Appellate Division, First Department
Sep 3, 2019
2019 NY Slip Op 06445
Insurer prevailed
The master arbitrator's award was arbitrary because it ignored controlling law on the assignor's failure to attend duly scheduled IMEs. Following Hereford Ins. Co. v Lida's Med. Supply, Inc., the policy was void ab initio because of that nonappearance. The Appellate Division, First Department, reversed the order of Supreme Court, Bronx County, denying the insurer's petition to vacate the master award and granted the petition in the insurer's favor.
Appellate Term, Second Department
Sep 27, 2019
2019 NY Slip Op 51552(U)
Insurer prevailed
An insurer need not set forth objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances. The provider appealed an order granting the insurer summary judgment dismissing its assigned no-fault claims for failure to attend duly scheduled EUOs. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, explained that the insurer need only establish two duly demanded EUOs, two failures to appear, and timely denial of the claims. It rejected the provider's contention that objective reasons for the requests were additionally required and affirmed the dismissal in the insurer's favor.
Appellate Term, First Department
Sep 20, 2019
2019 NY Slip Op 51505(U)
Provider prevailed
⚠ Not followed by Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148)
The insurer failed to prove the assignor's nonappearance at scheduled IMEs with competent evidence. The Appellate Term, First Department, affirmed the denial of the insurer's motion for summary judgment dismissing the provider's no-fault action. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, 16 months later, that the assignor had failed to appear on the scheduled dates. The scheduling vendor's affidavit also failed to establish personal knowledge of the nonappearances. Routine recording of a third party's statements did not itself guarantee their truth or reliability.
Trial court, Second Department
Sep 4, 2019
2019 NY Slip Op 51439(U)
Insurer prevailed
The insurer established that the assignor's injuries resulted from the insured's deliberate use of a vehicle as a weapon. The Civil Court, Kings County, denied the provider's summary judgment motion and granted the insurer's cross motion to dismiss. Under 11 NYCRR 65-2.2 (a), no-fault coverage applies to injuries caused by an accident arising from motor vehicle use or operation. Police and criminal records, an investigator's affidavit, and witness and assignor accounts supported the finding of an intentional assault. Following State Farm Mut. Auto. Ins. Co. v Langan, the court assessed whether the event was accidental from the insured's perspective. The lack-of-coverage defense was not precluded by an untimely denial.
