Appellate Division, Fourth Department
Aug 22, 2019
2019 NY Slip Op 06349
Insurer prevailed
The provider's prima facie tort claim failed to allege sole disinterested malevolence, special damages, or sufficiently particular facts. The provider, an assignee of no-fault claims, alleged that the insurer's conduct violated 11 NYCRR 65-3.2. The Appellate Division, Fourth Department, reversed the order, insofar as appealed from, granted the insurer's CPLR 3211 (a) (7) motion in its entirety, and dismissed the complaint. Allegations of malice did not establish disinterested malevolence as the sole motivation, and the complaint lacked factual particularity under CPLR 3013. Under CPLR 5526, a provider affidavit was outside the appellate record because the order was not founded on it. The court deemed academic the insurer's argument that the unfair claims settlement provisions afforded no private cause of action.
Appellate Division, Fourth Department
Aug 22, 2019
2019 NY Slip Op 06243
Insurer prevailed
The provider's claims for additional damages from no-fault claim processing failed to state cognizable contract or tort causes of action. After the claims were arbitrated and paid, the provider sought further damages for verification requests, EUOs, and payment delays. The Appellate Division, Fourth Department, reversed and granted the insurer's CPLR 3211 (a) (7) motion, dismissing the amended complaint. The contract claim identified neither specific contracts nor breached provisions, and the provider conceded performance and exhaustion of contractual remedies. Negligent hiring, supervision, or retention allegations identified no negligence independent of the insurer's instructions or outside employment. The prima facie tort claim alleged neither exclusively malicious motivation nor specific, measurable loss. Dismissal of the remaining causes was conceded.
Appellate Division, Fourth Department
Aug 22, 2019
2019 NY Slip Op 06254
Insurer prevailed
The claimant's SUM verdict challenge failed because conflicting expert testimony supported the jury's finding of no accident-related injury. The Appellate Division, Fourth Department, affirmed dismissal after trial. Insurance and claims-representative evidence was properly excluded because coverage was undisputed, bad faith was not alleged, and the investigation was irrelevant to injury and causation. No factual basis supported an aggravation charge; an increased-susceptibility charge was given. The jury could credit the insurer's expert. The injury-only verdict question was unnecessary; Insurance Law § 5102 (d) required a serious injury inquiry. Under Insurance Law § 5104 (a) and Insurance Law § 3420 (f) (1) and (2), the insurer need not disclaim the serious injury requirement, so the claimant's directed-verdict argument failed.
Appellate Division, Second Department
Aug 7, 2019
2019 NY Slip Op 06059
Provider prevailed
An insurer that fails to request verification cannot deny a moxibustion claim under CPT code 97039 for insufficient information. The code's By Report designation required documentation to determine reimbursement, but did not relieve the insurer of its burden to request verification in the first instance. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), claims must be paid or denied within 30 days; timely verification tolls that period, with additional requests governed by 11 NYCRR 65-3.5 (b). The insurer received the requisite claim form but requested no additional verification. The Appellate Division, Second Department, affirmed the Appellate Term's order denying the insurer summary judgment and granting the provider's cross motion on the moxibustion cause of action because the denial lacked merit as a matter of law.
Appellate Term, Second Department
Aug 23, 2019
2019 NY Slip Op 51413(U)
Provider prevailed
The insurer's affidavits failed to establish a reasonable excuse for defaulting despite prima facie proof of proper service. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied vacatur of the default judgment and compulsory acceptance of the insurer's answer. The process server's affidavit established service on an authorized general agent under CPLR 311 (a) (1). The allegedly served employee neither addressed whether service occurred nor stated that the described intake procedures were followed at the relevant time. A claims representative's conclusory assertion that no service occurred because the computer system contained no record was also insufficient. The insurer therefore failed to satisfy CPLR 5015 (a) (1).
Appellate Term, Second Department
Aug 23, 2019
2019 NY Slip Op 51409(U)
The provider's complaint dismissal was reversed for a new trial on whether requested verification remained outstanding. The trial court placed the burden on the provider and dismissed when it called no witnesses, although the provider argued that the insurer first had to prove nonreceipt. The Appellate Term, Second Department, ordered a new trial for the reasons stated in Island Life Chiropractic, P.C. v Travelers Ins. Co.
Appellate Term, Second Department
Aug 23, 2019
2019 NY Slip Op 51414(U)
Insurer prevailed
The provider failed to excuse its untimely summary judgment opposition and cross motion when seeking vacatur of the resulting order. The Appellate Term, Second Department, affirmed the denial of the provider's motion to vacate the order granting the insurer summary judgment and denying the provider's cross motion. The parties' stipulation expressly required service by June 12 and deemed later papers null and void; the provider served its papers on July 7. Its vacatur papers incorrectly claimed timely service and offered no excuse for default, as required under CPLR 5015 (a). The assertion that counsel misread the deadline was raised for the first time on appeal and was not considered.
Appellate Term, Second Department
Aug 23, 2019
2019 NY Slip Op 51415(U)
Insurer prevailed
The provider failed to offer a reasonable excuse for serving summary judgment opposition more than a month after the stipulated deadline. The Appellate Term, Second Department, affirmed the denial of vacatur under CPLR 5015 (a) (1), leaving the insurer's summary judgment dismissal in place. The stipulation deemed papers served after the deadline null and void. Counsel's assertion that law office failure caused a one-day delay conflicted with the record showing a delay exceeding one month. Without a reasonable excuse, the court did not reach whether the provider had potentially meritorious opposition. It declined to consider counsel's explanation that the deadline was misread because that assertion was first raised on appeal.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51362(U)
Insurer prevailed
The insurer proved that the assignor misrepresented a Pennsylvania address on the policy application while living in Brooklyn. Before the nonjury trial, the parties stipulated that address misrepresentation was the sole and dispositive issue. The record included the assignor's unequivocal testimony that, despite listing Pennsylvania on the application, the assignor had already left that state and lived in Brooklyn. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in the insurer's favor; in light of the stipulation, it reached no other issue.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51363(U)
Insurer prevailed
The provider's judgment for assigned no-fault benefits after a nonjury trial was reversed in the insurer's favor. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2018-257 K C, and remitted the matter for entry of judgment dismissing the complaint.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51357(U)
Split result
The insurer established late submission of all disputed claims except one it conceded was timely filed. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny summary judgment dismissing the claim for services provided on July 26, 2010, and otherwise affirmed. The claims adjuster's affidavit established timely mailing of denials based on submission beyond 45 days under 11 NYCRR 65-2.4 (c). The denials advised that reasonable justification could excuse lateness. The insurer established entitlement to judgment on the remaining claims, and the provider failed to raise a triable issue through an attorney affirmation that did not assert personal knowledge of the facts.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51356(U)
Split result
The provider failed to establish entitlement to payment, and the insurer failed to establish timely mailing of its follow-up IME letter. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion, and denied that motion, while leaving the insurer's cross motion denied. The provider's proof established neither that the claims were untimely denied nor that timely denials were conclusory, vague, or without merit as a matter of law. The insurer failed to establish timeliness of its follow-up IME scheduling letter under 11 NYCRR 65-3.6 (b). Its argument concerning 11 NYCRR 65-3.5 (p) was first raised on appeal and was not considered.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51358(U)
Insurer prevailed
The provider's no-fault action was barred by a prior declaratory order establishing that the insurer had no liability for a staged accident. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint. The Supreme Court, Kings County, had granted declaratory relief on default against the provider and assignor. Although the insurer had not pleaded res judicata or sought pre-answer dismissal under CPLR 3211 (a) (5), the provider alleged neither prejudice nor surprise under CPLR 3018 (b), so the answer was deemed amended. Res judicata barred claims arising from the same transaction because a provider's judgment would impair rights established by the declaratory order.
Appellate Term, Second Department
Aug 16, 2019
2019 NY Slip Op 51359(U)
Split result
The insurer failed to establish timely IME scheduling, and the provider failed to establish its prima facie entitlement to payment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion for summary judgment, and denied that cross motion; the insurer's summary judgment motion remained denied. The first IME scheduling letter was mailed more than 30 days after receipt of the claims, defeating the insurer's showing that the assignor breached a condition precedent to coverage. Under Insurance Law § 5106 (a), the provider's proof failed to establish either untimely denials or timely denials that were conclusory, vague, or without merit as a matter of law.
Appellate Term, Second Department
Aug 9, 2019
2019 NY Slip Op 51316(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the out-of-state insurer after the insurer showed no jurisdictional basis for suit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, consolidating three actions for disposition of the insurer's motion and dismissing the complaint. The insurer alleged that it conducted no New York business, issued no policies there, had no local sales agent, and was not licensed there. Under CCA 404, the provider bore the ultimate burden of establishing jurisdiction, even with doubts resolved in its favor. Counsel's affirmation lacked personal knowledge and supplied no jurisdictional evidence. The provider's objection that consolidation required the pleadings was first raised on appeal and was not considered.
Appellate Term, Second Department
Aug 9, 2019
2019 NY Slip Op 51313(U)
Insurer prevailed
The provider's no-fault action was barred by res judicata because a prior declaratory order conclusively determined the claims' merits. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, upholding the denial of the provider's summary judgment motion and the grant of the insurer's cross motion to dismiss. In a declaratory action against the provider, assignor, and others, the Supreme Court, Bronx County, had granted the insurer summary judgment declaring no obligation to pay claims arising from the accident. The findings of fact supporting that award constituted a conclusive merits determination and precluded the provider's Civil Court action.
Appellate Term, Second Department
Aug 9, 2019
2019 NY Slip Op 51314(U)
Insurer prevailed
The insurer's cross motion to dismiss the provider's claims based on a prior declaratory order was granted, and the dismissal was affirmed. The Supreme Court, Bronx County, had declared that the insurer was not obligated to pay claims arising from the accident. The Appellate Term, Second Department, affirmed the judgment for the reasons stated in the companion appeal decided the same day, No. 2017-1167 Q C.
Appellate Term, Second Department
Aug 9, 2019
2019 NY Slip Op 51317(U)
Insurer prevailed
The insurer's motion to consolidate related actions for disposition of its motion and dismiss for lack of personal jurisdiction was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the provider's complaint for the reasons stated in the companion appeal decided the same day, No. 2017-2137 K C.
Appellate Term, Second Department
Aug 9, 2019
2019 NY Slip Op 51318(U)
Insurer prevailed
The insurer's motion to consolidate related actions for disposition of its motion and dismiss for lack of personal jurisdiction was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the provider's complaint for the reasons stated in the companion appeal decided the same day, No. 2017-2137 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51264(U)
Insurer prevailed
The insurer established proper fee schedule payment of one claim and lack of medical necessity for the remaining claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the complaint. A litigation examiner's affidavit established that the partially paid bill had been reimbursed under the workers' compensation fee schedule. For the other claims, affirmed peer review and IME reports supplied factual bases and medical rationales for finding the services unnecessary, and the provider did not rebut that showing. The provider did not challenge the Civil Court's CPLR 3212 (g) findings that the insurer was otherwise entitled to dismissal. The court reached no other issue.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51273(U)
An insurer asserting prematurity at trial must initially prove timely verification requests and nonreceipt of the requested verification. The Appellate Term, Second Department, reversed a directed-verdict dismissal and ordered a new trial on whether verification remained outstanding. Under 11 NYCRR 65-3.8 (a), the insurer bore the initial burden. A prior CPLR 3212 (g) order established timely mailing of verification requests, but left nonreceipt disputed. CPLR 3212 (g) limits trial issues by identifying undisputed facts; it does not shift the burden on remaining factual disputes. The trial court therefore erred by requiring the provider to present proof first and dismissing when it produced no witness, before the insurer offered testimony of nonreceipt.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51269(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the assignor's failure to appear for duly scheduled EUOs was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co., decided the same day, No. 2017-1778 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51276(U)
Insurer prevailed
The assignor failed to establish MVAIC eligibility because the record identified the assignor as a named insured and no timely notice was filed. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The record did not establish qualified-person status under Insurance Law § 5202 (b) and Insurance Law § 5208 (a) (1). Separately, MVAIC established failure to file a timely notice under Insurance Law § 5208 (a), defeating covered-person status under Insurance Law § 5221 (b) (2) and leaving a condition precedent to payment unsatisfied. The provider neither established leave to file late under Insurance Law § 5208 (c) nor raised another triable issue.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51257(U)
Insurer prevailed
The insurer established timely mailing of the EUO scheduling letters and the assignor's failure to appear. The provider appealed from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the complaint. In rejecting the provider's challenge to the mailing address, the Appellate Term, Second Department, found that the insurer had sent the letters to the address the provider supplied in its bills. The order was affirmed.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51267(U)
Provider prevailed
The insurer failed to excuse its summary judgment default, and later ministerial entry of judgment did not establish a stay violation. The Appellate Term, Second Department, reversed vacatur and dismissal, denying the insurer's motion to stay execution, vacate, and dismiss. Counsel's conclusory statement that a declaratory action was being prepared did not supply a reasonable excuse under CPLR 5015 (a) (1); potentially meritorious opposition was therefore not reached. Before the Supreme Court issued a temporary stay under CPLR 2201 and 6301, the Civil Court had granted summary judgment and the provider had requested judgment entry. The later entry was a ministerial act, and the record showed no party proceedings violating the stay.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51268(U)
Provider prevailed
The insurer's preparation of a declaratory judgment action did not reasonably excuse its failure to oppose the provider's summary judgment motion. The Appellate Term, Second Department, reversed the order vacating the provider's judgment and dismissing the complaint, and denied the insurer's motion to stay execution, vacate, and dismiss. A later declaratory judgment found a founded belief that the collision was intentional. Nevertheless, CPLR 5015 (a) (1) required a reasonable excuse for the earlier default. Counsel's conclusory explanation that the declaratory action was being prepared was insufficient, making consideration of potentially meritorious opposition unnecessary. The Supreme Court's temporary stay under CPLR 2201 and 6301 covered pending lawsuits; the provider's action was no longer pending because judgment had already been entered.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51253(U)
Insurer prevailed
The provider failed to establish its prima facie case against MVAIC because it did not prove submission of a timely notice-of-claim affidavit. Following Avicenna Med. Arts, P.L.L.C. v MVAIC, timely filing was a condition precedent to payment and necessary to establish covered-person status under Insurance Law § 5208 (a) (1), (3) and Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in MVAIC's favor; it reached no other issue.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51252(U)
Insurer prevailed
MVAIC established that the assignor failed to file a timely notice to make claim, leaving a condition precedent to benefits unsatisfied. Under Insurance Law § 5208 (a) and Insurance Law § 5221 (b) (2), the assignor was not a covered person. 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 Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's motion for summary judgment dismissing the complaint; it reached no other issue.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51246(U)
Insurer prevailed
MVAIC established that the provider's action was commenced after the three-year statute of limitations expired. The provider sought assigned first-party no-fault benefits and cross-moved for summary judgment in response to MVAIC's dismissal motion. Following Kings Highway Diagnostic Imaging, P.C. v MVAIC, the Appellate Term, Second Department, found that MVAIC's moving papers established untimeliness prima facie and that the provider failed to raise a factual issue in opposition. It affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51243(U)
Insurer prevailed
MVAIC established that no timely notice to make claim had been filed, defeating the provider's right to seek no-fault benefits. Under Insurance Law § 5208 (a), timely filing is a condition precedent to payment, and the assignor was therefore not a covered person under Insurance Law § 5221 (b) (2). The provider failed to show that leave to file a late notice had been obtained under Insurance Law § 5208 (c) or otherwise raise a triable issue. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51249(U)
Insurer prevailed
The insurer established that the alleged injury did not arise from an insured incident through its insured's EUO testimony and affidavit. The insured stated that no accident occurred while the vehicle was being parked and that the pedestrian assignor had not been struck. This evidence established the insurer's prima facie entitlement to summary judgment under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider opposed only with counsel's affirmation, which did not claim personal knowledge, and failed to raise a triable issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51254(U)
Insurer prevailed
The insurer established that its payments complied with the workers' compensation fee schedule, and the provider failed to rebut that showing. The dispute concerned acupuncture services rendered before April 1, 2013. The insurer demonstrated timely denials and proper use of the fee schedule under Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's cross motion for summary judgment dismissing the claims for the unpaid balance.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51255(U)
Split result
EUO requests that omit the time and place are delay letters and do not establish timely EUO scheduling. The insurer failed to establish timely notices for the first two causes of action. For the third, it established timely scheduling letters, tolling, nonappearance, and a timely denial. The provider failed to establish that the first two claims were not timely denied or that timely denials were legally insufficient. The Appellate Term, Second Department, reversed the judgment, vacated the portions of the order denying dismissal of the third cause of action and granting the provider summary judgment, dismissed the third cause of action, and denied the provider's cross motion. The first two causes of action remained pending.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51256(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the unpaid portion of the provider's claims was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2017-635 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51258(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the unpaid portion of the provider's claims was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2017-635 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51259(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the unpaid portion of the provider's claims was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted that branch of the cross motion for the reasons stated in the companion appeal decided the same day, No. 2017-635 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51260(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's complaint and denying the provider's cross motion. The provider challenged fee reductions based on the schedule for acupuncture performed by chiropractors. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the court rejected that challenge as a matter of law. The insurer's proof also created a presumption that the denial forms had been timely mailed.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51261(U)
Insurer prevailed
The insurer's summary judgment dismissal based on charges exceeding the workers' compensation fee schedule was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2017-905 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51262(U)
Split result
The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims. The Appellate Term, Second Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed, leaving both sides' motions denied. The late initial request prevented the insurer from obtaining dismissal based on the provider's EUO nonappearances. The provider independently failed to establish its prima facie entitlement to summary judgment: its proof showed neither that the claims had been untimely denied nor that timely denial forms were conclusory, vague, or without merit as a matter of law.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51266(U)
Provider prevailed
The insurer's summary judgment motion based on the provider's failure to appear for duly scheduled EUOs was denied on appeal. The Appellate Term, Second Department, reversed the dismissal order for the reasons stated in the companion appeal, Zen Acupuncture, P.C. v Ameriprise Ins. Co., decided the same day, No. 2017-915 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51271(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the assignor's failure to appear for duly scheduled EUOs was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co., decided the same day, No. 2017-1778 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51272(U)
Insurer prevailed
The provider's tolling challenge failed because the insurer submitted EUO scheduling letters whose sufficiency was not disputed. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint for the assignor's EUO nonappearances and denying the provider's cross motion. The provider correctly argued that certain delay letters did not toll the time to pay or deny the claims. But the insurer also submitted EUO scheduling letters mailed by its retained law firm, and the provider raised no issue concerning those letters' sufficiency. The court declined to consider the provider's remaining contention because it was raised for the first time on appeal.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51275(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to appear for duly scheduled EUOs was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in the companion appeal, Right Aid Med. Supply Corp. v Ameriprise Auto & Home, decided the same day, No. 2017-1776 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51277(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the insured vehicle's noninvolvement in the alleged accident was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for summary judgment for the reasons stated in the companion appeal, Parisien v Allstate Ins. Co., decided the same day, No. 2017-445 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51281(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's failure to appear for duly scheduled IMEs was granted on appeal. The Appellate Term, Second Department, reversed the order and dismissed the provider's complaint for the reasons stated in the companion appeal, Alleviation Med. Servs., P.C. v Citiwide Auto Leasing, decided the same day, No. 2017-1220 K C.
Appellate Term, Second Department
Aug 2, 2019
2019 NY Slip Op 51282(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's failure to appear for duly scheduled IMEs was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the provider's complaint for the reasons stated in the companion appeal, Alleviation Med. Servs., P.C. v Citiwide Auto Leasing, decided the same day, No. 2017-1220 K C.
Trial court, Second Department
Aug 30, 2019
2019 NY Slip Op 51417(U)
Insurer prevailed
The injured claimant's request to compel MVAIC to pay no-fault benefits was premature because remedies against known parties were unexhausted. The Supreme Court, Kings County, denied the petition under Insurance Law § 5221 without prejudice, treating it as a request for a declaration of qualified-person status under Insurance Law § 5202 (b). The bicyclist was struck by a vehicle whose owner and driver were identified. Police investigation at the scene satisfied Insurance Law § 5208 (a) (2) (A), and the court found timely notice to MVAIC. Following Hauswirth v American Home Assur. Co., however, the claimant had to exhaust available remedies against the known owner and operator before seeking MVAIC relief.
Trial court, First Department
Aug 16, 2019
2019 NY Slip Op 51841(U)
Insurer prevailed
MVAIC proved at trial that it had not received a notarized notice of intention to make a claim, defeating the provider's recovery. The parties stipulated to their prima facie cases and tried whether MVAIC had received the notarized notice. The provider called no witnesses. MVAIC's qualifications examiner credibly described its procedures for recording received documents and testified that the file contained only an incomplete notice, despite other notarized submissions. Under Insurance Law § 5208 (a), a timely affidavit is a condition precedent to payment. The Civil Court, New York County, found that the assignor was not a qualified person and dismissed the complaint in its entirety.
