 2016-2307 K C.
Appellate Term, Second Department
Feb 2, 2018
2018 NY Slip Op 50159(U)
Provider prevailed
The insurer's request to toll no-fault prejudgment interest for the provider's delay in prosecuting the action was rejected on appeal. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, awarding the provider statutory prejudgment interest from commencement of the action after a nonjury trial, for the reasons stated in the companion appeal decided the same day, No. 2016-2307 K C.
Appellate Term, Second Department
Feb 2, 2018
2018 NY Slip Op 50160(U)
Provider prevailed
The insurer's request to toll no-fault prejudgment interest for the provider's delay in prosecuting the action was rejected on appeal. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, awarding the provider statutory prejudgment interest after a nonjury trial, for the reasons stated in the companion appeal decided the same day, No. 2016-2307 K C.
Trial court, Second Department
Feb 24, 2018
2018 NY Slip Op 28058
Provider prevailed
The provider received excess attorney fees because its appeal presented a sufficiently novel issue concerning proof of its prima facie case. The Civil Court, Kings County, granted the motion under former 11 NYCRR 65-4.6 (f), awarding $12,325 for 49.3 hours at $250 per hour. The underlying appeals concerned whether a third-party billing company's affidavit established entitlement to no-fault reimbursement. Counsel's lack of contemporaneous time records and adequate market-rate proof prevented a lodestar calculation, but the court used quantum meruit, the insurer's conceded hours, and its own experience to value the services. Statutory attorney fees were outside the court's monetary jurisdictional limit, and time spent litigating the fee application was not compensable.
Trial court, Second Department
Feb 16, 2018
2018 NY Slip Op 51533(U)
Insurer prevailed
MVAIC established lack of coverage, and the provider failed to show exhaustion of remedies against the known vehicle owner. The Civil Court, Kings County, granted MVAIC summary judgment dismissing the assigned no-fault complaint and denied the provider's cross motion. The qualifications examiner's sworn affidavit established coverage from the offending vehicle and the absence of proof that the applicant was uninsured. A police report identified the owner and indicated that the vehicle was registered and insured in Mississippi. Under Insurance Law § 5202 (b) and TAM Med. Supply Corp. v MVAIC, exhaustion was a condition precedent; neither the provider nor its assignor was shown to have contacted or claimed against the owner. The lack-of-coverage defense was not precluded by an untimely denial.
Trial court, Second Department
Feb 7, 2018
2018 NY Slip Op 28052
Insurer prevailed
A no-fault insurer seeking a stay for a workers' compensation determination need show only potential merit to its coverage claim. The Civil Court, Richmond County, granted the insurer's motion to stay the provider's action pending a Workers' Compensation Board determination. The cab company owned the accident vehicle and was the named insured, supporting potential merit to the insurer's position that workers' compensation was available. Under Workers' Compensation Law § 2 (3), Insurance Law § 5102 (b) (2), and Liss v Trans Auto Sys., the Board had primary jurisdiction over coverage. The provider had to file proof of a Board application within 90 days or face summary judgment dismissing the complaint absent good cause.
Trial court, First Department
Feb 1, 2018
2018 NY Slip Op 50138(U)
Provider prevailed
The insurer was barred from reducing a judgment based on policy exhaustion known before trial but first raised after judgment. After a trial resulted in a judgment for the provider, the insurer moved under CPLR 5019 (a) to reduce the judgment to zero. The Civil Court, Bronx County, denied the motion and lifted all stays. The insurer did not rebut the provider's assertion that exhaustion was known before trial, and its own payment records supported that assertion. Applying Mount Sinai Hosp. v Dust Tr., Inc., the court found the defense waived. Authority permitting postjudgment exhaustion claims where no prior full and fair opportunity existed did not apply because the insurer could have litigated exhaustion at trial.
