Appellate Division, Second Department
Jul 24, 2019
2019 NY Slip Op 05778
The loss-transfer award was upheld because its legal interpretation had a reasonable basis and did not contradict settled law. The petitioning insurer sought reimbursement under Insurance Law § 5105 for benefits paid after a collision. The opposing insurer disputed payments for New Jersey services on fee-schedule grounds. The arbitrator found the opposing insurer's insured entirely at fault and all claimed damages proved. The Appellate Division, Second Department, affirmed confirmation under CPLR article 75 in the petitioning insurer's favor. Beyond CPLR 7511 review, compulsory awards require evidentiary support and cannot be arbitrary and capricious. Even assuming a legal misapplication, this award rested on a reasonable hypothesis and did not contradict settled law.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 29225
Provider prevailed
The insurer failed to establish a reasonable excuse for default by citing the absence of a record of receiving process. The Appellate Term, Second Department, reversed the order granting vacatur and denied that branch of the insurer's motion under CPLR 5015 (a) (1). The process server's affidavit established prima facie service on an authorized general agent under CPLR 311 (a) (1). The insurer supplied no affidavit from that person denying service, explaining the handling of process, or describing usual receipt procedures, and no explanation for the omission. Its claim representative's affidavit concerning computer records and business procedures failed to rebut the process server's specific facts or raise a triable service issue. On appeal, the insurer abandoned jurisdictional vacatur and a traverse hearing.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 51182(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and denials despite separate delay letters that did not toll its deadline. The provider correctly argued that certain insurer letters failed to toll the time to pay or deny. The insurer's submission also included EUO scheduling letters timely mailed by the law firm retained to conduct the EUOs, and the provider raised no challenge to their sufficiency. The insurer's affidavits sufficiently established timely mailing of the denial forms. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 51183(U)
Insurer prevailed
The provider's challenge to IME notice failed because the mailing address matched the address on its bill and the assignor's application. The insurer sought summary judgment based on the assignor's failure to appear for scheduled IMEs. The provider's sole appellate argument was that the scheduling letters omitted an apartment number. The record conclusively showed that the letters used the address supplied in both the bill and the NF-2 application, so the provider did not demonstrate improper notice. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 51184(U)
Insurer prevailed
The insurer's employee testimony established that the insurer had not received the requested verification. The sole issue at the nonjury trial, fixed under CPLR 3212 (g), was whether the verification had been provided. The insurer's only witness, a 27-year employee, described mail receipt policies and procedures at both the office receiving certain items and the office processing the claims. The Civil Court credited that testimony and dismissed the complaint. Rejecting the provider's sole argument that the testimony was insufficient, the Appellate Term, Second Department, affirmed the judgment.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 51185(U)
Insurer prevailed
The provider's medical affidavit failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer supported its cross motion for summary judgment with proof of timely mailed denials and a sworn peer review report setting forth a factual basis and medical rationale for finding the services unnecessary. The provider's opposing doctor's affidavit did not sufficiently rebut that showing under Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion for summary judgment, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 19, 2019
2019 NY Slip Op 51187(U)
Provider prevailed
An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form. At a nonjury trial limited by stipulation to medical necessity, the insurer's orthopedic expert agreed with another doctor's peer review finding the services unnecessary and unrelated to the accident. The provider offered no rebuttal witnesses, but the Civil Court found the insurer's expert not credible. Giving substantial deference to that credibility assessment, the Appellate Term, Second Department, found the record supported the determination that the insurer had failed to prove lack of medical necessity and affirmed the judgment for the provider.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51158(U)
Insurer prevailed
A party invoking CPLR 3212 (f) must show unavoidable ignorance of critical facts and reasonable attempts to obtain them. The provider first served discovery demands, if at all, with its opposition to the insurer's summary judgment motion, 11 months after the answer. It failed to show reasonable efforts to obtain the discovery it claimed to need. The insurer sufficiently established two EUO nonappearances and was not required under Interboro Ins. Co. v Clennon to establish objective reasons for the requests as part of its prima facie showing. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51157(U)
Provider prevailed
An insurer must document its underwriting practices to establish that an application misrepresentation was material as a matter of law. The insurer sought dismissal on the ground that the assignor misrepresented the vehicle's ownership and use when procuring the policy. Under Interboro Ins. Co. v Fatmir, materiality requires proof that the insurer would not have issued the same policy had the correct facts been disclosed, supported by underwriting manuals, bulletins, or comparable rules. The insurer failed to establish that it would not have issued this policy. The Appellate Term, Second Department, affirmed denial of its motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51156(U)
Insurer prevailed
The provider failed to exhaust remedies against the vehicle owner before seeking assigned no-fault benefits from MVAIC. At a nonjury trial, MVAIC's employee testified that the assignor was not a covered person because the provider had not established exhaustion. Specifically, the provider failed to establish that the vehicle in which the assignor was a passenger lacked coverage. Following Hauswirth v American Home Assur. Co. and Compas Med., P.C. v MVAIC, the Appellate Term, Second Department, affirmed the judgment of the Civil Court, Kings County, dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51152(U)
Insurer prevailed
The provider's claim against MVAIC was premature because trial proof did not establish exhaustion of remedies against the vehicle owner. After a nonjury trial, the Civil Court, Queens County, awarded judgment to the provider for assigned no-fault benefits. Following Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp. and Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the judgment and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor. It also dismissed the appeal from the trial court's decision because no appeal lies from a decision under CCA 1702.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51161(U)
Insurer prevailed
An insurer need not supply objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. Under Interboro Ins. Co. v Clennon, the insurer must show two duly demanded EUOs, two failures to appear, and a timely denial. The insurer's proof established the provider's nonappearance and a presumption that the denial form was timely mailed. The provider's challenges to that proof and its demand for objective reasons supplied no basis to disturb dismissal. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51163(U)
Insurer prevailed
The insurer obtained summary judgment because its proof showed that it had issued no policy covering the loss. The Appellate Term, Second Department, rejected the provider's challenge to the sufficiency of that proof and affirmed the order granting the insurer's motion dismissing the complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51169(U)
Provider prevailed
The insurer waived its jurisdictional defense based on lack of New York contacts by pleading only improper service in its answer. Under CPLR 3211 (e), that answer preserved only the actual service objection. The claim fell within the Civil Court's monetary jurisdiction under CCA 202. The insurer also argued that it was exempt from Insurance Law § 5107, but did not demonstrate that its policy lacked no-fault coverage. The Appellate Term, Second Department, found no need to decide whether the claimed lack of contacts otherwise raised a personal jurisdiction issue and affirmed denial of the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51374(U)
Insurer prevailed
The provider failed to exhaust remedies against the known owner of the vehicle that struck its assignor before seeking MVAIC benefits. The assignor knew the vehicle owner's identity, requiring exhaustion before the provider could seek assigned no-fault benefits from MVAIC. Following Hauswirth v American Home Assur. Co. and Compas Med., P.C. v MVAIC, the Appellate Term, Second Department, reversed the judgment awarded to the provider after a nonjury trial. It remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51167(U)
Insurer prevailed
The provider failed to show that its bicyclist assignor met the accident-reporting requirement for MVAIC benefits or qualified for an excuse. Insurance Law § 5208 (a) (2) (A) requires a hit-and-run accident report within 24 hours; subdivision (B) permits an excuse if reporting was not reasonably possible or occurred as soon as reasonably possible. MVAIC's claims examiner stated that repeated requests produced no proof of a report. The provider's opposition showed neither compliance nor reasonable impossibility. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in MVAIC's favor under Insurance Law § 5221 (b) (2), because obtaining no-fault benefits required compliance with the applicable requirements of Insurance Law article 52.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51159(U)
Insurer prevailed
MVAIC established that the provider commenced its action after the three-year statute of limitations expired. The provider moved for summary judgment on its assigned no-fault claims, and MVAIC cross-moved to dismiss on limitations and other grounds. MVAIC's cross-moving papers made a prima facie showing of untimeliness, and the provider failed to raise a factual issue in opposition. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting MVAIC's cross motion, following Kings Highway Diagnostic Imaging, P.C. v MVAIC.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51155(U)
Insurer prevailed
MVAIC's witness established nonreceipt of requested verification despite beginning employment more than a year after the accident. Receipt of verification was the sole trial issue under CPLR 3212 (g), and the Civil Court, Kings County, credited the witness's testimony and dismissed the provider's complaint. The witness learned MVAIC's mail procedures from a manual documenting procedures and their effective periods. Those procedures were unchanged from the accident through the start of employment, and a search of MVAIC's records disclosed no receipt of the verification. Assuming the provider preserved its hearsay objection, the Appellate Term, Second Department, found the testimony sufficient and affirmed the judgment.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51149(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it had furnished the verification requested for the second cause of action. The insurer had obtained summary judgment dismissing that cause of action for failure to provide verification. The opposing affidavit created a presumption that the verification had been mailed to and received by the insurer under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied that branch of the insurer's motion.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51150(U)
The Workers' Compensation Board has primary jurisdiction to decide whether an assignor was acting as an employee when injured. The insurer submitted sufficient evidence to raise an issue whether the assignor's accident occurred in the course of employment and whether workers' compensation benefits might be available. The record also indicated that an application to the Board had been made. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granting the provider's cross motion, and remitted the matter to the Civil Court to be held in abeyance pending the Board's determination of the parties' rights under the Workers' Compensation Law.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51153(U)
Insurer prevailed
The insurer obtained summary judgment on proof of properly mailed denials and proper use of the workers' compensation fee schedule. The Appellate Term, Second Department, found the proof sufficient to establish a mailing presumption and the amount payable for the services, rejected the provider's remaining contention, and affirmed the order dismissing the complaint.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51154(U)
Split result
The insurer failed to establish timely mailing of its denials, but the provider also failed to establish entitlement to summary judgment. Without proof of timely mailing, the insurer did not demonstrate that its asserted defenses escaped preclusion. The provider, however, failed to show either that the claims had not been timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the provider's motion denied and the claims pending.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51162(U)
Insurer prevailed
The insurer established that five causes of action were premature because timely requested verification remained outstanding. Initial and follow-up verification requests were timely mailed, and the insurer had not received the requested material for the fifth, sixth, and eighth through tenth causes of action. For the first through fourth and seventh causes of action, the provider failed to establish either untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the five premature causes of action and denying the provider summary judgment on all ten. The remaining five causes of action were not dismissed.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51165(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity, and the provider submitted no medical evidence rebutting its conclusions. The report supplied a factual basis and medical rationale for finding the supplies unnecessary. The insurer's proof also established a presumption that its denial form had been properly mailed, defeating the provider's mailing challenge. The Appellate Term, Second Department, deemed the appeal from the summary judgment order taken from the subsequently entered judgment under CPLR 5501 (c) and affirmed the judgment dismissing the complaint in the insurer's favor.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51166(U)
Split result
The provider's affidavit raised a triable issue as to whether requested verification had been mailed to and received by the insurer. The insurer had obtained summary judgment dismissing the complaint for failure to provide verification, while the provider's cross motion was denied. The opposing affidavit established a presumption of mailing and receipt under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The resulting factual issue defeated summary judgment for either side. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51170(U)
Insurer prevailed
The insurer prevailed at trial on outstanding verification, and the record supported the trial court's credibility assessment. The nonjury trial was limited to whether requested verification remained outstanding. The Civil Court credited the insurer's witness, the only witness to testify, and dismissed the complaint. The Appellate Term, Second Department, explained that its factual review power was as broad as the trial court's but that credibility findings receive substantial deference because the trial court observes the witness's testimony and demeanor. Finding no basis to disturb the determination, it affirmed the judgment.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51171(U)
Insurer prevailed
The provider failed to justify a CPLR 306-b service extension under either good cause or the interest of justice. Service occurred 47 days after the 120-day period expired and after the six-year limitations period under CPLR 213 had run. The provider blamed law office failure, sought an extension about nine months after the insurer moved to dismiss, and supplied no argument or documentation concerning the action's merits. Law office failure did not establish good cause; the circumstances also did not warrant an interest-of-justice extension. The Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (8) and denial of the provider's extension request.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51172(U)
Insurer prevailed
The provider's CPLR 306-b extension request was denied, and dismissal under CPLR 3211 (a) (8) was affirmed. Service occurred beyond the 120-day period, and the provider sought to deem it timely. The Appellate Term, Second Department, affirmed denial of the extension and the insurer's jurisdictional dismissal for the reasons stated in the companion appeal decided the same day, No. 2017-2251 K C.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51173(U)
Insurer prevailed
The insurer's CPLR 3216 dismissal was reinstated because the provider's law office failure claim was not a justifiable excuse. The Appellate Term, Second Department, modified the reargument order to adhere to dismissal for failure to comply with a 90-day notice and otherwise affirmed. It relied on Faith Acupuncture, P.C. v Government Empls. Ins. Co. and Pro Health Acupuncture, P.C. v GEICO Ins.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51174(U)
Insurer prevailed
The insurer's dismissal under CPLR 3216 for failure to comply with a 90-day notice was reinstated upon reargument. The Appellate Term, Second Department, modified the reargument order to adhere to dismissal and otherwise affirmed, relying on the reasons stated in the companion appeal, Faith Acupuncture, P.C. v GEICO Ins., decided the same day, No. 2018-302 K C.
Appellate Term, Second Department
Jul 12, 2019
2019 NY Slip Op 51175(U)
Insurer prevailed
Denial of a petition to vacate a master arbitrator's award requires confirmation of the award under CPLR 7511 (e). The provider sought vacatur of a master arbitrator's determination upholding an arbitrator's denial of assigned no-fault claims under Insurance Law § 5106 (b). The Appellate Term, Second Department, found a rational basis for that determination and upheld denial of the petition. It modified the order to add confirmation of the award and otherwise affirmed, noting that a special proceeding should terminate in a judgment under CPLR 411.
Appellate Term, Second Department
Jul 11, 2019
2019 NY Slip Op 51148(U)
Insurer prevailed
The insurer's first-class EUO notices sufficed despite the disputed proof of certified mailing of the follow-up notice. The District Court denied summary judgment because it found certified mailing of the follow-up letter unproved. The Appellate Term, Second Department, found timely mailing by both methods established and explained that even the lower court's finding would not excuse nonappearance absent evidence that first-class mailing was insufficient. The insurer also proved the provider's EUO nonappearances and timely mailing of denials on that ground, and the provider raised no triable issue. The order was reversed, and the insurer's motion for summary judgment dismissing the complaint was granted.
Trial court, First Department
Jul 29, 2019
2019 NY Slip Op 51206(U)
Insurer prevailed
MVAIC may assert lack of coverage based on an untimely notice of claim despite an untimely denial of benefits. The Civil Court, Bronx County, granted MVAIC summary judgment, dismissed the provider's complaint with prejudice and denied the provider's cross motion. The notice was filed approximately seven months after the accident, beyond the 90-day period in Insurance Law § 5208 (a) (2) (A). Timely filing was a condition precedent to recovery, and the provider acquired no greater rights than its assignor. The court found leave to file late barred under Insurance Law § 5208 (c). Following Central General Hospital v Chubb Group of Ins. Companies, it rejected preclusion based on the late denial and did not reach MVAIC's remaining argument.
Trial court, Second Department
Jul 15, 2019
2019 NY Slip Op 29218
Provider prevailed
MVAIC's defense that an injured claimant is not a qualified person is subject to preclusion under the no-fault time limits. After an earlier order limited trial to the reasonableness of the EUO requests' timing, the parties stipulated that MVAIC requested the assignor's EUO more than two years after receiving the provider's bills. The Civil Court, Queens County, awarded judgment to the provider with statutory interest and fees. Insurance Law § 5221 (b) (3) subjects MVAIC to the same no-fault obligations as insurers, including the verification deadline in 11 NYCRR 65-3.5 (b). The court treated the qualification defense as a policy-condition defense requiring timely assertion, rather than a claim that the injuries did not arise from a covered accident.
