Appellate Division, Second Department
Dec 18, 2019
2019 NY Slip Op 09047
An insurer's loss-transfer claim under Insurance Law § 5105 (a) is subject to mandatory arbitration, beyond Supreme Court's jurisdiction. The insurer that paid no-fault benefits to livery passengers sought a default judgment on its loss-transfer counterclaim against the other vehicle's insurer, which had sued for a declaration of no coverage based on an allegedly intentional collision. Insurance Law § 5105 (b) made arbitration the sole remedy; the declaratory action and coverage disclaimer did not alter that requirement under 11 NYCRR 65-4.11 (a) (6). The Appellate Division, Second Department, reversed the order, insofar as appealed from, and dismissed the counterclaim for lack of subject matter jurisdiction, which could be raised at any stage. The coverage-disclaiming insurer prevailed; the remaining contentions were not reached.
Appellate Division, First Department
Dec 12, 2019
2019 NY Slip Op 08951
Provider prevailed
The insurer failed to establish that the assignor was injured in the course of employment and eligible for workers' compensation. Although the assignor allegedly was injured driving a livery car, the Taxi and Limousine Commission license was issued that day, and the insurer offered no evidence that the assignor was on duty or carrying a paying passenger. The Appellate Division, First Department, affirmed dismissal of the insurer's petition to vacate the arbitration award and modified the order to remand for determination of the providers' attorney fees. Under 11 NYCRR 65-4.10 (j) (4), Supreme Court could award fees for judicial review of a master arbitration award and further appeals, including this appeal; it had failed to address the providers' request.
Appellate Division, First Department
Dec 12, 2019
2019 NY Slip Op 08942
Provider prevailed
The insurers failed to establish that licensed acupuncturists could be reimbursed only under the chiropractic fee schedule. The Appellate Division, First Department, affirmed the order, insofar as appealed from, denying summary judgment on the insurers' requested declaration and injunction against physician-rate claims. Insurance Law § 5108 (a) limits reimbursement to permissible workers' compensation charges. Without an acupuncturist schedule, 11 NYCRR 68.5 (b) permits prevailing geographic fees subject to review against similar procedures. The agency opinion and cases permitting chiropractic rates did not foreclose physician rates in every case. The insurers failed to establish improper billing, and providers raised a factual issue through agency materials and an unrebutted affidavit describing physician-rate reimbursement. The overbilling motion was also premature before discovery under CPLR 3212 (f).
Appellate Term, Second Department
Dec 31, 2019
2019 NY Slip Op 52143(U)
Insurer prevailed
The provider's appeal from a sua sponte stay of no-fault interest was dismissed because the ruling was not appealable as of right. After an unpaid settlement and entry of judgment under CPLR 5003-a, the provider moved under CPLR 5019 (a) to recalculate interest. The Civil Court, Queens County, granted correction but independently stayed interest accrual from February 3, 2003 through February 14, 2017. Under CCA 1702 (a) (2), the Appellate Term, Second Department, declined leave to appeal; the provider had not moved to vacate the stay, which could have produced an appealable denial. One justice dissented, favoring leave and vacatur because the insurer had not shown that the provider prevented settlement payment.
Appellate Term, Second Department
Dec 31, 2019
2019 NY Slip Op 52142(U)
Insurer prevailed
The provider's appeal from a sua sponte interest stay was dismissed because no appeal lay as of right and leave was declined. The insurer failed to pay a settlement, and judgment was entered under CPLR 5003-a. On the provider's CPLR 5019 (a) motion to recalculate interest, the Civil Court, Queens County, stayed no-fault interest from February 20, 2008 through February 22, 2017. The Appellate Term, Second Department, applied CCA 1702 (a) (2), noting that the provider had not moved to vacate the stay and appealed a denial. One justice dissented, favoring leave and reversal because the insurer had not demonstrated that the provider prevented payment.
Appellate Term, First Department
Dec 20, 2019
2019 NY Slip Op 52083(U)
Provider prevailed
MVAIC's conflicting vehicle-ownership evidence failed to eliminate triable issues on its lack-of-coverage defense. MVAIC sought summary judgment dismissing the provider's first-party no-fault action, contending that the assignor owned the uninsured vehicle and therefore was not a qualified person under Insurance Law § 5202 (b). Its own proof, however, tended to show that the assignor was neither the registered owner nor the title holder and that the vehicle was registered to someone else. The Appellate Term, First Department, affirmed denial of MVAIC's motion because MVAIC bore the burden of proving its defense and had not eliminated the factual dispute.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52036(U)
Provider prevailed
The provider's claims submitted in March 2000 were governed by the former no-fault regulations requiring compound interest. Following settlement and the insurer's failure to pay, a judgment entered under CPLR 5003-a awarded simple interest under 11 NYCRR 65-3.9 (a), effective April 5, 2002. The provider moved under CPLR 5019 (a) to recalculate interest under former 11 NYCRR 65.15 (h) (1). Following Belt Parkway Imaging, P.C. v State Wide Ins. Co., the Appellate Term, Second Department, concluded that all the claims were governed by the former regulations. It reversed the order, insofar as appealed from, and granted the provider's motion to substitute compound interest for simple interest.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52045(U)
Provider prevailed
MVAIC's IME nonappearance and outstanding-verification defenses were precluded by its failure to timely deny or request verification. Its submissions showed that it neither denied the claims within 30 days nor timely extended that period under 11 NYCRR 65-3.5 (b), 11 NYCRR 65-3.6 (b), and 11 NYCRR 65-3.8 (a) (1). Following New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., MVAIC remained subject to regulatory deadlines for precludable defenses. Amendment to assert collateral estoppel was also denied because the provider was neither a party to the other proceedings nor then in privity with a party. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of MVAIC's motion.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52049(U)
Insurer prevailed
MVAIC established that the provider's first four causes of action were time-barred, but disputed receipt required a hearing on three others. The provider raised no factual issue concerning the three-year limitations period for the first four claims. For the fifth through seventh claims, competing affidavits raised an issue concerning mailing and receipt. Receipt would require dismissal with prejudice as time-barred; nonreceipt would require dismissal without prejudice as premature. MVAIC failed to establish exhaustion when those claims were complete under 11 NYCRR 65-3.15. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant MVAIC summary judgment on the first four causes of action and remitted for a CPLR 2218 hearing and a new determination on the remaining three.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52048(U)
Insurer prevailed
The provider failed to establish personal jurisdiction because it supplied no signed acknowledgment of service under CPLR 312-a. The provider mailed the summons and complaint to an out-of-state insurer, which moved before answering to dismiss under CPLR 3211 (a) (8). Service under CPLR 312-a is complete only when the signed acknowledgment is mailed or delivered to the plaintiff, as provided in CPLR 312-a (b) (1) and CPLR 306 (d). Even if service had been effective, the provider's attorney's affirmation did not establish jurisdiction under CCA 404 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's dismissal motion, expressly declining to address any other issue.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52067(U)
Insurer prevailed
An insurer establishes an EUO nonappearance defense by showing two duly demanded EUOs, two assignor nonappearances, and a timely denial. In this action for assigned no-fault benefits, the provider challenged summary judgment dismissing its complaint. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, concluded that the insurer established entitlement to summary judgment. Appearance at a duly demanded EUO is a condition precedent to policy liability under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The order granting the insurer's dismissal motion was affirmed; the provider's remaining contention lacked merit.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52052(U)
Insurer prevailed
The insurer established effective policy cancellation before the accident by proving proper mailing and timely filing with the DMV. The insurer sought summary judgment dismissing the provider's assigned no-fault claim for lack of coverage after cancellation for nonpayment of the premium. It demonstrated mailing to the insured under Vehicle and Traffic Law § 313 (1) and filing a copy with the Department of Motor Vehicles within 30 days of cancellation's effective date under Vehicle and Traffic Law § 313 (2) (a). Cancellation was effective against the assignor, who was neither the named insured nor a household member, under Vehicle and Traffic Law § 313 (3). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52047(U)
Provider prevailed
The insurer failed to establish that policy limits were exhausted when the provider's claim became complete. Under 11 NYCRR 65-3.15 and Nyack Hosp. v General Motors Acceptance Corp., the insurer therefore lacked entitlement to summary judgment. Although its adjuster denied receipt of one claim, the provider's owner's affidavit raised a presumption of timely mailing and receipt, creating a factual issue. The fee-schedule argument failed because the motion did not seek relief on that ground and offered no supporting evidence. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion and retaining CPLR 3212 (g) findings favoring the provider; exhaustion, receipt, and fee-schedule defenses remained for trial.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52035(U)
Provider prevailed
The provider's claims submitted in January 2001 were governed by the former no-fault regulations requiring compound interest. After the insurer failed to pay a settlement, a judgment entered under CPLR 5003-a awarded simple interest under 11 NYCRR 65-3.9 (a), effective April 5, 2002. The provider obtained recalculation under CPLR 5019 (a) and former 11 NYCRR 65.15 (h) (1). Following Belt Parkway Imaging, P.C. v State Wide Ins. Co., the Appellate Term, Second Department, affirmed the order granting the provider's motion because all the claims were governed by the former compound-interest regulations. The insurer's remaining contention was not properly before the court and, in any event, lacked merit.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52038(U)
Split result
Disputes over receipt of verification and the fee schedule barred summary judgment for either party. The insurer sought dismissal for failure to supply verification within 120 days under 11 NYCRR 65-3.5 (o) and for excessive charges. Its proof established timely verification requests and nonreceipt, but the provider's affidavit raised a presumption that verification had been mailed and received. The fee schedule defense also presented a factual dispute. Because the services were rendered in 2015, the insurer need not establish preservation of that defense under 11 NYCRR 65-3.8 (g) (1) (ii) and 11 NYCRR 65-3.8 (g) (2). The Appellate Term, Second Department, reversed the provider's judgment and denied its cross motion; denial of the insurer's motion remained undisturbed.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52041(U)
Split result
The insurer's uncertified police report failed to establish the out-of-state contacts asserted for forum non conveniens dismissal. The report was inadmissible hearsay under CPLR 4518 (a) and proved neither a New Jersey accident nor the assignor's Texas residence; the insurer's other exhibits listed a Staten Island residence. Dismissal under CPLR 327 (a) was therefore unwarranted. The provider likewise failed to establish summary judgment entitlement under Insurance Law § 5106 (a), showing neither an untimely denial nor a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny forum non conveniens dismissal, affirmed denial of the provider's cross motion, and remitted for determination of the insurer's remaining motion branches.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52042(U)
Split result
The insurer failed to support forum non conveniens dismissal with admissible evidence of witness hardship or grounds for another forum. The insurer argued that this assigned-benefits action belonged in New Jersey, where it asserted the accident occurred. Under CPLR 327 (a), the record did not establish that substantial justice required another forum. The provider also failed to establish summary judgment entitlement under Insurance Law § 5106 (a): its proof showed neither an untimely denial nor a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny forum non conveniens dismissal, affirmed denial of the provider's cross motion, and remitted for determination of the insurer's remaining motion branches.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52055(U)
Insurer prevailed
The insurer established defenses based on missing verification, fee-schedule payment, and EUO nonappearance, warranting dismissal of all claims. Four claims were denied because requested verification was not supplied within 120 days under 11 NYCRR 65-3.5 (o); the provider raised no factual issue. For two other claims, the insurer established proper payment under the workers' compensation fee schedule, defeating recovery of the unpaid portions. The remaining claims were dismissed on EUO nonappearance proof that the provider failed to rebut. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52064(U)
Insurer prevailed
An EUO nonappearance denial need not list the dates of the EUOs the provider failed to attend. The provider appealed summary judgment dismissing its assigned no-fault benefits complaint, arguing that the insurer's denial form was deficient because those dates were omitted. The Appellate Term, Second Department, rejected the argument under 11 NYCRR 65-3.4 (c) (11) and the prescribed NF-10 form: if the Department of Financial Services intended to require the scheduled dates, it would have said so. The order granting the insurer's motion was affirmed.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52074(U)
Insurer prevailed
A reargument motion must identify overlooked or misapprehended facts or law, rather than merely challenge a prior discretionary ruling. Under CPLR 2221 (d) (2), reargument cannot introduce new facts or provide successive opportunities to relitigate decided issues or present different arguments. The provider's sparse papers appeared simply to contend that the Civil Court erred in exercising its discretion to vacate MVAIC's default. The decision also recited the reasonable-excuse and potentially-meritorious-defense requirements of CPLR 5015 (a) (1). The Appellate Term, Second Department, reversed the order granting reargument and denying vacatur, denied leave to reargue, and reinstated the order vacating MVAIC's default.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52073(U)
Insurer prevailed
MVAIC established that the provider commenced its action after the three-year statute of limitations expired. The provider obtained summary judgment for assigned no-fault benefits, and MVAIC appealed the denial of its cross motion for summary judgment dismissing the complaint. MVAIC's motion papers established untimeliness, and the provider failed to raise a factual issue in opposition. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion, and granted MVAIC's cross motion dismissing the complaint, expressly reaching no other issue.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52071(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against a known vehicle owner before seeking no-fault benefits from MVAIC. The assignor knew the identity of the owner of the vehicle the assignor was driving at the time of the accident. Following Hauswirth v American Home Assur. Co., the provider, as assignee, had to exhaust remedies against that owner before seeking MVAIC payment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52066(U)
Insurer prevailed
The provider failed to show exhaustion of remedies against a known vehicle owner before seeking assigned no-fault benefits from MVAIC. The assignor was a passenger in the vehicle at the time of the accident and knew the owner's identity. Following Hauswirth v American Home Assur. Co., the provider was required to exhaust remedies against that owner before seeking relief from MVAIC, but did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52061(U)
Insurer prevailed
A defendant seeking to open an excusable answering default must show a reasonable excuse and a potentially meritorious defense. In this assigned no-fault action, the provider sought a default judgment, while MVAIC cross-moved to open its default and compel acceptance of a late answer. Applying CPLR 5015 (a) (1), the Appellate Term, Second Department, found no improvident exercise of discretion in accepting MVAIC's excuse. MVAIC also showed a potentially meritorious lack-of-coverage defense that the alleged injuries did not arise from an insured incident. The order denying the provider's motion and granting MVAIC's cross motion was affirmed.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52059(U)
Split result
The insurer established EUO nonappearance for some claims, but its EUO request was untimely for the remaining claims. For services rendered from September 28, 2015 through February 3, 2016, the insurer proved timely mailing of initial and follow-up EUO letters, the provider's nonappearance on both dates, and timely denials on that ground. For the remaining claims, the first scheduling letter was sent more than 30 days after receipt, rendering the request a nullity as to those claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing claims for that service period and affirmed denial of the insurer's cross motion as to the remaining claims.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52058(U)
Provider prevailed
MVAIC's summary judgment motion based on outstanding verification was denied, and the provider's cross motion for summary judgment was granted. The Appellate Term, Second Department, affirmed the resulting judgment for assigned no-fault benefits for the reasons set forth in Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52028(U)
Insurer prevailed
The provider's action was untimely because its claim accrued 30 days after the insurer received the bill, a showing the provider did not rebut. The insurer moved to dismiss under CPLR 3211 (a) (5), and the action fell outside the limitations period in CPLR 213 (2). The provider's collateral-estoppel argument failed because the Civil Court order on which it relied denied an insurer motion and was not a conclusive final determination. A remaining contention was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed the order dismissing the complaint on the insurer's statute-of-limitations defense.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52029(U)
Provider prevailed
The insurer's EUO requests were nullities as to the claims because its initial request was sent more than 30 days after receipt. In this assigned no-fault benefits action, the insurer moved for summary judgment based on the provider's EUO nonappearance, and the provider cross-moved for summary judgment. The Civil Court denied the insurer's motion and granted the provider's cross motion. Rejecting the insurer's sole appellate contention, the Appellate Term, Second Department, concluded that the late initial request defeated the asserted EUO defense and affirmed the resulting judgment for the provider.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52031(U)
Split result
The insurer's IME no-show defense failed on nine claims because the first IME was scheduled beyond 30 days after receipt. Under 11 NYCRR 65-3.5 (d), the insurer did not establish summary judgment entitlement on those claims; its remaining argument was raised for the first time on appeal. Its motion did not address the other three claims. The provider also failed to prove either denial outside the requisite 30-day period or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion, and denied that motion, leaving denial of the insurer's summary judgment motion undisturbed.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52034(U)
Provider prevailed
The insurer failed to prove its billing defenses and submitted an inadmissible IME report to support its medical-necessity defense. For CPT code 99203, the insurer did not show that another provider had billed for, and already received payment for, the services. For CPT code 97039, a need for more information required a verification request, following Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co.; the insurer did not demonstrate any such request. The provider also preserved its objection that the IME report was inadmissible. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment dismissing the claims under those two codes and the portions denied for lack of medical necessity.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52037(U)
Insurer prevailed
A sua sponte stay of no-fault interest accrual is not appealable as of right under CCA 1702 (a) (2). After an unpaid settlement resulted in a judgment under CPLR 5003-a, the provider moved under CPLR 5019 (a) to recalculate interest. The Civil Court granted correction but sua sponte stayed interest accrual from July 26, 2010 through February 14, 2017. That portion of the order addressed no demand for relief made on notice. The Appellate Term, Second Department, dismissed the provider's appeal and declined leave to appeal. Under Sholes v Meagher and CCA 1702 (a) (3), the provider could have moved to vacate the stay and appealed a denial as of right, but had not done so.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52039(U)
Insurer prevailed
A sua sponte stay of no-fault interest accrual is not appealable as of right under CCA 1702 (a) (2). After an unpaid settlement resulted in a judgment under CPLR 5003-a, the provider moved under CPLR 5019 (a) to recalculate interest. The Civil Court granted correction but sua sponte stayed interest accrual from April 9, 2008 through February 22, 2017. That portion of the order addressed no demand for relief made on notice. The Appellate Term, Second Department, dismissed the provider's appeal and declined leave to appeal. Under Sholes v Meagher and CCA 1702 (a) (3), the provider could have moved to vacate the stay and appealed a denial as of right, but had not done so.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52043(U)
Insurer prevailed
A judgment judicially noticed on appeal barred the provider's reimbursement claims through collateral estoppel. The insurer sought summary judgment based on a default declaratory order and a later trial decision. The default order did not name the provider, and the insurer failed to establish privity with the assignor. A trial decision without an entered order or judgment lacks the conclusive character required for collateral estoppel. Although the insurer submitted no judgment, the Appellate Term, Second Department, judicially noticed an entered judgment predating the Civil Court's order that barred the provider's claims concerning the accident under policies naming the assignor as an insured or claimant. It affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52044(U)
Insurer prevailed
A judgment judicially noticed on appeal barred the provider's reimbursement claims through collateral estoppel. The insurer sought summary judgment based on a default declaratory order and a later trial decision. The default order did not name the provider, and the insurer failed to establish privity with the assignor. A trial decision without an entered order or judgment lacks the conclusive character required for collateral estoppel. Although the insurer submitted no judgment, the Appellate Term, Second Department, judicially noticed an entered judgment predating the Civil Court's order that barred the provider's claims concerning the accident under policies naming the assignor as an insured or claimant. It affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52046(U)
Provider prevailed
The provider's motion to recalculate no-fault interest at a compound rate under former 11 NYCRR 65.15 (h) (1) was granted. The Appellate Term, Second Department, affirmed for the reasons in the companion appeal, G.N.S. Med. Supplies, Inc. v Country Wide Ins. Co., decided the same day, No. 2018-630 Q C. The insurer's remaining contention was not properly before the court and, in any event, lacked merit.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52050(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction under CPLR 3211 (a) (8) was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal, Domny Med. Servs., P.C. v First Acceptance Ins. Co., Inc., decided the same day, No. 2018-1104 K C.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52051(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for either scheduled EUO. In this action to recover assigned no-fault benefits, the Civil Court granted the provider's summary judgment motion and denied the insurer's cross motion to dismiss the complaint. The insurer proved timely mailing of the initial and follow-up scheduling letters, nonappearance on both dates, and timely denial on that ground. The provider raised no triable issue. The Appellate Term, Second Department, reversed, denied the provider's motion, and granted the insurer's cross motion.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52053(U)
Insurer prevailed
The provider's complaint was dismissed because it failed to show compliance with an order requiring a Workers' Compensation Board application. The prior order held the insurer's summary judgment cross motion in abeyance for 90 days and conditioned dismissal on failure to file proof of an application. The provider did not demonstrate a proper application to determine the parties' rights under the Workers' Compensation Law. Its argument that the two-year limit in Workers' Compensation Law § 28 made a compensation claim untimely was unavailing, particularly because the insurer's employment-related denial was concededly timely. The Appellate Term, Second Department, affirmed summary judgment for the insurer and denial of the provider's cross motion.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52054(U)
Insurer prevailed
The provider's motion to vacate default summary judgment was denied on appeal because it failed to show a meritorious defense. Applying CPLR 5015 (a) (1)'s requirements of a reasonable excuse and a meritorious defense to the insurer's motion, the Appellate Term, Second Department, reversed the vacatur order and reinstated the default order dismissing the complaint.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52056(U)
Insurer prevailed
The provider's motion to vacate default summary judgment dismissing its complaint was denied for lack of a reasonable excuse. The Appellate Term, Second Department, affirmed, finding no improvident exercise of discretion in that determination. It recited CPLR 5015 (a) (1)'s requirement of both a reasonable excuse for failing to oppose the insurer's motion and a meritorious defense, without describing the proffered excuse.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52057(U)
Split result
The provider's premature judgment was vacated, but its summary judgment order survived because the insurer lacked a reasonable default excuse. The provider entered judgment before the order's 60-day waiting period expired. The insurer later obtained a declaratory ruling that the collision was intentional and moved to vacate both the judgment and underlying order and dismiss the complaint. Under CPLR 5015 (a) (1), its conclusory assertion that it was preparing the declaratory action did not excuse failing to oppose summary judgment. The Appellate Term, Second Department, modified the order to deny vacatur of the summary judgment order and dismissal, while affirming judgment vacatur; it did not reach potential merits or the parties' remaining arguments.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52065(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the complaint for the provider's EUO nonappearance was granted and affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion. It relied on proof supporting presumed timely mailing of EUO scheduling letters and the denial form and establishing nonappearance, without describing that proof.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52068(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted and affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's summary judgment motion. It relied on its conclusions that the insurer established timely mailing of EUO scheduling letters and the provider's failure to attend duly scheduled EUOs.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52069(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion dismissing the complaint for EUO nonappearance was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal Omphil Care, Inc. v GEICO Ins. Co., decided the same day, No. 2018-1604 K C.
Appellate Term, Second Department
Dec 13, 2019
2019 NY Slip Op 52070(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion dismissing the complaint for EUO nonappearance was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal Omphil Care, Inc. v GEICO Ins. Co., decided the same day, No. 2018-1604 K C.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51964(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the out-of-state insurer through an attorney affirmation lacking personal knowledge. The insurer established grounds for dismissal under CPLR 3211 (a) (8); the provider failed to show jurisdiction under CCA 404 (a). Compelled-arbitration decisions did not establish judicial jurisdiction. The provider's CPLR 3211 (d) discovery argument was unpreserved and lacked tangible supporting evidence. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Because the provider's appellate arguments appeared frivolous and did not address potentially controlling prior decisions, it also directed submissions on possible sanctions against the provider's firm and appellate attorney under 22 NYCRR 130-1.1 (c) (1), leaving sanctions undecided.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51961(U)
Provider prevailed
The insurer's follow-up EUO letter was untimely because it was mailed more than 10 days after the assignor's first nonappearance. The insurer obtained summary judgment dismissing the provider's assigned no-fault benefits complaint based on the assignor's failure to attend scheduled EUOs. The record established that the follow-up scheduling letter did not satisfy the timing requirement of 11 NYCRR 65-3.5 (b). Following Parisien v 21st Century Ins. Co., the Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51965(U)
Insurer prevailed
The provider's attorney affirmation lacked personal knowledge and failed to establish long-arm jurisdiction over the out-of-state insurer. The insurer preserved its jurisdictional defense under CPLR 3211 (e); conversion to summary judgment was proper because both parties pursued that course. Its affidavits established lack of jurisdiction, while the provider failed to show jurisdiction under CCA 404 (a). Decisions concerning compelled arbitration did not establish judicial personal jurisdiction. The provider's CPLR 3212 (f) discovery argument was first raised on appeal and lacked tangible evidence of a jurisdictional predicate in any event. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51969(U)
An order that fails to decide a branch of a motion does not permit an appeal from that omission. The insurer sought summary judgment based on nonreceipt of claims and exhaustion of policy limits. The Civil Court denied the nonreceipt branch and the provider's cross motion, finding a factual dispute over receipt, but did not address exhaustion. The insurer's sole appellate argument challenged that omission. The Appellate Term, Second Department, dismissed the appeal because the exhaustion branch remained pending and undecided; it did not determine whether the policy limits had been exhausted.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51967(U)
Insurer prevailed
The insurer proved timely mailing of the IME scheduling letters and denials and the assignor's failure to attend the scheduled IMEs. The provider appealed the grant of summary judgment dismissing its assigned no-fault benefits complaint and the denial of its cross-motion branch seeking discovery responses. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. to mailing and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. to nonappearance, the Appellate Term, Second Department, rejected the provider's challenges to the insurer's proof. It affirmed the order, insofar as appealed from, including dismissal and denial of discovery relief; the provider's remaining contention lacked merit.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51968(U)
Insurer prevailed
The provider's renewal affidavit failed to identify the insurer to which it claimed to have resubmitted the bills. The insurer obtained summary judgment based on nonreceipt, and the Civil Court noted that the bills were addressed to MVAIC. On renewal, the provider's owner asserted resubmission to an insurance carrier without identifying that carrier. The insurer's litigation claims specialist established nonreceipt, and the owner's affidavit did not demonstrate mailing to the defendant insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which adhered on renewal to dismissal of the complaint. The provider's remaining arguments lacked merit.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51974(U)
Provider prevailed
The insurer's severance argument was moot because it presented no argument against summary judgment on the cause of action it sought to sever. The provider sued for assigned no-fault benefits on multiple causes of action. The insurer moved to sever the first, while the provider cross-moved for summary judgment. On appeal, the insurer challenged denial of severance but offered no basis to disturb the grant of summary judgment on the first cause of action. With that relief undisturbed, the severance contention was moot. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's summary judgment on the first cause of action and the denial of severance intact.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51975(U)
Provider prevailed
The insurer's severance argument was moot because it presented no argument against summary judgment on the cause of action it sought to sever. The provider sued for assigned no-fault benefits on multiple causes of action. The insurer moved to sever the first, while the provider cross-moved for summary judgment. On appeal, the insurer challenged denial of severance but offered no basis to disturb the grant of summary judgment on the first cause of action. With that relief undisturbed, the severance contention was moot. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's summary judgment on the first cause of action and the denial of severance intact.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51979(U)
Insurer prevailed
The insurer's attorney affirmation established the provider's failure to appear for the scheduled EUOs. In this assigned no-fault benefits action, the provider moved for summary judgment, and the insurer cross-moved to dismiss based on EUO nonappearance. The affirmation came from the attorney who was to conduct the EUOs and was sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The record also supported the Civil Court's determination that the scheduling letters and denials were timely and properly mailed. 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
Dec 6, 2019
2019 NY Slip Op 51980(U)
Insurer prevailed
The insurer's proof raised a presumption that its denial-of-claim forms had been properly mailed. The provider's sole appellate challenge to the insurer's summary judgment motion concerned the sufficiency of that mailing proof. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, rejected the challenge and affirmed the order granting the insurer summary judgment dismissing the assigned no-fault benefits complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Dec 6, 2019
2019 NY Slip Op 51981(U)
Insurer prevailed
The insurer's failure to complete counsel substitution under CPLR 321 (b) did not justify a trial default on this record. Its former law firm had disbanded. Before trial, replacement counsel submitted the insurer's consent affidavit and a notice of appearance, but the Civil Court refused to sign an order to show cause seeking substitution or a stay. A Supreme Court substitution order followed shortly after the default. In these circumstances, the Appellate Term, Second Department, opened the default in the interests of substantial justice. Under CPLR 5511, it dismissed the appeal except as to review of the contested vacatur motion, reversed the judgment insofar as reviewed, vacated the denial order, and granted the insurer's motion.
Trial court, Second Department
Dec 6, 2019
2019 NY Slip Op 29375
Provider prevailed
The insurer's fee schedule defense was precluded because it neither denied the claim nor sought verification within 30 days. The District Court, Suffolk County, granted the provider's cross motion for summary judgment and denied the insurer's motion to dismiss as moot. The court held 11 NYCRR 65-3.8 (g) (1) (ii) invalid under article III, § 1 of the New York Constitution because it removed fee schedule defenses from the preclusion rule established by Insurance Law § 5106 (a). An administrative agency could not circumvent the legislature's 30-day deadline to pay or deny claims by regulation. Consequently, the defense that the provider billed above the workers' compensation medical fee schedule was unavailable.
Trial court, First Department
Dec 2, 2019
2019 NY Slip Op 29381
Split result
An insurer may seek post-EUO verification of a pharmacy's eligibility for no-fault reimbursement upon a showing of good cause. The Civil Court, New York County, upheld requests investigating licensing violations and kickbacks under Mallela, Carothers and 11 NYCRR 65-3.16 (a) (12). It granted the insurer summary judgment dismissing seven pharmacy actions and one claim in another without prejudice as premature for outstanding verification. The other claim survived because medical necessity remained disputed. The pharmacy obtained summary judgment in two actions because untimely follow-up requests under 11 NYCRR 65-3.6 (b) failed to toll the denial period. The physical therapy provider's action was dismissed with prejudice because its failure to supply properly requested post-EUO records authorized denial under 11 NYCRR 65-3.8 (b) (3).
Trial court, Second Department
Dec 2, 2019
2019 NY Slip Op 51932(U)
Insurer prevailed
A declaratory judgment entered on default may bar a provider's no-fault action under res judicata. The insurer sought reargument under CPLR 2221 (d) (2) after denial of its summary judgment motion based on EUO nonappearance. The Civil Court, Kings County, granted reargument, vacated its prior decision, and concluded that the Supreme Court declaration barred the provider's action. Although the declaration did not mention EUOs, it referred to the insurer's verified complaint, which expressly sought relief based on EUO nonappearance. Its language sufficiently determined that the provider failed to satisfy a condition precedent. Following Ava Acupuncture, P.C. v NY Central Mut. Fire Ins. Co., entry on default did not defeat preclusive effect.
