Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50094(U)
Split result
The insurer proved an IME nonappearance defense to three of seven claims, reducing the provider's recovery after trial. The provider established its prima facie case on all seven claims by showing that the insurer received the bills and had not paid them. For three claims, however, the insurer's trial proof established timely mailing of the IME scheduling letters and denials and the assignor's failure to appear. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., those nonappearances violated a condition precedent to coverage and defeated recovery on those bills. The Appellate Term, Second Department, modified the judgment to exclude the three claims, otherwise affirmed, and remitted for recalculation of statutory interest and entry of an amended judgment.
Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50095(U)
The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial. The action for assigned no-fault benefits was consolidated for trial with five other actions. After receiving testimony only in the first action, the Civil Court found for the provider in this action and entered judgment. The Appellate Term, Second Department, agreed with the insurer that the absence of testimony concerning this action required reversal. It remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50096(U)
The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial. The action for assigned no-fault benefits was consolidated for trial with five other actions. After receiving testimony only in the first action, the Civil Court found for the provider in this action and entered judgment. The Appellate Term, Second Department, agreed with the insurer that the absence of testimony concerning this action required reversal. It remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50097(U)
The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial. The action for assigned no-fault benefits was consolidated for trial with five other actions. After receiving testimony only in the first action, the Civil Court found for the provider in this action and entered judgment. The Appellate Term, Second Department, agreed with the insurer that the absence of testimony concerning this action required reversal. It remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50098(U)
The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial. The action for assigned no-fault benefits was consolidated for trial with five other actions. After receiving testimony only in the first action, the Civil Court found for the provider in this action and entered judgment. The Appellate Term, Second Department, agreed with the insurer that the absence of testimony concerning this action required reversal. It remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jan 18, 2019
2019 NY Slip Op 50099(U)
The provider's judgment was reversed because no testimony was taken in its action at the consolidated nonjury trial. The action for assigned no-fault benefits was consolidated for trial with five other actions. After receiving testimony only in the first action, the Civil Court found for the provider in this action and entered judgment. The Appellate Term, Second Department, agreed with the insurer that the absence of testimony concerning this action required reversal. It remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jan 17, 2019
2019 NY Slip Op 50085(U)
Insurer prevailed
The provider failed to justify its 37-day delay in responding to the insurer's 90-day demand under CPLR 3216. A provider receiving such a demand must file a notice of trial within 90 days under CPLR 3216 (c), or timely seek vacatur of the demand or an extension under CPLR 2004. Having done none of those things, the provider had to establish both a justifiable excuse and a meritorious cause of action in opposing dismissal. Counsel's bare assertion that the delay was neither willful nor contumacious and did not reflect abandonment supplied no justifiable excuse. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss the complaint.
Appellate Term, Second Department
Jan 17, 2019
2019 NY Slip Op 50086(U)
Insurer prevailed
The insurer's motion to dismiss under CPLR 3216 for failure to serve a notice of trial after a 90-day demand was granted on appeal. The Appellate Term, Second Department, reversed the denial of dismissal for the reasons stated in Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co., the companion appeal decided the same day, No. 2017-1131 N C.
Appellate Term, Second Department
Jan 17, 2019
2019 NY Slip Op 50087(U)
Insurer prevailed
The insurer's motion to dismiss under CPLR 3216 for failure to serve a notice of trial after a 90-day demand was granted on appeal. The Appellate Term, Second Department, reversed the denial of dismissal for the reasons stated in Schottenstein Pain & Neuro, PLLC v GEICO Ins. Co., the companion appeal decided the same day, No. 2017-1131 N C.
Appellate Term, Second Department
Jan 11, 2019
2019 NY Slip Op 29019
Insurer prevailed
MVAIC proved potential insurance coverage under the parties' stipulation, and the provider failed to show exhaustion of its remedies. At a nonjury trial, Civil Court excluded a policy apparently issued to the assignor's son at the same address because the New York Liquidation Bureau witness could not establish a business-record foundation under CPLR 4518. The Appellate Term, Second Department, found the records admissible because the bureau incorporated and relied on them in administering claims. The stipulation required proof of potential coverage, not actual coverage at the time of the accident. The provider had to exhaust remedies against all potential carriers. The judgment was reversed, and the matter was remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Jan 8, 2019
2019 NY Slip Op 51247(U)
Insurer prevailed
MVAIC's motion for summary judgment dismissing the provider's assigned no-fault claims 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. 2017-387 K C, without giving independent reasoning.
Appellate Term, Second Department
Jan 4, 2019
2019 NY Slip Op 50056(U)
Provider prevailed
The insurer's conclusory denial of service failed to rebut the process server's affidavit or excuse its default. The affidavit established service under CPLR 311 (a) (1) on an employee known to be authorized to accept process at the insurer's office. The insurer supplied no affidavit from that employee, and its claim representative's denial lacked sufficient detail. The insurer also failed to explain its 11-month delay in seeking vacatur. The Appellate Term, Second Department, reversed and denied vacatur under CPLR 5015 (a) (1) and (4) and the request to compel acceptance of the answer. It remitted for determination of the remaining alternative requests, including modification of the judgment for allegedly incorrect interest.
Trial court, Second Department
Jan 2, 2019
2019 NY Slip Op 50016(U)
Provider prevailed
The insurer's EUO nonappearance defense was precluded by a denial issued more than 30 days after the last scheduled EUO. The Civil Court, Kings County, denied summary judgment to the insurer and granted summary judgment to the provider. Under 11 NYCRR 65-3.8 (a) (1), the insurer had 30 days after the last scheduled EUO to pay or deny the claims. Its alternative staged-collision defense also failed: vague and sometimes inconsistent EUO testimony did not establish a founded belief that the collision was intentional. The insurer submitted no investigator's affidavit explaining the inconsistencies or cogent investigative summary, and the transcripts alone raised no triable issue. The provider established its prima facie case through an employee's affidavit and the annexed bills.
