Trial court, First Department
Aug 14, 2018
2018 NY Slip Op 51210(U)
Insurer prevailed
The insurer established a founded belief that the claimed injuries did not arise from an insured incident. The Supreme Court, New York County, granted its motion for a default judgment against the remaining defaulting providers in a declaratory judgment action. Under CPLR 3215 (f), the insurer supplied proof of service, default, and the facts constituting its claim. A claims representative's affidavit described video evidence contradicting the injured claimants' statements that the insured vehicle knocked them down. This supported a founded belief that the claims were fraudulent without requiring proof of every element of fraud. The providers took their assignments subject to defenses against the assignors. The injured claimants' opposition neither addressed entitlement to judgment against the providers nor excused their defaults.
Trial court, First Department
Aug 14, 2018
2018 NY Slip Op 51207(U)
Insurer prevailed
The insurer's evidence of an intentional collision supported a preliminary injunction against related no-fault proceedings. The Supreme Court, New York County, granted an injunction with an undertaking under CPLR 6301, a default judgment against nonappearing defendants, and dismissal of answering providers' attorney-fee counterclaim under CPLR 3211 (a) (7). Conflicting EUO testimony and an investigator's affidavit supported likely success; avoiding repetitive litigation and inconsistent determinations established irreparable harm and favorable equities. Unsigned EUO transcripts were admissible because the witnesses received them for review with sufficient time to respond. The providers, as assignees, were subject to defenses against their assignors. The insurer owed them no duty to defend, and Insurance Law § 5106 (a), Insurance Law § 5102 (b), and 11 NYCRR 65-4.6 did not authorize fees in this declaratory judgment action.
Trial court, First Department
Aug 6, 2018
2018 NY Slip Op 51177(U)
Split result
The insurers failed to show that EUOs were reasonably required for the provider's claims involving thirteen assignors. The Supreme Court, New York County, denied summary judgment in the insurers' declaratory judgment action. Although mailing proof was sufficient, the investigator's affidavit did not identify facts justifying EUOs for the specific claims, as required by 11 NYCRR 65-3.5 (e). Its references to licensing concerns and treatment patterns did not identify relevant records, services, injuries, or accidents. Discovery into the reasons for requesting EUOs was warranted. The court compelled responses to discovery demands but denied the provider's requests for sanctions under CPLR 3126 (1) and (3) and severance under CPLR 603. The provider failed to show that separate actions would promote convenience or avoid prejudice.
