Court of Appeals
May 1, 2018
2018 NY Slip Op 03093
Insurer prevailed
No-fault claims against a self-insurer are subject to the three-year statute of limitations under CPLR 214 (2). The provider sought assigned benefits for treatment of a passenger injured on the self-insurer's bus. Because no insurance contract required payment, the obligation arose wholly from the Vehicle and Traffic Law and Insurance Law. First-party benefits were unknown at common law, making the liability statutory rather than contractual under CPLR 213 (2). The Court of Appeals reversed the Appellate Division order and granted dismissal as time-barred. A separate concurrence emphasized that the limitations period for insurers issuing policies remained unresolved, and three judges dissented in favor of a uniform six-year period.
Appellate Division, Second Department
May 30, 2018
2018 NY Slip Op 03831
Split result
CPLR 1209 requires court authorization for arbitration only when the infant is a party, not when a provider proceeds as the infant's assignee. The Appellate Division, Second Department, affirmed the order, insofar as appealed and cross-appealed from, vacating the arbitration and master arbitration awards and directing further arbitration, but denying the provider attorney fees. The patient and parent had executed an assignment. Because the provider brought the arbitration under 11 NYCRR 65-3.11 (a), dismissal for failure to obtain infant-arbitration approval disregarded established law. The master arbitrator's separate finding that the assignment was ineffective lacked a basis in law or regulation. Fees were denied under Insurance Law § 5106 (a) because the arbitrator had not determined whether the claims were overdue.
Appellate Division, Second Department
May 23, 2018
2018 NY Slip Op 03676
Split result
MVAIC cannot require a release before paying a judgment, and a tender conditioned on a release does not stop postjudgment interest. The injured claimant petitioned under Insurance Law § 5210 to compel payment of an unpaid judgment against an uninsured vehicle owner. The Appellate Division, Second Department, modified the judgment to limit MVAIC's liability to $25,000 under Insurance Law § 5210 (a) (1), plus allowable interest and costs. Interest accrued on $25,000 from entry of the underlying judgment at nine percent under CPLR 5003 and 5004. Insurance Law § 5213 (b) and CPLR 5003-a permit a release upon settlement, but the underlying action ended in judgment. The claimant retained interest and costs; MVAIC obtained a reduction and exclusion of disbursements.
Appellate Division, First Department
May 10, 2018
2018 NY Slip Op 03444
Provider prevailed
The insurer failed to establish adequate IME notice because a scheduling letter to the injured claimant went to the wrong address. The Appellate Division, First Department, affirmed the order, insofar as appealed from, denying summary judgment declaring noncoverage against the provider. The insurer relied on the claimant's IME nonappearances under 11 NYCRR 65-1.1 (d). A third letter sent to counsel indicated that the claimant had received a copy, but the claimant's copy was misaddressed. Counsel therefore had no reason to know notice had not reached the claimant or to relay the new appointment. The insurer failed to show notice reasonably calculated to communicate the required IME date and location.
Appellate Division, First Department
May 3, 2018
2018 NY Slip Op 03226
Insurer prevailed
The insurer's scheduling letters, service affidavits, and medical professionals' affidavits established the claimants' IME nonappearances. The Appellate Division, First Department, reversed the order, granted summary judgment, and declared that the insurer had no obligation to pay the two providers' claims. Relief was limited to the first cause of action asserting IME nonappearance. The proof documented two appointments for each claimant and medical professionals' presence and contemporaneous nonappearance affidavits. Under 11 NYCRR 65-1.1, nonappearance breached a condition precedent to coverage. Because notices preceded receipt of the claims, the verification-notice requirements of 11 NYCRR 65-3.5 and 65-3.6 did not apply. Timely disclaimer was unnecessary because IME nonappearance was an absolute coverage defense.
Appellate Term, First Department
May 30, 2018
2018 NY Slip Op 50786(U)
The court considered the denial of motions for leave to reargue and vacate prior judgments which granted petitioner's applications to vacate master arbitration awards. The main issue decided was whether the judgments were obtained through fraud, misrepresentation, or other misconduct. The holding of the court was that the Civil Court properly denied the motions to vacate the judgments, as the respondents' contentions that the petitioner had knowledge of the alleged conflicts of the arbitrator amounted to nothing more than defense arguments which could have been asserted prior to the entry of judgment. Therefore, the orders affirming the denial of the motions were upheld, and the remaining arguments of the respondents were found to be unavailing.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50781(U)
Insurer prevailed
The insurer's proof of delayed receipt raised a factual issue concerning timely mailing of the provider's claim forms. The provider relied on a standard mailing practice to obtain summary judgment on its second through fourth causes of action. The insurer showed receipt more than 45 days after the services and mailing of late-submission denials within 30 days of receipt, invoking 11 NYCRR 65-2.4 (c). Although an office mailing practice creates a rebuttable presumption of receipt, the insurer's evidence raised a triable issue whether that practice resulted in timely mailing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion as to those causes of action.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50766(U)
Split result
The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment. The insurer's affidavit did not sufficiently describe an office practice ensuring proper addressing and mailing. It therefore failed to show duly scheduled IMEs or the assignor's failure to attend them. The provider's affidavit, in turn, did not establish that its claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment dismissing the complaint and otherwise affirmed, leaving denial of the provider's cross motion intact.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50778(U)
Insurer prevailed
The provider's trial judgment against MVAIC was reversed in a dispute over the assignor's status as a qualified person. The sole issue at the nonjury trial was whether that status made the assignor eligible for no-fault benefits. The Appellate Term, Second Department, relied on the reasons stated in Village Med. Supply, Inc. v MVAIC and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50774(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for EUO nonappearance was affirmed on appeal. The Appellate Term, Second Department, found the insurer's proof sufficient to establish the assignor's failure to attend the scheduled EUOs, rejecting the provider's only challenge to that motion. The affirmed order also denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50768(U)
Insurer prevailed
MVAIC established that no timely notice to make claim was filed, leaving the assignor outside covered-person status. Under Insurance Law § 5208 (a) and § 5221 (b) (2), timely filing was a condition precedent to the provider's right to seek assigned no-fault benefits. The provider neither showed that leave to file a late notice had been obtained under Insurance Law § 5208 (c) nor raised another triable factual issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's cross motion for summary judgment dismissing the complaint, reaching no other issue.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50767(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted. The Appellate Term, Second Department, affirmed, rejecting the provider's challenges and finding that the insurer's proof sufficiently established proper mailing of the EUO scheduling letters and the provider's failure to appear for the scheduled EUOs.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50769(U)
Split result
The insurer proved full fee-schedule payment of one bill but failed to establish timely IME notices for the remaining bills. The Civil Court had found timely mailing of the denials, in effect under CPLR 3212 (g). For one bill, the insurer's unrebutted proof established full payment under the workers' compensation fee schedule. For the others, it failed to establish timely mailing of the initial and follow-up IME letters and thus nonappearance at duly scheduled IMEs. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal of the fully paid claim and affirmed the denial of summary judgment on the remaining claims.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50770(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint based on EUO and IME nonappearances was granted. The Appellate Term, Second Department, affirmed, finding timely mailing of both sets of scheduling letters, the provider's failure to attend the scheduled EUOs, and the assignor's failure to attend the scheduled IMEs.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50773(U)
Insurer prevailed
The insurer's motion for summary judgment based on full payment under the workers' compensation fee schedule was granted. The claims concerned services rendered before April 1, 2013. The Appellate Term, Second Department, affirmed, finding sufficient proof to presume proper mailing of the denials and to establish proper use of the fee schedule.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50775(U)
Provider prevailed
The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense. The insurer obtained summary judgment dismissing the provider's action for assigned no-fault benefits based on failure to attend duly scheduled EUOs. Its affidavits, however, did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the denial forms. The insurer therefore failed to demonstrate that it was not precluded from asserting its defense. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50777(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint for EUO nonappearance was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in Greenway Med. Supply Corp. v American Tr. Ins. Co., without providing independent analysis of the provider's failure to attend duly scheduled EUOs.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50779(U)
Split result
The insurer failed to establish timely mailing of its denials asserting that the provider's charges exceeded the fee schedule. The claims concerned services rendered before April 1, 2013. The insurer's affidavits did not sufficiently describe an office mailing practice, so it failed to show that its defense was not precluded under 11 NYCRR 65-3.8 (g) (1) (ii). The provider's affidavit also failed to establish untimely or legally insufficient denials. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment and affirmed the denial of the provider's motion.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50780(U)
Provider prevailed
The insurer failed to establish proper IME scheduling because its letters went to an address different from the one on the NF-3 form. The insurer sought summary judgment dismissing the provider's assigned no-fault claims. Its moving papers identified an address for mailing the IME notices that differed from the assignor's address on the submitted claim form. A presumption of receipt requires proof of proper mailing. Copies sent to an attorney did not cure the deficiency because the record did not show that the attorney represented the assignor. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.
Appellate Term, Second Department
May 25, 2018
2018 NY Slip Op 50782(U)
Insurer prevailed
The provider failed to establish as a matter of law that it mailed its bills to the insurer. To obtain summary judgment for assigned no-fault benefits, a provider must show submission of its bills and either nonpayment or failure to deny within 30 days, or a timely denial that is conclusory, vague or legally meritless. Because the provider did not establish mailing, it failed to demonstrate entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.
Appellate Term, Second Department
May 24, 2018
2018 NY Slip Op 50763(U)
Insurer prevailed
The provider's two-month delay after a 90-day demand lacked a justifiable excuse or a showing of a meritorious claim. After receiving a demand under CPLR 3216 (b) (3), the provider neither filed a notice of trial within 90 days under CPLR 3216 (c) nor timely sought vacatur or an extension under CPLR 2004. Its later assertion that the delay was not willful, contumacious or intended to abandon the action supplied no justifiable excuse, and counsel asserted no meritorious cause of action. The Appellate Term, Second Department, reversed the order and granted the insurer's CPLR 3216 motion to dismiss the complaint.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50736(U)
Insurer prevailed
An insurer seeking judgment for EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denials. The Civil Court found timely and proper mailing of EUO letters and denials, and the provider's nonappearances, established under CPLR 3212 (g), but left the provider's prima facie case and the insurer's handling of bills between offices for trial. The record supported those findings despite the provider's challenge. Transmittal of claims between the insurer's offices raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50738(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's complaint for EUO nonappearance was granted. The Appellate Term, Second Department, affirmed that ruling and the denial of the provider's motion for the reasons stated in the companion appeal decided the same day, Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., No. 2016-75 K C.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50730(U)
Provider prevailed
The insurer failed to show that claims involving two accidents and numerous pleaded defenses warranted severance under CPLR 603. The provider sought assigned no-fault benefits for services rendered to two assignors injured in separate accidents. The insurer moved to sever the causes of action, relying on the separate accidents and 48 defenses in its answer. Those facts did not demonstrate that resolving the claims would involve different questions of fact and law. Severance rests in judicial discretion, which should not be disturbed absent prejudice to a substantial right. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, finding no improvident exercise of discretion.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50741(U)
Provider prevailed
The insurer failed to show that the assignor's residence misrepresentation was material to issuance of the policy. The provider appealed from summary judgment dismissing its assigned no-fault claims on that defense. Under Interboro Ins. Co. v Fatmir, materiality requires underwriting documentation, such as manuals, bulletins or rules concerning similar risks, showing that the insurer would not have issued the same policy had accurate information been disclosed. The record did not establish that the insurer would have declined to issue the policy. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50732(U)
Insurer prevailed
The provider's challenge to proof of denial mailing failed, and its remaining argument was raised for the first time on appeal. The insurer obtained summary judgment dismissing an action for assigned no-fault benefits on the ground that the provider failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's argument concerning the insurer's mailing practices and procedures, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It declined to consider the remaining argument because it was unpreserved and affirmed the order in the insurer's favor.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50733(U)
Split result
The insurer's EUO requests were nullities because its initial request was sent more than 30 days after receipt of the claims. In this action for assigned no-fault benefits, the provider sought summary judgment, and the insurer cross-moved to dismiss based on the provider's failure to appear for EUOs. The provider failed to establish that the claims were untimely denied or that timely denials were conclusory, vague, or without merit as a matter of law. The insurer also failed to establish entitlement to dismissal because its EUO requests were late. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving both motions denied.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50735(U)
Provider prevailed
The insurer's CPLR 603 motion to sever claims concerning one assignor from claims concerning two others was denied. The Civil Court denied severance as premature because the insurer had not established different factual and legal questions. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2015-1618 K C.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50737(U)
Insurer prevailed
The provider failed to show compliance with an order requiring an application to the Workers' Compensation Board within 90 days. The insurer sought dismissal on the ground that the assignor was injured during employment. The Civil Court held the action in abeyance and conditionally granted the insurer's cross motion if the provider failed to file proof of an application. On renewal, the insurer noted that the provider instead submitted an authorization to disclose records more than 100 days after the order. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to the conditional ruling because the provider had not demonstrated a proper application under the Workers' Compensation Law.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50739(U)
Split result
The insurer preserved its IME nonappearance defense for one claim but omitted that ground from the denials of three others. The Civil Court had found nonappearance and timely denial mailing established, in effect under CPLR 3212 (g), while leaving IME notice mailing for trial. For the preserved claim, the insurer proved proper mailing of IME notices and the assignor's nonappearance, and the provider did not challenge its entitlement to judgment otherwise. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal of that claim. It remitted the other three branches for determination on the remaining defenses, which the Civil Court had not addressed.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50740(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint based on EUO nonappearance was granted. The Appellate Term, Second Department, affirmed, finding sufficient prima facie proof of the provider's failure to appear for scheduled EUOs and no triable issue raised in response. The provider's remaining contention was rejected as lacking merit.
Appellate Term, Second Department
May 18, 2018
2018 NY Slip Op 50742(U)
Provider prevailed
The insurer's motion for summary judgment based on material misrepresentation of the assignor's residence was denied on appeal. The Appellate Term, Second Department, reversed the dismissal for the reasons stated in the companion appeal decided the same day, Liliya Veksler, LCSW, P.C. v Ameriprise Ins. Co., No. 2016-1448 K C.
Appellate Term, Second Department
May 4, 2018
2018 NY Slip Op 50665(U)
Provider prevailed
The insurer failed to prove mailing of the rescission notice and premium refund needed to establish rescission of its Florida policy. The insurer sought summary judgment dismissing assigned no-fault claims, asserting material misrepresentations about the policyholder's residence and the vehicle's garaging location under Florida Statutes Annotated, title 37, § 627.409. Florida substantive law governed, but New York procedural law controlled. Under Florida law, rescission required notice and return or tender of all premiums within a reasonable time after discovery of the grounds. The insurer established neither actual mailing nor an office practice ensuring proper addressing and mailing of the notice and refund check. The Appellate Term, Second Department, reversed and denied the insurer's motion.
Appellate Term, Second Department
May 4, 2018
2018 NY Slip Op 50663(U)
Insurer prevailed
The provider's appeal from sua sponte tolling of interest was dismissed because the ruling was not appealable as of right. Civil Court denied MVAIC's motion to vacate a default judgment but independently tolled interest for the unexplained delay between inquest and judgment entry. The provider appealed only the tolling provision. The Appellate Term, Second Department, held that the provision did not address relief requested on notice and thus was not appealable under CCA 1702 (a) (2). It declined leave to appeal. The provider had not moved to vacate the sua sponte ruling, which could have produced an appealable denial under CCA 1702 (a) (3).
Trial court, Second Department
May 18, 2018
2018 NY Slip Op 51258(U)
Insurer prevailed
⚠ Modified by Monroe v Omni Indem. Co. (2020 NY Slip Op 50730(U))
The insurer obtained summary judgment based on an unchallenged rescission of a Pennsylvania automobile policy under Pennsylvania law. Applying the grouping-of-contacts analysis, the Civil Court, Kings County, applied Pennsylvania law to the provider's assigned no-fault claim. The insurer's claim examiner established rescission, and mailing the notice complied with Pennsylvania Act 68, § 991.2006. Under § 991.2008, only the insured could challenge termination before the Pennsylvania Insurance Commissioner within 30 days; the insured's failure to do so waived that issue. Following W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., the court declined to assess the validity of the rescission's factual basis or reinstate the policy and granted the insurer's cross motion dismissing the complaint.
Trial court, Second Department
May 17, 2018
2018 NY Slip Op 51408(U)
The insurer's attorney affirmation failed to establish nonappearance on the scheduled EUO date. The Civil Court, Kings County, denied both the provider's motion and the insurer's cross motion for summary judgment. The provider failed to establish that the claims were not denied within 30 days or that timely denials were conclusory, vague or legally meritless under Insurance Law § 5106 (a). The insurer's attorney asserted nonappearance on the day after the rescheduled EUO, rather than on the scheduled date. The attorney also relied on a file review without identifying or producing the documents or identifying their creators, and did not explain the detailed recollection of events approximately seven years earlier. The affirmation was conclusory and lacked probative value.
Trial court, Second Department
May 16, 2018
2018 NY Slip Op 51333(U)
Provider prevailed
The self-insurer failed to establish either proper fee schedule reductions or exhaustion of benefits before receiving the disputed bills. The Civil Court, Kings County, denied summary judgment dismissing the provider's assigned no-fault claims. The adjuster's affidavit inadequately established personal knowledge, contradicted itself about payment, and failed to explain training, applicable codes, or the reductions. Judicial notice of the workers' compensation fee schedule did not establish its proper application. Under 11 NYCRR 65-3.15, payment priority excludes claims awaiting verification, permitting later verified claims to exhaust benefits. But the submitted ledger did not identify when earlier bills were received or paid, and its ambiguous date headings did not prove exhaustion when the disputed bills arrived.
Trial court, Second Department
May 4, 2018
2018 NY Slip Op 50671(U)
Insurer prevailed
The insurer established proper EUO notices, two unexcused nonappearances, and timely denials of the provider's claims. The District Court, Suffolk County, granted summary judgment dismissing the complaint and denied the provider's partial-summary-judgment motion. Standard office practices established mailing of EUO notices and denials within the 30-day period under 11 NYCRR 65-3.8 (a) (1); the provider did not rebut the presumption of receipt. An attorney present to conduct both EUOs established nonappearance. The notices supplied sufficient reasons for the EUOs, and the failure to respond or appear without excuse waived objections to their reasonableness. The provider offered no admissible proof raising a material factual issue under CPLR 3212 (b). The insurer's motion to strike the notice of trial and dismiss for incomplete discovery was denied as academic.
Trial court, Second Department
May 1, 2018
2018 NY Slip Op 28133
Insurer prevailed
A fee schedule defense is not precluded by failure to request an invoice through verification under 11 NYCRR 65-3.8 (g) (1) (ii). The provider obtained an arbitration award for a lumbar-sacral orthosis without proving its supplier invoice cost. Under Insurance Law § 5108 and 11 NYCRR 68.1 (a), the applicable chiropractic fee schedule capped payment at invoice cost, taxes, and shipping and handling. The arbitrator treated the defense as waived, and the master arbitrator upheld the award. The Civil Court, Richmond County, found that the regulation eliminated fee schedule preclusion and that upholding the award would violate the strong public policy against unjust depletion of benefits. It granted the insurer's petition to vacate the master award under CPLR 7511 (b) (1), without prejudice.
