Appellate Division, First Department
Oct 29, 2019
2019 NY Slip Op 07716
Provider prevailed
The insurer failed to prove timely mailing of EUO letters, and factual issues remained about the assignor's departure from an EUO. The Appellate Division, First Department, affirmed denial of summary judgment declaring no coverage for the provider based on two alleged EUO failures. Conflicting adjuster affidavits and inconsistent dates on the benefits application undermined mailing proof. The assignor appeared with counsel but left after counsel abruptly withdrew, raising factual issues about the departure. The provider's delayed-claim notice argument under 11 NYCRR 65-3.6 (b) was unpreserved. Its attorney-fee argument also failed because the appeal arose from a declaratory action, not arbitration, under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (j) (4).
Appellate Division, Second Department
Oct 9, 2019
2019 NY Slip Op 07246
Insurer prevailed
A master arbitration award with evidentiary support and a rational basis is not subject to judicial vacatur for mere legal error. The Appellate Division, Second Department, reversed the provider's judgment, denied its CPLR article 75 petition, and confirmed the master award upholding denial for fraudulent incorporation. A prior unexplained vacatur did not establish an identical issue necessarily decided and therefore afforded no collateral estoppel. Unlike judicial review, master review includes legal error under 11 NYCRR 65-4.10 (a) (4). The insurer submitted supporting evidence, and the original arbitrator gave reasons grounded in it. Inadmissible evidence could be considered because arbitrators are not bound by evidentiary rules. The contrary summary-judgment decision in Nationwide Affinity was issued after the master award and did not require vacatur.
Appellate Division, Second Department
Oct 9, 2019
2019 NY Slip Op 07264
Insurer prevailed
The provider failed to establish grounds to vacate a master award upholding denial of benefits for fraudulent incorporation. The original arbitrator found fraudulent incorporation under Mallela, and the master arbitrator affirmed. The Appellate Division, Second Department, reversed the provider's judgment, denied its petition, and confirmed the master award. Judicial review under CPLR article 75 was limited to whether the compulsory arbitration determination had evidentiary support, was rational, or had a plausible basis. Following the companion Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., decided the same day, the court found evidentiary support and no irrationality. The award therefore was not subject to judicial vacatur even if the master arbitrator committed an error of law.
Appellate Division, Second Department
Oct 9, 2019
2019 NY Slip Op 07249
Provider prevailed
A master arbitrator exceeds the permitted review power by reweighing evidence of fraudulent incorporation and reaching a different factual conclusion. The original arbitrator awarded benefits after finding no reasonable or credible evidence supporting the insurer's fraudulent-incorporation defense. The master arbitrator deemed the evidence substantial, vacated the award, and directed a new hearing before another arbitrator. Applying Petrofsky in the provider's CPLR article 75 proceeding, the Appellate Division, Second Department, affirmed the judgment vacating the master award and confirming the original award because the master arbitrator had reweighed the evidence. The matter was remitted to Supreme Court, Kings County, to fix the provider's additional attorney fee for the appeal under 11 NYCRR 65-4.10 (j) (4).
Appellate Division, Second Department
Oct 9, 2019
2019 NY Slip Op 07245
Provider prevailed
An arbitrator acts within discretionary authority by refusing to consider late submissions. The original arbitrator awarded the provider benefits after excluding the insurer's submissions as late and unexplained. The master arbitrator vacated that award and found for the insurer on a fraudulent-incorporation defense the original arbitrator had refused to consider. The Appellate Division, Second Department, affirmed the judgment in the provider's CPLR article 75 proceeding vacating the master award and confirming the original award. The master arbitrator exceeded the permitted power by rejecting a proper exercise of discretion and deciding factual questions de novo. The matter was remitted to Supreme Court, Kings County, to fix an additional attorney fee for the appeal under 11 NYCRR 65-4.10 (j) (4).
Appellate Division, Second Department
Oct 9, 2019
2019 NY Slip Op 07265
Provider prevailed
A master arbitrator may assess legal sufficiency but may not weigh evidence or make independent factual findings. The original arbitrator awarded the provider benefits for part of its claim, accepting the assignor's IME nonappearance defense but rejecting the provider's EUO nonappearance and fraudulent-incorporation defenses. The master arbitrator vacated the award and remitted the fraudulent-incorporation issue to a new arbitrator. Applying Petrofsky in this CPLR article 75 proceeding, the Appellate Division, Second Department, found no rational basis for the master's conclusion that rejecting that defense was legal error. It affirmed the provider's judgment vacating the master award and confirming the original award, and remitted for Supreme Court to fix an additional attorney fee for the appeal under 11 NYCRR 65-4.10 (j) (4).
Appellate Division, Second Department
Oct 2, 2019
2019 NY Slip Op 07061
Insurer prevailed
The provider's challenge to its arbitration attorney fee failed because it submitted no documentation of hours worked. After obtaining benefits, interest, and a fee under 11 NYCRR 65-4.6 (b), the provider sought an hourly fee under 11 NYCRR 65-4.6 (c). The master arbitrator affirmed because the request lacked time sheets or other supporting documentation. The Appellate Division, Second Department, affirmed denial of the provider's CPLR 7511 petition: the master award had a rational basis and was neither irrational nor arbitrary and capricious. The insurer prevailed on the challenge. The provider also failed to establish entitlement to appellate attorney fees under Insurance Law § 5106 (a), because the master arbitrator had not found the claims overdue.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51734(U)
Split result
The insurer proved a fee-schedule limit of $425.88 per claim but failed to establish lack of medical necessity. The provider sought assigned no-fault benefits, and the insurer denied the claims on medical-necessity and fee-schedule grounds. Although the insurer's proof did not establish that the services were medically unnecessary, its certified medical coder's affidavit established that charges exceeding $425.88 per bill exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment only as to amounts above that limit on each claim and otherwise affirmed. The denial of the provider's cross motion for summary judgment remained in effect.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51736(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the out-of-state insurer through counsel's unsupported affirmation. The insurer's employee affidavits established its lack of New York business contacts. Counsel's affirmation lacked personal knowledge and did not establish jurisdiction under CCA 404 (a). Authority to compel arbitration did not establish judicial jurisdiction. The provider's request for jurisdictional discovery under CPLR 3211 (d) was raised for the first time on appeal; alternatively, the unverified complaint and conclusory affirmation supplied no tangible evidence warranting discovery. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to dismiss the assigned no-fault complaint under CPLR 3211 (a) (8).
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51733(U)
Insurer prevailed
The provider's summary judgment motion was denied on appeal for failure to establish the required proof concerning claim denial. The proof established neither that the claim had not been timely denied nor that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, reversed the order granting the motion and reached no other issue.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51735(U)
Insurer prevailed
The provider's certified-mail service did not establish personal jurisdiction over the insurer. The provider mailed the summons and complaint by certified mail, return receipt requested, but supplied no evidence of first-class mailing with two copies of the required service statement and acknowledgment, or return of a signed acknowledgment, under CPLR 312-a (a) and (b). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8). Even proper service would not have prevented dismissal, for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51737(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51738(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51739(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51740(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51741(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51742(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51743(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51744(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51745(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51746(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51747(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51748(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51749(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51750(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51751(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51752(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51753(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51754(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51755(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51756(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51758(U)
Insurer prevailed
The insurer's motion to dismiss the provider's complaint for lack of personal jurisdiction was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51759(U)
Insurer prevailed
The provider's claims for services to two assignors were premature because requested verification remained outstanding. In an action involving three assignors, the insurer appealed the denial of summary judgment as to the claims for two of them. The insurer established timely mailing of initial and follow-up verification requests and nonreceipt of the requested verification, demonstrating that those claims were premature under Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. The provider failed to raise a triable issue of fact in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's motion dismissing the claims for those two assignors.
Appellate Term, Second Department
Oct 25, 2019
2019 NY Slip Op 51761(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in the companion appeal decided the same day, Pierre J. Renelique, M.D., P.C. v American Ind. Ins. Co., No. 2017-2405 K C.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51684(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearances. The provider appealed dismissal of its assigned no-fault claims, challenging proof of timely denial and EUO nonappearance and the absence of objective reasons for the requests. The insurer's proof raised a presumption of timely mailing of the denial and demonstrated the provider's nonappearances. 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 a timely denial. It affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51683(U)
The erroneous exclusion of a police accident report required a new trial on whether the assignor was injured in the underlying accident. That question was the sole issue at the nonjury trial in the provider's action for assigned no-fault benefits. The Civil Court, Kings County, awarded judgment to the provider, but the excluded report was material to the issue being tried. The Appellate Term, Second Department, reversed the judgment and remitted the matter for a new trial. It separately dismissed the appeal from the trial court's decision because no appeal lies from a decision under CCA 1702.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51704(U)
Insurer prevailed
The insurer's severance motion was granted because the four assignors' claims arose from separate accidents with few common factual issues. The provider brought one action to recover no-fault benefits assigned by four individuals. The complaint alleged that the claims arose from four separate accidents on four different dates. The Appellate Term, Second Department, concluded that the facts relating to each claim were likely to present few, if any, common issues of fact. It reversed the Civil Court's order denying severance under CPLR 603 and granted the insurer's motion to sever each assignor's claim into a separate action.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51690(U)
Insurer prevailed
An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests. The provider sued for assigned no-fault benefits, and the insurer sought summary judgment because requested verification remained outstanding. The insurer's proof raised a presumption that the initial and follow-up requests were properly mailed and demonstrated nonreceipt of the requested verification. Under 11 NYCRR 65-3.8 (a) (1) and 11 NYCRR 65-3.8 (b) (3), payment or denial was not required until all demanded verification was supplied. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51707(U)
Insurer prevailed
The insurer's severance motion was granted because separate accident claims were likely to raise few, if any, common factual issues. The provider sought no-fault benefits assigned by three assignors, and its complaint alleged three accidents on different dates. Review of the answer, denial forms, and explanations of review showed that the facts relating to each claim were likely to raise few common issues. The Appellate Term, Second Department, reversed the order denying severance under CPLR 603 and granted the insurer's motion to sever the first cause of action from the remaining causes of action.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51703(U)
Insurer prevailed
The insurer was entitled to sever six assignors' claims arising from separate accidents and denied for lack of medical necessity. The provider sought assigned no-fault benefits in a single action, and the insurer moved under CPLR 603 to sever the causes of action into six separate actions. The complaint alleged six accidents on different dates. Medical necessity was inherently distinct to each assignor, leaving likely few, if any, common factual issues. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to sever.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51700(U)
Insurer prevailed
MVAIC's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and the provider's cross motion denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2018-1076 K C.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51699(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed, defeating the provider's claim for assigned no-fault benefits. Under Insurance Law § 5208 (a) and § 5221 (b) (2), the assignor was not a covered person, and a condition precedent to applying for payment had not been satisfied. 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 factual issue. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51698(U)
Insurer prevailed
A provider must exhaust remedies against all potential insurance carriers before seeking assigned no-fault benefits from MVAIC. The provider appealed an order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the provider had not demonstrated exhaustion of its remedies and that its claim was therefore premature. The order was affirmed in MVAIC's favor.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51694(U)
Insurer prevailed
A claimant must establish timely filing of a notice-of-intention affidavit to recover no-fault benefits from MVAIC. Under Insurance Law § 5208 (a) (1) and (3) and § 5221 (b) (2), filing is a condition precedent to payment and must be shown to establish covered-person status. After a nonjury trial, the provider obtained a judgment for assigned benefits but had not established submission of the affidavit. The Appellate Term, Second Department, held that the provider failed to establish its prima facie case, reversed the judgment, and remitted for entry of judgment dismissing the complaint in MVAIC's favor, expressly reaching no other issue.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51687(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. The provider failed to raise a factual issue concerning the action's timeliness. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion, and expressly reached no other issue.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51682(U)
Insurer prevailed
The provider's challenges to MVAIC's summary judgment motion were unpreserved because they were raised for the first time on appeal. The provider appealed from an order granting MVAIC summary judgment dismissing its action for assigned first-party no-fault benefits. The Appellate Term, Second Department, declined to consider any of the provider's arguments for denying the motion, following Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen. It affirmed the order dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51681(U)
Insurer prevailed
The insurer's timely motion to vacate the notice of trial was granted because the readiness certificate incorrectly stated discovery was waived. The insurer served interrogatories with its answer. The provider later filed a notice of trial and certificate of readiness representing that discovery had been waived, and the insurer disputed that representation. Under 22 NYCRR 208.17 (c), the erroneous statement supported vacatur of the notice of trial. The Appellate Term, Second Department, also found no improvident exercise of discretion in denying the provider's request for a protective order. It affirmed the order granting the insurer's motion and denying the provider's cross motion, which also sought to strike affirmative defenses.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51688(U)
Insurer prevailed
The insurer's IME notices used a proper address because it matched the assignor's sworn claim forms, despite omitting an apartment number. The Civil Court denied the insurer's cross motion for summary judgment based on IME nonappearance and limited the remaining trial issue to whether the mailing address was proper. The record conclusively showed that the address matched both the assignor's sworn no-fault application and sworn notice of intention to make a claim. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51689(U)
Insurer prevailed
The insurer established timely IME notices, the assignor's nonappearances, and timely denials based on failure to satisfy a coverage condition. A supervisor's affidavit from the service retained to schedule IMEs sufficiently established timely mailing of the scheduling letters. The insurer also proved the assignor's failure to attend the duly scheduled IMEs and timely denial of the claims on that ground. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage. The provider raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51691(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial. The Appellate Term, Second Department, reversed the ensuing judgment and vacated the portion of the order granting the motion, stating that the provider's proof established neither that the claim was not timely denied nor that a timely denial was conclusory, vague, or meritless as a matter of law.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51692(U)
Insurer prevailed
The provider's summary judgment motion was denied on appeal, and its judgment for assigned no-fault benefits was reversed. The Appellate Term, Second Department, vacated the portion of the underlying order granting the motion for the reasons stated in the companion appeal decided the same day, No. 2017-2381 K C; it deemed the appeal taken from the ensuing judgment under CPLR 5501 (c).
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51693(U)
Both summary judgment motions were denied because neither side established the requisite showing concerning the insurer's denials. The insurer failed to prove timely mailing and availability of its defenses; the provider failed to prove untimely denial or legally insufficient timely denials. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed denial of the provider's cross motion.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51695(U)
Insurer prevailed
The insurer proved timely IME notices sent to the address on the assignor's sworn application, two nonappearances, and timely denials. The provider obtained summary judgment on its assigned no-fault claims, and the insurer appealed; the appeal was deemed taken from the ensuing judgment under CPLR 5501 (c). The insurer's cross motion established timely mailing of the initial and follow-up IME letters to the stated address and the assignor's failure to appear on either date. The provider raised no triable issue. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51696(U)
Insurer prevailed
The providers failed to show that essential jurisdictional facts might exist to warrant discovery under CPLR 3211 (d). The providers appealed dismissal of their assigned no-fault claims and denial of their cross motion for jurisdictional discovery. Their sole argument was that discovery was necessary to oppose the insurer's dismissal motion. The Appellate Term, Second Department, found that counsel's conclusory affirmation and the exhibits, including a transcript of the parent company's vice president of claims, did not supply tangible evidence supporting a nonfrivolous jurisdictional predicate. The providers therefore had not made the sufficient start required to obtain discovery concerning personal jurisdiction. The order was affirmed in the insurer's favor.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51697(U)
Insurer prevailed
The insurer's summary judgment dismissal based on IME nonappearance was affirmed after its mailing proof was found sufficient. The Appellate Term, Second Department, rejected the provider's sole contention that the insurer had not established proper mailing of the IME scheduling letters, relying on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., and affirmed both dismissal and denial of the provider's cross motion for summary judgment.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51702(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the assignor's IME nonappearances was granted on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal, Valdan Acupuncture, P.C. v Global Liberty Ins. Co. of NY, decided the same day, No. 2018-1352 K C, and denied the provider's motion to compel discovery as moot.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51705(U)
Split result
The insurer established the assignor's IME nonappearances and timely mailing of the scheduling letters and denial for one claim. The provider sought assigned no-fault benefits and moved to compel discovery; the insurer cross-moved for summary judgment based on the assignor's failure to attend duly scheduled IMEs. The insurer proved timely mailing of the initial and follow-up scheduling letters, nonappearance on both dates, and timely denial of the claim at issue. The provider raised no triable issue. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal of that claim, but left the order compelling discovery intact because the insurer established no basis to disturb it.
Appellate Term, Second Department
Oct 18, 2019
2019 NY Slip Op 51708(U)
Insurer prevailed
The insurer's severance motion was granted because separate accident claims were likely to raise few, if any, common factual issues. The provider sought no-fault benefits assigned by two assignors, and its complaint alleged two accidents on different dates. Review of the answer, denial forms, and explanations of review showed that the facts relating to each claim were likely to raise few common issues. The Appellate Term, Second Department, reversed the order denying severance under CPLR 603 and granted the insurer's motion to sever the first cause of action from the remaining cause of action.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51629(U)
Insurer prevailed
An insurer need not give objective reasons for EUO requests to establish entitlement to summary judgment based on nonappearance. The provider appealed the portion of an order that, upon reargument, granted the insurer's previously denied motion for summary judgment dismissing assigned no-fault claims. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, explained that the insurer need only demonstrate 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 EUO requests were also required and affirmed the order, insofar as appealed from, in the insurer's favor.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51626(U)
Insurer prevailed
The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal. The Civil Court, Kings County, had dismissed the assigned no-fault action on the ground that the provider failed to appear for duly scheduled EUOs and had denied the provider's cross motion for summary judgment. The Appellate Term, Second Department, declined to consider the newly raised argument. Because the provider demonstrated no basis to disturb either ruling, it affirmed the order in the insurer's favor.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51625(U)
Insurer prevailed
The provider's cross motion for summary judgment was denied because it failed to establish submission of its claims to MVAIC within 45 days. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, citing 11 NYCRR 65-1.1 and Bajaj v MVAIC in rejecting the provider's sole appellate argument concerning submission within 45 days after the services were rendered.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51621(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 Maria S. Masigla, P.T. v Omni Indem. Co. It remitted the matter for entry of judgment dismissing the complaint without giving independent reasoning.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51618(U)
Insurer prevailed
MVAIC established that no timely sworn notice to make claim was filed, defeating a condition precedent to no-fault benefits. The assignor therefore was not a covered person under Insurance Law § 5221 (b) (2), because the notice requirement of Insurance Law § 5208 (a) was unmet. The provider failed to establish leave to file a late notice 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 summary judgment dismissing the complaint; it reached no other issue.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51613(U)
Split result
The parties' conflicting bill mailing and receipt dates raised a factual issue over whether the insurer timely denied the claims. The provider appealed an order granting the insurer summary judgment based on the assignor's EUO nonappearances and denying the provider's cross motion. The Appellate Term, Second Department, found a significant discrepancy between the date the provider claimed it sent the bills and the date the insurer claimed it received them. That discrepancy prevented resolution of denial timeliness on summary judgment. The court modified the order to deny the insurer's motion dismissing the complaint and otherwise affirmed, leaving the denial of the provider's cross motion intact.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51614(U)
Provider prevailed
The insurer's affidavit failed to establish that the insured vehicle was not involved in the accident, although its motion was timely. The affidavit stated only that the insured was out of town, did not operate the vehicle that day, and observed no damage upon returning. The Appellate Term, Second Department, left open objections to its notarization and missing caption because it was insufficient even if considered. Under CPLR 3212 (a), CPLR 2211, and CPLR 2103 (b) (2), the motion was timely when mailed to counsel two days before the 120-day deadline; its later return date did not control. The court reversed the order and denied the insurer's summary judgment motion dismissing the complaint.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51616(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the provider's EUO nonappearances was affirmed. The Appellate Term, Second Department, also upheld denial of the provider's cross motion for summary judgment, relying on the reasons stated in the companion appeal, Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co., decided the same day, No. 2017-2389 K C.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51617(U)
Insurer prevailed
The insurer established timely EUO notices, the assignor's failure to appear twice, and timely denials based on those nonappearances. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint. The insurer proved timely mailing of the initial and follow-up EUO scheduling letters, nonappearance on both dates, and timely denial of the claims on that ground. The provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51619(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the assignor's failure to attend duly scheduled IMEs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal, Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co., decided the same day, No. 2017-2389 K C, and upheld dismissal of the provider's assigned no-fault claims.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51620(U)
Insurer prevailed
The insurer's trial proof supported dismissal based on the provider's failure to appear for scheduled EUOs. Nonappearance was the sole issue at the nonjury trial, and the Civil Court found that the insurer had established it. The Appellate Term, Second Department, explained that its review power was as broad as the trial court's, while credibility determinations receive substantial deference because the trial court observes the witnesses. Reviewing testimony and evidence admitted without objection, it found no basis to disturb the finding and affirmed dismissal in the insurer's favor. Under CPLR 5520 (c), it deemed the notice of appeal from the decision a premature notice of appeal from the judgment.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51628(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's IME nonappearances was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal, Allay Med. Servs., P.C. v Metropolitan Gen. Ins. Co., decided the same day, No. 2017-2389 K C. The trial issue had been limited to nonappearance under CPLR 3212 (g).
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51630(U)
Insurer prevailed
The provider failed to establish grounds to vacate, reargue, or renew an order dismissing its claims for EUO nonappearance. The insurer's summary judgment motion had been granted without written opposition but after oral argument. The Appellate Term, Second Department, could not determine whether the motion had been treated as opposed or granted on default. Either way, relief was unavailable: the provider showed no meritorious opposition under CPLR 5015 (a) (1), no overlooked or misapprehended facts or law under CPLR 2221 (d) (2), and no new facts changing the determination under CPLR 2221 (e) (2). The court affirmed denial of the provider's motion for relief, leaving the insurer's dismissal intact.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51631(U)
Insurer prevailed
The insurer established at trial that the initial and follow-up EUO scheduling letters were timely and properly mailed. The parties stipulated that mailing of the assignor's EUO notices was the sole issue in the nonjury trial. The only witness was an insurer employee who testified about its mailing policies and procedures. Contrary to the Civil Court's finding, that proof established proper and timely mailing. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for entry of judgment in favor of the insurer dismissing the complaint.
Appellate Term, Second Department
Oct 11, 2019
2019 NY Slip Op 51632(U)
Insurer prevailed
The provider's summary judgment cross motion on two bills was denied for failure to establish untimely or legally insufficient denials. The Appellate Term, Second Department, reversed the order, insofar as appealed from, because the provider's proof established neither that those claims had not been timely denied nor that timely denials were conclusory, vague, or without merit as a matter of law.
Appellate Term, First Department
Oct 4, 2019
2019 NY Slip Op 51559(U)
Provider prevailed
MVAIC's motion for summary judgment dismissing the provider's no-fault action was denied for failure to establish its asserted eligibility defenses. The Appellate Term, First Department, affirmed because MVAIC did not establish prima facie that the assignor was not a qualified person entitled to coverage or that the provider had to exhaust remedies against the vehicle owner before commencing the action.
Appellate Term, First Department
Oct 4, 2019
2019 NY Slip Op 51560(U)
Provider prevailed
The insurer failed to establish grounds to vacate an award rejecting its IME nonappearance defense on a rational evidentiary basis. The arbitrator considered proof of mailing, the claimant's attendance at eight prior IMEs, and the insurer's treatment of the claimant as an adversary. The master arbitrator found the determination rational and free of the defects warranting vacatur. The Appellate Term, First Department, affirmed denial of the insurer's petition under CPLR 7511 (b) and confirmation of the award favoring the injured claimant. The insurer's complaint that other issues were unresolved also failed because it did not dispute the parties' agreement to bifurcate arbitration and limit the issue to the IME defense.
Trial court, Second Department
Oct 22, 2019
2019 NY Slip Op 51664(U)
Split result
The insurer's missing policy proof prevented summary judgment on coverage and left the choice of governing law unresolved. The Civil Court, Kings County, denied the insurer's motion because its conclusory affidavit and failure to produce the policy established neither noncoverage nor New Jersey law's applicability. An unobjected-to police report raised a factual issue about governing law, defeating the provider's request for full summary judgment. The provider established notice within 21 days of commencing treatment and overdue bills under N.J. Stat. § 39:6A-5 (a) and (g) and 11 NYCRR 65-3.8 (a). Its cross motion was granted only to establish timely bill submission and absence of a denial. If the insurer proves a solely New Jersey PIP endorsement at trial, the provider must establish medical necessity, which it had not shown.
