Appellate Term, Second Department
Apr 13, 2018
2018 NY Slip Op 50583(U)
Insurer prevailed
A declaratory judgment barring coverage precluded the provider's no-fault recovery under res judicata and collateral estoppel. The insurer presented Supreme Court orders granting summary judgment against the provider and a default judgment against the assignor, without an opposing affidavit or attorney affirmation. The summary judgment order found a founded belief that the collision was staged; the subsequent judgment declared the policy void and barred coverage for claims arising from the loss. The Appellate Term, Second Department, took judicial notice of these public records, affirmed denial of the provider's summary judgment motion, and, upon searching the record, awarded the insurer summary judgment dismissing the complaint. It reached no other issue.
Appellate Term, Second Department
Apr 13, 2018
2018 NY Slip Op 50576(U)
Insurer prevailed
An insurer complying with the no-fault regulations need not prove that an assignor's failure to attend scheduled EUOs was willful. The provider challenged summary judgment dismissing its assigned-benefits complaint. The insurer established timely mailing of the EUO scheduling letters and denial forms under 11 NYCRR 65-3.5 (b) and 65-3.8 (l). Its attorney's affirmation established nonappearance because the attorney was present at the court reporting office on the scheduled dates to conduct the EUOs. The Appellate Term, Second Department, affirmed the order, rejecting both the mailing challenge and the asserted requirement to establish willfulness.
Appellate Term, Second Department
Apr 13, 2018
2018 NY Slip Op 50573(U)
Insurer prevailed
The insurer's IME report established lack of medical necessity for two prescription-drug claims, and the provider offered no opposition. The provider sought assigned no-fault benefits for prescription drugs, and the Civil Court denied the relevant branches of the insurer's summary judgment cross motion based on a perceived factual issue concerning medical necessity. The orthopedist's affirmed IME report supplied a factual basis and medical rationale for concluding that the assignor's injuries had resolved and the drugs were not medically necessary. Because the provider did not oppose the cross motion, that showing was unrebutted. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal of the two prescription-drug claims.
Appellate Term, Second Department
Apr 13, 2018
2018 NY Slip Op 50574(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing two medical-supply claims was granted on appeal. The Civil Court had found a factual issue concerning medical necessity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted those branches of the insurer's cross motion for the reasons stated in the companion appeal decided the same day, No. 2015-53 Q C.
Appellate Term, Second Department
Apr 13, 2018
2018 NY Slip Op 50578(U)
Split result
The insurer failed to establish that the assignor was not an eligible injured person, leaving a factual issue that defeated both motions. The insurer sought dismissal of assigned no-fault claims on the ground that the assignor was not a member of the policyholder's household. Its litigation supervisor's affidavit was conclusory and unsupported by competent evidence. Although the accident occurred in Pennsylvania, the NF-2 form stated that the assignor resided in Bronx County. The insurer therefore failed to establish ineligibility under 11 NYCRR 65-1.1 (d). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion because eligibility remained a triable issue.
Appellate Term, Second Department
Apr 6, 2018
2018 NY Slip Op 50497(U)
Insurer prevailed
The provider failed to establish a reasonable excuse or a meritorious claim warranting vacatur of its dismissal for failure to proceed at trial. Counsel appeared only to seek an adjournment in the then 11-year-old action, conceding that the provider had no witness and was unready. The action was dismissed under 22 NYCRR 208.14 (b) (2). Applying CPLR 5015 (a), the Appellate Term, Second Department, found no explanation for the lack of readiness, failure to seek an advance adjournment, or seven-month delay in seeking vacatur. The provider also failed to show abuse of discretion in denying the adjournment or a meritorious cause of action. The order denying vacatur was affirmed in the insurer's favor.
Appellate Term, Second Department
Apr 6, 2018
2018 NY Slip Op 50500(U)
Split result
The insurer failed to establish res judicata, but its proof of bill nonreceipt defeated the provider's summary judgment cross motion. The unpleaded defense could be considered because the provider alleged no surprise or prejudice under CPLR 3018 (b). The provider was neither named nor served in the declaratory judgment action and lacked privity with the injured party because the assignment preceded that action. The insurer's dismissal motion therefore remained denied. Although the provider's affidavit of personal mailing created a receipt presumption, the insurer rebutted it with an affidavit describing mail-receipt procedures and denying receipt. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion, and denied that motion, leaving both motions denied.
Trial court, First Department
Apr 24, 2018
2018 NY Slip Op 50807(U)
Provider prevailed
The insurer's inconsistent affidavit left a factual issue over proper and timely mailing of denials and reimbursement explanations. The provider sought unpaid balances on four invoices reduced under the workers' compensation fee schedule. The Civil Court, New York County, rejected the need for an expert affidavit: a claims adjuster could explain the calculations with relevant schedule excerpts. The provider supplied neither an affidavit supporting its calculations nor legal authority discrediting the schedule. However, the adjuster's affidavit conflicted on whether documentation was returned as undeliverable, and the insurer omitted discovery responses allegedly admitting receipt. The court denied the insurer's CPLR 3212 (b) motion for summary judgment because mailing remained disputed.
Trial court, First Department
Apr 4, 2018
2018 NY Slip Op 50556(U)
Provider prevailed
The rental awards had a rational basis because the equipment was absent from the Medicaid fee schedule and DOH had set no price. The Supreme Court, Bronx County, denied the insurer's unopposed petition to vacate and confirmed the master arbitration award under CPLR 7511 (e). The insurer challenged rental charges for a knee machine and water circulating pump, proposing a monthly limit of one-sixth of acquisition cost. Under 12 NYCRR 442.2 (b), the public rental rate applied because the items were absent from the Medicaid fee schedule and DOH had determined no rental price. The arbitrators rationally treated Medicaid policy guidelines as inapplicable under 12 NYCRR 442.2 (g). Agency correspondence did not establish a binding price determination or official regulatory interpretation requiring vacatur.
