Appellate Division, First Department
Jun 28, 2018
2018 NY Slip Op 04854
Split result
The insurer failed to prove timely EUO requests for default relief against providers but established one claimant's failure to sign an EUO. The motion omitted receipt dates for the providers' verification forms and another claimant's application, preventing assessment of the 15-business-day deadline under 11 NYCRR 65-3.5 (a) and (b). Arguments treating bills as prescribed forms and linking different defendants' deadlines were unpreserved and unsupported. For the claimant who did not sign, letters forwarding the transcript and following up, with service affidavits, supplied proof under CPLR 3215 (f); failure to subscribe violated 11 NYCRR 65-2.4 (c) (2). The Appellate Division, First Department, modified the order to grant a default declaration of no coverage against that claimant and otherwise affirmed denial with leave to renew.
Appellate Division, Second Department
Jun 13, 2018
2018 NY Slip Op 04328
Insurer prevailed
The SUM award denying benefits for lack of accident-related causation was rational, supported by evidence, and not arbitrary or capricious. The Appellate Division, Second Department, affirmed denial of the injured claimant's CPLR article 75 petition to vacate the award, leaving the insurer's denial intact. After settling the liability action for the other driver's policy limit, the claimant sought SUM benefits under the claimant's own policy. Medical records, IME reports, and peer reviews were submitted at arbitration. The claimant argued that prior no-fault payments precluded the insurer from disputing causation. Under CPLR 7511 (b) (1) (iii) and Matter of Falzone, the asserted failure to apply preclusion was, at most, an error of law insufficient to warrant vacatur.
Appellate Division, Fourth Department
Jun 8, 2018
2018 NY Slip Op 04122
Provider prevailed
A master arbitrator may vacate a no-fault award for substantive legal error without conducting de novo factual review. The Appellate Division, Fourth Department, affirmed denial of the insurers' CPLR article 75 petition to vacate master arbitration awards favorable to the provider. The provider withheld equipment acquisition costs and pricing information, invoking proprietary information and its asserted reimbursement basis. The master arbitrator vacated 14 claim-denial awards and ordered new hearings for misapplication of 11 NYCRR 65-3.8 (b) (3). The master arbitrator reasoned that a timely reasonable justification must be adjudicated and, if rejected, followed by an opportunity to supply verification. That review addressed substantive law within the master arbitrator's authority, rather than reconsidering evidence de novo.
Appellate Division, First Department
Jun 5, 2018
2018 NY Slip Op 03929
Provider prevailed
The insurer's Mallela challenge failed because it presented no evidence that the provider was fraudulently incorporated. The Appellate Division, First Department, affirmed the judgment awarding reimbursement and dismissed the superseded judgment's appeal. Although the arbitrator required clear and convincing proof and the insurer urged a preponderance standard, vacatur was unwarranted under either standard. The court rejected the argument that insufficient explanation prevented meaningful review and found the master arbitrator's affirmance rational. Under 11 NYCRR 65-4.10 (j) (4), the court adjudicating an appeal from a master arbitration award fixes appellate attorney fees. The matter was remanded to Supreme Court to determine the provider's reasonable appellate fees, and the court declined to follow Valdan Acupuncture's different fee-calculation approach.
Appellate Term, Second Department
Jun 29, 2018
2018 NY Slip Op 51057(U)
Provider prevailed
The insurer failed to establish that it would not have issued the same policy had accurate residence and garaging information been disclosed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment cross motion. The insurer did not establish materiality of the assignor's alleged misrepresentations. It also failed to articulate a sufficient basis to strike CPLR 3212 (g) findings establishing bill mailing, nonpayment and timely denial. A default order against the assignor did not collaterally estop the provider: the provider was not named in that action and was not in privity with the assignor. The policy-procurement defense remained for trial, and the court reached no other issue.
Appellate Term, Second Department
Jun 29, 2018
2018 NY Slip Op 51061(U)
Insurer prevailed
The insured's EUO testimony and affidavit established that the alleged injury did not arise from an insured incident. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The insured stated that no accident occurred while the vehicle was being parked and that the provider's assignor, a pedestrian, had not been struck by the vehicle. That evidence established the insurer's prima facie lack-of-coverage defense under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider opposed the motion only with counsel's affirmation, without an assertion of personal knowledge, and therefore failed to raise a triable factual issue.
Appellate Term, First Department
Jun 28, 2018
2018 NY Slip Op 51014(U)
Insurer prevailed
The insurer established the assignor's EUO nonappearances through an employee affidavit demonstrating personal knowledge. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the provider's no-fault action and denying the provider's cross motion. The employee responsible for scheduling EUOs supplied sufficient facts establishing personal knowledge of the assignor's failure to appear at two scheduled EUOs. The insurer also established timely and proper mailing of the notices. The provider did not specifically deny the nonappearances or raise a triable issue concerning them, the mailing, or the reasonableness of the notices.
Appellate Term, Second Department
Jun 22, 2018
2018 NY Slip Op 51006(U)
Provider prevailed
The insurer failed to establish collateral estoppel or valid policy cancellation in support of its lack-of-coverage defense. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the provider's no-fault action and denied the motion. Two prior orders finding cancellation did not identify the accident date, and the insurer supplied neither the complaints nor the underlying motion papers. The provider was not a party to either prior action. The submissions therefore failed to establish that the same issue had been litigated and decided. Independently, the insurer failed to prove mailing of the cancellation letter under Vehicle and Traffic Law § 313 (1) (a) or Connecticut General Statutes § 38a-343 (a).
Appellate Term, Second Department
Jun 22, 2018
2018 NY Slip Op 51005(U)
Insurer prevailed
The insurer's unrebutted peer review established lack of medical necessity, and the provider's discovery inaction did not defeat summary judgment. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the assigned no-fault claim. The insurer established timely mailing of its denial and submitted an affirmed neurologist's peer review setting forth a factual basis and medical rationale for finding the services unnecessary. The provider had ample opportunity to compel discovery or investigate before moving for summary judgment, so its failure to do so did not warrant denial of the cross motion or a continuance.
Appellate Term, First Department
Jun 18, 2018
2018 NY Slip Op 50913(U)
Insurer prevailed
The insurer established that needle reinsertion services were not performed and that the provider's remaining claims were premature. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's no-fault complaint. The insurer timely and properly denied the reinsertion claims based on the assignor's sworn statement denying receipt of those services. The provider's opposition, essentially an attorney affirmation, failed to raise a factual issue. As to the remaining claims, the provider's incomplete response to verification was undisputed. The 30-day period to pay or deny therefore had not begun, and those claims were not overdue.
Appellate Term, Second Department
Jun 15, 2018
2018 NY Slip Op 50943(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over a Pennsylvania insurer through counsel's unsupported affirmation. The Appellate Term, Second Department, reversed the order denying the insurer's motion under CPLR 3211 (a) (8) and granted dismissal of the assigned no-fault action. Employee affidavits established that the insurer was not licensed in New York and had no offices, agents, soliciting representatives, or real property there. Although a provider opposing a jurisdictional dismissal need only make a prima facie showing of jurisdiction, counsel did not establish personal knowledge supporting assertions about policies issued to New York drivers or relationships with New York defense counsel. The affirmation failed to establish jurisdiction under CCA 404 (a).
Appellate Term, Second Department
Jun 15, 2018
2018 NY Slip Op 50940(U)
Insurer prevailed
The insurer's evidence raised an employment-related coverage issue requiring an initial Workers' Compensation Board determination. The Appellate Term, Second Department, reversed the order denying a stay and granting the provider summary judgment, and held the action in abeyance pending a prompt Board application. The Board had primary jurisdiction to determine whether workers' compensation benefits were available. The provider's Workers' Compensation Law § 28 timeliness argument was unavailing, particularly because the insurer established an undisputed timely employment-based denial. If the provider failed to file proof of a Board application within 90 days of the appellate decision, the Civil Court was directed to grant the insurer summary judgment dismissing the complaint and deny the provider's cross motion unless the provider showed good cause against dismissal.
Appellate Term, Second Department
Jun 15, 2018
2018 NY Slip Op 50941(U)
Insurer prevailed
The insurer raised a factual issue whether it timely and properly denied the claim based on the assignor's alleged intoxication. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of summary judgment to the provider, and denied that motion. The insurer alleged that the assignor's intoxication while operating the vehicle proximately caused the accident. Under CPLR 5501 (c), the appeal from the summary judgment order was deemed taken from the ensuing judgment. The insurer's cross motion for summary judgment dismissing the complaint remained denied.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50863(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50864(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for EUO nonappearance. In this assigned no-fault action, the insurer's proof raised a presumption that the EUO scheduling letters and denial form were timely mailed and established the provider's nonappearance. Under Interboro Ins. Co. v Clennon, the insurer needed to show that it twice duly demanded EUOs, the provider failed to appear, and the claim was timely denied. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50865(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50866(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50867(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50868(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50869(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50870(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50871(U)
Insurer prevailed
The insurer's cross motion to dismiss the first four causes of action on summary judgment for EUO nonappearance was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion on those claims and granting the insurer's cross motion, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50872(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50873(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50874(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50875(U)
Split result
The provider's first cause of action was improperly dismissed for EUO nonappearance when the insurer sought dismissal for lack of medical necessity. The Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion on EUO grounds. The Appellate Term, Second Department, modified the order by vacating dismissal of the first cause of action and remitting that branch for a new determination because the Civil Court had not addressed the medical necessity defense. Dismissal of the second cause of action for EUO nonappearance was affirmed for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C. The denial of the provider's motion remained undisturbed.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50876(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50877(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50878(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for scheduled EUOs was granted. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50879(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50880(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50881(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50882(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50883(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50884(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 8, 2018
2018 NY Slip Op 50885(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint on an EUO nonappearance defense was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that cross motion and denying the provider's motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-1996 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50838(U)
Split result
A provider's unreasonable delay in prosecuting a no-fault action tolls statutory prejudgment interest. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (c), interest begins at commencement if suit is not brought within 30 days after receipt of a denial; 11 NYCRR 65-3.9 (d) permits tolling for unreasonable litigation delay. The provider took no meaningful action after commencing suit in 2002 until serving a motion to compel discovery on January 23, 2014. The Appellate Term, Second Department, upheld tolling but modified the order granting the insurer's posttrial motion to allow interest from that discovery motion, rather than the December 18, 2014 notice of trial, and otherwise affirmed.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50842(U)
Split result
The insurer failed to prove timely mailing of denials supporting its fee schedule defense for services rendered before April 1, 2013. Its affidavits inadequately described an office mailing practice, leaving it unable to establish that the defense was not precluded; the court compared 11 NYCRR 65-3.8 (g) (1) (ii). The provider failed to establish untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to the fourth through sixth causes of action and the disputed portion of the third. It affirmed denial of the provider's motion on those claims and the first and second causes of action.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50843(U)
Insurer prevailed
The insurer's cross motion for summary judgment was granted on the ground that it had issued no policy covering the loss. The Appellate Term, Second Department, found the insurer's proof sufficient and affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50834(U)
Insurer prevailed
The self-insurer's summary judgment dismissal for the assignor's IME nonappearance was affirmed on mailing and nonappearance proof. The Appellate Term, Second Department, found proper mailing of the IME scheduling letters and the assignor's nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., respectively.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50826(U)
Insurer prevailed
The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal. The provider sought summary judgment for assigned no-fault benefits, while the self-insurer cross-moved to dismiss based on the provider's failure to attend duly scheduled EUOs. Citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the appellate court rejected the mailing challenge and declined to consider the unpreserved argument. The Appellate Term, Second Department, affirmed the denial of the provider's motion and the grant of the self-insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50823(U)
Insurer prevailed
The self-insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed on proof of timely denial mailing. The Appellate Term, Second Department, rejected the provider's sole appellate contention, finding that timely mailing was established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50818(U)
Insurer prevailed
A provider that fails to timely object to discovery demands must respond unless the demands are privileged or palpably improper. In this action for assigned no-fault benefits, the provider challenged an order striking its notice of trial and compelling verified responses and documents concerning the insurer's Mallela defense. The provider had not timely challenged the demands under CPLR 3122 (a). Although demands concerning a precluded defense may be palpably improper, the fraudulent incorporation defense at issue was not precludable. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the insurer entitled to the specified discovery.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50817(U)
Insurer prevailed
The insurer's proof established the provider's EUO nonappearances, and the provider's remaining argument was raised for the first time on appeal. The provider appealed from summary judgment dismissing its action for assigned no-fault benefits based on failure to attend duly scheduled EUOs. The Appellate Term, Second Department, found the insurer's proof sufficient and declined to consider the newly raised contention because it was not properly before the court. The order granting the insurer's motion was affirmed.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50820(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 established timely mailing of the EUO scheduling letters and the provider's failure to appear for the duly scheduled EUOs.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50821(U)
Insurer prevailed
The insurer established the provider's EUO nonappearances through an affirmation from the attorney present to conduct the EUOs. The provider challenged the sufficiency of the affirmation in its action for assigned no-fault benefits. The attorney's affirmation of presence in the office to conduct the EUOs on the scheduled dates sufficiently established nonappearance, and the insurer's affidavits established timely mailing of the denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the second, fourth and fifth causes of action.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50822(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50824(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50825(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50827(U)
Provider prevailed
The insurer's cross motion for summary judgment dismissing the fourth cause of action for lack of medical necessity was denied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, agreeing on review of the record that a triable issue existed concerning the medical necessity of the services.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50828(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50829(U)
Split result
The insurer failed to prove timely mailing of its fee-schedule denial covering the provider's second through fifth causes of action. Those claims concerned services rendered before April 1, 2013. The mailing affidavits did not sufficiently describe a standard office practice, so the insurer did not establish that its defense was not precluded under 11 NYCRR 65-3.8 (g) (1) (ii). The provider's affidavit likewise failed to establish untimely or legally insufficient denials. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to those causes of action, while affirming the denial of the provider's motion as to them.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50830(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, leaving it unable to show that its defense was not precluded under 11 NYCRR 65-3.8 (g) (1) (ii). The provider 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
Jun 1, 2018
2018 NY Slip Op 50831(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault benefits complaint was granted. The Appellate Term, Second Department, affirmed the order granting that motion and denying the provider's cross motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50832(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault benefits complaint was granted. The Appellate Term, Second Department, affirmed the order granting that motion and denying the provider's cross motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2015-2178 K C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50835(U)
Provider prevailed
The insurer failed to establish timely mailing of denials supporting its defense that the assignor missed scheduled IMEs. The insurer sought summary judgment dismissing the first through fourth causes of action in an assigned no-fault benefits action. Its affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the denial forms. Consequently, it failed to demonstrate that the IME nonappearance defense was not precluded. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment dismissing those four causes of action.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50837(U)
Insurer prevailed
The insurer established proper mailing of the EUO scheduling letters and denial form and the provider's failure to appear for EUOs. In this assigned no-fault action, the provider challenged both the mailing proof and the proof of nonappearance. The insurer's submissions raised a mailing presumption and established the missed appearances; the provider's remaining contentions were rejected as meritless. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment and granting the insurer's cross motion dismissing the complaint on EUO nonappearance grounds.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50839(U)
Split result
No-fault prejudgment interest tolled for the provider's prosecution delay was allowed to accrue earlier on appeal. The Appellate Term, Second Department, modified the order granting the insurer's posttrial motion to toll interest, permitting accrual from January 23, 2014, rather than December 18, 2014, and otherwise affirmed. It relied on Vitality Chiropractic, P.C. v Countrywide Ins., the companion appeal decided the same day, No. 2015-2906 Q C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50840(U)
Split result
No-fault prejudgment interest tolled for the provider's prosecution delay was allowed to accrue earlier on appeal. The Appellate Term, Second Department, modified the order granting the insurer's posttrial motion to toll interest, permitting accrual from January 23, 2014, rather than December 18, 2014, and otherwise affirmed. It relied on Vitality Chiropractic, P.C. v Countrywide Ins., the companion appeal decided the same day, No. 2015-2906 Q C.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50841(U)
Provider prevailed
The insurer failed to establish timely mailing of the denial supporting its fee schedule defense for services rendered before April 1, 2013. Its affidavits did not sufficiently describe an office practice or procedure ensuring timely mailing. The insurer therefore failed to demonstrate that it was not precluded from asserting that the claimed charges exceeded the workers' compensation fee schedule, with the court comparing 11 NYCRR 65-3.8 (g) (1) (ii). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50845(U)
Insurer prevailed
The insurer's proof raised a presumption that the EUO scheduling letters and denial forms were properly mailed. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss for the provider's failure to appear for duly scheduled EUOs. Rejecting the provider's challenge to the mailing proof under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50847(U)
Split result
The provider's mailing affidavit raised a factual issue over whether the insurer received requested verification and the action was premature. The insurer established prima facie that it properly mailed verification requests and did not receive the requested material. The provider's affidavit, however, raised a presumption that the verification had been mailed to and received by the insurer. That conflicting proof required denial of summary judgment on the prematurity defense. The Appellate Term, Second Department, modified the order to deny the insurer's motion dismissing the complaint and otherwise affirmed, leaving the denial of the provider's cross motion for summary judgment in place.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50848(U)
Split result
The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses. Its affidavits did not sufficiently describe an office mailing practice ensuring timely mailing. It therefore failed to show that those defenses were not precluded; the fee schedule claim concerned services rendered before April 1, 2013, with the court comparing 11 NYCRR 65-3.8 (g) (1) (ii). The provider also failed to establish that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing all ten causes of action and affirmed the denial of the provider's summary judgment motion.
Appellate Term, Second Department
Jun 1, 2018
2018 NY Slip Op 50849(U)
Split result
No-fault prejudgment interest tolled for the provider's prosecution delay was allowed to accrue earlier on appeal. The Appellate Term, Second Department, modified the order granting the insurer's posttrial motion to toll interest, permitting accrual from January 23, 2014, rather than December 18, 2014, and otherwise affirmed. It relied on the companion appeal decided the same day, No. 2015-2906 Q C.
Trial court, Second Department
Jun 29, 2018
2018 NY Slip Op 51018(U)
An insured's negligent wave from a stopped vehicle was independent of vehicle use and fell within homeowners coverage. The Supreme Court, Putnam County, resolved summary judgment motions following a wrongful-death verdict, requiring the homeowners insurer to defend and indemnify while granting the automobile insurer summary judgment declaring no coverage. Vehicle and Traffic Law § 388 did not apply because the vehicle merely supplied the wave's location. Under CPLR 3001 and Insurance Law § 3420, the estate could seek declaratory relief concerning defense and indemnification. The insured could recover defense-related attorney fees under Mighty Midgets; the estate could not. Factual disputes prevented summary judgment on bad faith beyond the coverage denial itself. A default judgment against the vehicle owner was granted; the court did not reach disclaimer sufficiency.
Trial court, First Department
Jun 15, 2018
2018 NY Slip Op 51025(U)
Insurer prevailed
The insurer proved timely mailing of IME notices and the assignor's failure to appear at two scheduled IMEs. The Supreme Court, Bronx County, granted summary judgment declaring the provider not entitled to coverage and permanently stayed related Civil Court matters and no-fault arbitrations. A claims examiner's affidavit established that the first IME was scheduled within 30 days after receipt of the first bill, satisfying 11 NYCRR 65-3.5 (d). Office-procedure evidence and signed, date-stamped postal ledgers established mailing to the address on the no-fault application. The physician's presence on both dates and the office practice of recording nonappearances established the missed IMEs. Under 11 NYCRR 65-1.1, nonappearance breached a condition precedent and permitted denial of coverage retroactive to the date of loss.
