Appellate Division, Second Department
Oct 31, 2018
2018 NY Slip Op 07279
Split result
The claimant retained a cause of action for medical expenses despite assignments because the coverage denial left personal liability. The insurer denied benefits for lack of a causal relationship to the accident. Other providers had billed the claimant, and the denial freed assignee providers to seek payment from the claimant. The Appellate Division, Second Department, modified the order to deny dismissal of the medical-expense claim under CPLR 3211 (a) (7). It affirmed dismissal of lost-wage benefits because no claim was submitted under 11 NYCRR 65-3.8, emotional-distress claims for insufficient conduct and lack of duty, and declaratory relief because an adequate benefits remedy existed. Denial of leave to amend under CPLR 3025 (b) was affirmed because the proposed amendments lacked merit.
Appellate Term, Second Department
Oct 26, 2018
2018 NY Slip Op 51526(U)
Provider prevailed
The insurer's late summary judgment motion was denied because good cause was first offered in reply without an opportunity for surreply. The insurer conceded that it moved more than 120 days after the provider filed the notice of trial. Under CPLR 3212 (a) and Brill v City of New York, a late motion requires leave upon good cause shown. The insurer's moving papers supplied no good cause, and its claimed unawareness of lateness did not permit consideration of an explanation first raised in reply where the provider had no opportunity to submit a surreply. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied the motion.
Appellate Term, Second Department
Oct 12, 2018
2018 NY Slip Op 51448(U)
Insurer prevailed
The self-insurer obtained dismissal based on a later declaratory judgment despite failing to establish timely, proper EUO denials below. The provider failed to establish its entitlement to summary judgment because its proof did not show untimely or legally deficient denials. The self-insurer's cross motion was properly denied on the Civil Court record because it failed to show that its EUO nonappearance defense was not precluded. However, Supreme Court subsequently declared that the self-insurer owed no current or future no-fault claims arising from the accident because of the assignor's EUO nonappearance. Following K.O. Med., P.C. v Mercury Cas. Co., the Appellate Term, Second Department, took judicial notice of that order, reversed the provider's judgment, and awarded the self-insurer summary judgment under CPLR 3212 (b).
Trial court, First Department
Oct 31, 2018
2018 NY Slip Op 28344
Insurer prevailed
The assignor was not an insured under the policy's clause limiting coverage after the named insureds' deaths. At trial, the parties limited the issue to coverage and stipulated to documentary evidence. The Civil Court, Bronx County, dismissed the provider's complaint with prejudice. Giving the policy's unambiguous terms their ordinary meaning, it found coverage limited after the deaths to a surviving spouse or legal representative, with representative coverage confined to responsibility for maintaining or using the covered vehicle. The assignor was neither; the executor was the only insured. Applying the broader family-member clause would nullify that limitation. Alternatively, no evidence established that the assignor was related to the named insureds and resided in their household.
Trial court, Second Department
Oct 18, 2018
2018 NY Slip Op 28325
Insurer prevailed
A default declaratory order specifying the parties' rights has res judicata effect when it remains unvacated. The insurer obtained a Supreme Court order reciting its request for a declaration that the provider was not entitled to no-fault benefits for the collision and granting that relief on default. The Civil Court, Kings County, granted the insurer's motion under CPLR 3211 (a) (5) and dismissed the provider's collection action. Under New York law, an unvacated default judgment is final despite the absence of actual litigation. The order left no ambiguity about the declaration, unlike orders merely granting entry of a default judgment without identifying declaratory relief, or directing settlement of a judgment on notice.
