Appellate Division, Second Department
Apr 3, 2019
2019 NY Slip Op 02569
Insurer prevailed
The provider's conclusory denial of receiving process failed to support vacatur of the insurers' default declaratory judgment. The Appellate Division, Second Department, affirmed denial of relief under CPLR 317 and 5015 (a) (1). Service through the Secretary of State under Business Corporation Law § 306 was not personal delivery for CPLR 317 purposes, but the provider failed to show lack of timely actual notice. Its principal identified the same office address on file with the Secretary of State, and the insurers supplied proof of mailings there. The affidavit also failed to establish a reasonable excuse, and the CPLR 5015 (a) (1) request came more than one year after service of the judgment with notice of entry. A potentially meritorious defense was not reached.
Appellate Division, First Department
Apr 2, 2019
2019 NY Slip Op 02480
Insurer prevailed
Failure to attend a properly noticed EUO breaches a condition precedent and vitiates no-fault coverage retroactive to the date of loss. The provider's failure to attend scheduled EUOs before the self-insurer received its claim was undisputed. Applying Hertz Corp. v Active Care Med. Supply Corp., Mapfre Ins. Co. of N.Y. v Manoo, and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Division, First Department, concluded that the self-insurer had no obligation to honor the provider's claims. It affirmed the order, insofar as appealed from, granting summary judgment declaring no coverage for the claims allegedly assigned to the provider.
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50633(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50635(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50632(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50634(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50636(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50637(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50638(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50639(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50640(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50641(U)
Split result
The insurer failed to establish mailing of the cancellation notice required to terminate the Pennsylvania policy before the accident. Its underwriting analyst asserted mailing in accordance with office practices without describing them. Evidence of claims-processing mailing procedures did not establish procedures for cancellation correspondence, leaving compliance with 31 Pa. Code § 61.5 unproved. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claim. It affirmed denial of the provider's motion because the provider failed to establish that the claim was denied outside the 30-day period or that a timely denial was conclusory, vague, or legally meritless.
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50642(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50643(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, Second Department
Apr 26, 2019
2019 NY Slip Op 50644(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's assigned no-fault complaint. It relied on the reasons stated in Pavlova v American Ind. Ins. Co..
Appellate Term, First Department
Apr 17, 2019
2019 NY Slip Op 50562(U)
Provider prevailed
The master arbitrator's response to an apparently unsolicited claimant communication did not warrant vacatur for misconduct. The master arbitrator directed the self-represented claimant to serve the communication on the insurer and suggested obtaining legal advice. That measured response did not constitute misconduct under CPLR 7511 (b) (1). The master arbitrator also acted within the scope of review and rationally found factual issues concerning the insurer's compliance with 11 NYCRR 65-3.6 (b) and whether the claimant's failure to attend a scheduled IME was excusable. The Appellate Term, First Department, reversed the order granting the insurer's petition to vacate, denied the petition and reinstated the master arbitrator's award, which had displaced the original award favoring the insurer.
Appellate Term, Second Department
Apr 15, 2019
2019 NY Slip Op 50600(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted on appeal. The Appellate Term, Second Department, reversed the order denying that motion for the reasons stated in the companion appeal decided the same day, No. 2017-9 K C. The court also recalled and vacated its prior decision and order.
Appellate Term, Second Department
Apr 15, 2019
2019 NY Slip Op 50601(U)
Insurer prevailed
The assignor did not qualify as an eligible injured person because the assignor did not reside with the Florida policyholder. The provider sought assigned no-fault benefits and cross-moved for summary judgment, asserting that it had established its prima facie case. The insurer established that the assignor lived in Brooklyn rather than in the policyholder's household and therefore was not a family member as defined by the Florida policy. The provider raised no triable issue of fact. The Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Apr 12, 2019
2019 NY Slip Op 50576(U)
Insurer prevailed
A provider's opinion that requested invoices are unnecessary does not reasonably justify failing to supply verification. The provider did not respond to verification requests for one claim. For another, it asserted that invoices were unnecessary under its interpretation of reimbursement rules, but neither supplied them nor stated that they were outside its possession or control. That response was insufficient under 11 NYCRR 65-3.8 (b) (3). The insurer properly denied both claims after 120 days without the requested verification under 11 NYCRR 65-3.5 (o) and 65-3.8 (b) (3). Although dismissal with prejudice was warranted, the Appellate Term, Second Department, affirmed dismissal as premature because the insurer had not cross-appealed.
Appellate Term, Second Department
Apr 12, 2019
2019 NY Slip Op 50572(U)
Insurer prevailed
The insurer's IME report established that the assignor's injuries had resolved and that the disputed services lacked medical necessity. The provider appealed the grant of summary judgment dismissing seven claims denied on medical necessity grounds. The insurer's mailing proof supported a presumption that the denials were timely mailed. Its affirmed IME report supplied a factual basis and medical rationale for finding the services unnecessary, and the provider failed to rebut that showing. The provider's remaining arguments were raised for the first time on appeal and, in any event, lacked merit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Apr 12, 2019
2019 NY Slip Op 50574(U)
Insurer prevailed
An insurer may use the chiropractic acupuncture fee schedule to determine reimbursement for acupuncture performed by a licensed acupuncturist. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, affirmed dismissal after a nonjury trial. The case was consolidated for trial with GL Acupuncture, P.C. v Progressive Ins. Co., the companion appeal decided the same day, No. 2017-303 K C. The Civil Court took judicial notice of the workers' compensation chiropractic fee schedule, and the provider's attorney agreed that the insurer's certified medical coder would testify to applying that schedule. The insurer established full payment under the applicable schedule, and the provider failed to rebut that showing.
Appellate Term, Second Department
Apr 12, 2019
2019 NY Slip Op 50575(U)
Insurer prevailed
The insurer established full payment for acupuncture billed under CPT codes 97810 and 97811 using the chiropractic fee schedule. At a nonjury trial, the Civil Court took judicial notice of that schedule and credited the insurer's certified coder's explanation of the payments. The provider, which sought reimbursement for services performed by a licensed acupuncturist, offered no rebuttal witness. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld the finding of full payment under the workers' compensation fee schedule for acupuncture performed by chiropractors. It affirmed the judgment awarding the provider payment only for the office visit billed under CPT code 99203, rejecting the provider's inadequacy appeal.
Trial court, Second Department
Apr 19, 2019
2019 NY Slip Op 50589(U)
Insurer prevailed
An insurer's disclaimer of coverage for indemnification, contribution and breach-of-contract claims is governed by common-law waiver and estoppel. The Supreme Court, Suffolk County, denied the State's and insured contractor's summary judgment motions without prejudice to renewal on a more complete record, leaving the insurer's declaratory judgment action pending. Following Preserver Ins. Co. v Ryba and KeySpan Gas E. Corp. v Munich Reins. Am., Inc., the court stated that Insurance Law § 3420 (d) (2) does not apply to such claims, while leaving the timeliness and waiver questions for trial. Despite notice of the worksite accident, the contractor did not forward the pleadings in the State's indemnification action. Factual disputes remained over the insurer's knowledge and disclaimer, waiver or estoppel, and noncooperation, with discovery incomplete; the policy-exclusion grounds remained undecided.
Trial court, Second Department
Apr 15, 2019
2019 NY Slip Op 50590(U)
Insurer prevailed
MVAIC's failure to timely deny a claim does not excuse failure to file the notice required as a condition precedent to coverage. The Civil Court, Kings County, granted MVAIC's motion for summary judgment and denied the provider's cross motion. MVAIC's qualifications examiner established that the provider did not respond to two requests to file a notice of intent to make claim and supply related information. Insurance Law § 5208 (a) required timely notice before seeking payment, and noncompliance prevented covered-person status under Insurance Law § 5221 (b) (2). As assignee, the provider acquired no greater rights than the assignor. The provider raised no triable issue, and its reliance on the 30-day payment-or-denial requirement did not defeat the lack-of-coverage defense.
Trial court, Second Department
Apr 9, 2019
2019 NY Slip Op 50523(U)
Provider prevailed
The insurer's EUO transcripts raised factual issues about material misrepresentations, defeating summary judgment based on rescission. The Civil Court, Kings County, applied Pennsylvania law because the policy's relevant contacts centered there, with the accident supplying the New York connection. Pennsylvania permitted retroactive rescission for material misrepresentation, unlike New York under Vehicle and Traffic Law § 313. Nevertheless, the insurer's transcripts left unresolved the insured's domicile and the vehicle's garaging when the policy was procured. The insurer supplied no other admissible evidence establishing nonresidency. The court denied its CPLR 3212 motion and granted the provider's cross motion only to the extent of establishing timely mailing of the required billing forms and that benefits were overdue.
Trial court, First Department
Apr 9, 2019
2019 NY Slip Op 29102
Provider prevailed
An IME no-show coverage defense qualifies as a policy issue for hourly attorney fees under 11 NYCRR 65-4.6 (c). After the provider obtained judgment for assigned no-fault benefits, the Civil Court, New York County, awarded $695 in attorney fees following a hearing. The insurer had designated its IME defense as a policy issue on the denial form; under Unitrin, an IME no-show breaches a coverage condition. Counsel's lack of contemporaneous time records and evidence of other cases handled on appearance dates warranted reduced compensable time. The award covered three hours of court appearances and 6.5 hours of preparation. Earlier appearances lacked adequate proof, and Insurance Law § 5106 (a) did not permit fees for substantiating the fee claim.
Trial court, Second Department
Apr 3, 2019
2019 NY Slip Op 50543(U)
Split result
A provider's deficient discovery responses did not warrant dismissal absent a clear showing of willful or contumacious noncompliance. The Civil Court, Queens County, granted reargument under CPLR 2221 (d), denied dismissal, struck the notice of trial because an ordered EUO remained outstanding, and compelled clarified responses and available mailing proof under CPLR 3101 (a). The EUO was not conditioned on prior discovery responses; the insurer faced waiver for missing the court's deadline. The request to stay interest under 11 NYCRR 65-3.9 (d) and Insurance Law § 5106 (a) was denied as premature because overdue benefits and responsibility for delay remained undetermined, with renewal permitted. The attorney-substitution argument first raised in reply was not decided.
Trial court, Second Department
Apr 1, 2019
2019 NY Slip Op 50467(U)
Insurer prevailed
The provider failed to justify vacating an abandonment dismissal with a reasonable excuse and an affidavit of merit. The Civil Court, Kings County, denied the provider's motion to vacate an administrative dismissal under CPLR 3215 (c) and dismissed the complaint with prejudice. The provider served process more than two years after the 120-day service period expired, never sought an extension, and failed to timely pursue a default judgment. CPLR 3215 (c) permitted dismissal on the court's own initiative without prior notice. Although CPLR 2005 permits acceptance of law office failure, the provider's explanation involving computer-system changes was vague, conclusory and unsubstantiated, and no affidavit of merit was submitted.
