Appellate Division, Second Department
Feb 20, 2019
2019 NY Slip Op 01247
Insurer prevailed
The insurer's declaratory judgment action survived dismissal because resolving coverage for all providers served judicial economy. A provider had brought two Civil Court actions for unpaid no-fault benefits before the insurer sued in Supreme Court, alleging material misrepresentations about vehicle garaging to obtain a lower premium. The Appellate Division, Second Department, reversed the order granting the provider dismissal under CPLR 3211 (a) (4) and denied that branch of the motion. Although dismissal for another pending action is discretionary when parties and relief substantially coincide, the declaratory action included other providers absent from the Civil Court suits and sought relief Civil Court could not issue. The ruling preserved the coverage action without deciding the alleged misrepresentations.
Appellate Term, First Department
Feb 28, 2019
2019 NY Slip Op 50232(U)
Insurer prevailed
The provider failed to justify submitting its claims to MVAIC more than 45 days after the services were rendered. MVAIC established that it denied the claims as untimely under 11 NYCRR 65-1.1, advised the provider that reasonable justification could excuse the delay under 11 NYCRR 65-3.3 (e), and received no additional materials in response. The provider's cover letters stated that the claims had initially been submitted to other carriers but did not explain why. Nor did the provider show that it submitted all claims within a reasonable time after learning they belonged with MVAIC. The Appellate Term, First Department, reversed the order denying MVAIC's summary judgment motion, granted the motion, and dismissed the complaint.
Appellate Term, Second Department
Feb 22, 2019
2019 NY Slip Op 50226(U)
Insurer prevailed
The assignor failed to establish qualification for MVAIC benefits because the assignor admitted purchasing the car driven in the accident. In the provider's action to recover assigned first-party no-fault benefits, MVAIC sought summary judgment dismissing the complaint. The record showed that the assignor had purchased the vehicle about one week before the accident. Applying Insurance Law § 5202 (b), the Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 22, 2019
2019 NY Slip Op 50225(U)
Insurer prevailed
MVAIC established that the assignor failed to timely file a notice to make claim, defeating the provider's right to seek benefits. The Appellate Term, Second Department, reversed the order denying MVAIC's motion for summary judgment and granted dismissal of the provider's assigned no-fault claims. Without timely filing under Insurance Law § 5208 (a), the assignor was not a covered person under Insurance Law § 5221 (b) (2), and a condition precedent to seeking payment remained unsatisfied. The provider failed to establish that leave to file a late notice had been obtained under Insurance Law § 5208 (c) or otherwise raise a triable issue. The court reached no other issue.
Appellate Term, Second Department
Feb 22, 2019
2019 NY Slip Op 50224(U)
Insurer prevailed
The provider's challenge to the address on the IME scheduling letters was unpreserved because it was first raised on appeal. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault claims for the assignor's failure to appear for duly scheduled IMEs and denied the provider's cross motion. The provider's sole appellate contention concerning the insurer's motion was that the scheduling letters included an apartment number absent from its claim forms. Following Prime Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, declined to consider that contention and affirmed the order.
Appellate Term, First Department
Feb 13, 2019
2019 NY Slip Op 50160(U)
Insurer prevailed
A de novo no-fault action following a master arbitration award exceeding $5,000 may be brought in Civil Court if the dispute does not exceed $25,000. The insurer sought de novo adjudication under Insurance Law § 5106 (c), and the party seeking benefits moved to dismiss the action and for related relief. Applying CCA 212-a, the Appellate Term, First Department, concluded that the action was properly commenced in Civil Court because the amount in dispute fell within that court's monetary jurisdiction. It affirmed the denial of the motion; the remaining appellate argument was rendered academic.
Appellate Term, Second Department
Feb 8, 2019
2019 NY Slip Op 50171(U)
Insurer prevailed
The provider's challenge to the EUO demands failed because it offered no proof of mailing its objection letter. The Civil Court found under CPLR 3212 (g) that the insurer established timely and proper mailing of scheduling letters and denials and the provider's EUO nonappearances, but reserved issues concerning letter generation and the reasonableness of the requests for trial. The provider did not dispute the insurer's prima facie showing and instead relied on an unanswered demand for good-faith reasons. That argument lacked a mailing foundation; moreover, the insurer was not required to disclose its reasons in response to an objection. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 8, 2019
2019 NY Slip Op 50173(U)
Insurer prevailed
The insurer did not waive res judicata by answering before entry of the declaratory judgment on which that defense depended. A default declaratory judgment relieved the insurer of paying benefits to the provider and assignor because the alleged accident was staged and outside coverage. The provider showed no prejudice or surprise from amendment, and the insurer established that the defense had merit. Under CPLR 3025 (b), leave to amend should therefore have been granted. The unvacated default judgment barred recovery that would impair the rights it established. The Appellate Term, Second Department, reversed, granted leave to add res judicata, deemed the amended answer timely served nunc pro tunc, and granted the insurer summary judgment dismissing the complaint.
Trial court, Second Department
Feb 25, 2019
2019 NY Slip Op 50241(U)
Split result
Overdue no-fault benefits continue to accrue interest at two percent per month after entry of judgment. The Supreme Court, Queens County, granted the provider a declaration that the no-fault interest rate continued to apply, with compounding under the regulations applicable when the underlying claims were filed. Under 11 NYCRR 65-3.9 (a) and Gov't Emp. Ins. Co. v Lombino, no-fault interest superseded CPLR 5002, 5003 and 5004, furthering prompt payment through punitive interest. The turnover request was denied because the bank was not joined as required by CPLR 5225 (b). The insurer's cross-petition for dismissal and sanctions was denied.
