Appellate Division, Fourth Department
Jan 31, 2020
2020 NY Slip Op 00789
Split result
The provider's prima facie tort complaint was properly dismissed, but dismissal should have been without prejudice under CPLR 205 (a). As assignee of no-fault claims, the provider asserted a single prima facie tort cause of action and sought, among other relief, punitive damages. The insurer moved under CPLR 3211 (a) (7). The Appellate Division, Fourth Department, upheld dismissal for the reasons stated in Greater Buffalo Acc. & Injury Chiropractic, P.C. v Geico Cas. Co., which involved an identical complaint against the insurer. It declined to consider documents not considered on the motion below and modified the order to make dismissal without prejudice, otherwise affirming.
Appellate Division, First Department
Jan 23, 2020
2020 NY Slip Op 00500
Insurer prevailed
An arbitration award exceeding policy limits may be challenged with evidence first submitted when confirmation is sought. Under CPLR 7511 (b) (1) (iii), such an award exceeds the arbitrator's power. The provider argued that its claims were complete before exhaustion, but its failure to attend the requested EUO left them unverified under 11 NYCRR 65-3.15 and Nyack Hosp. v General Motors Acceptance Corp. The Appellate Division, First Department, affirmed the order remanding to Civil Court, New York County, for a hearing on whether limits were exhausted before the insurer became obligated to pay. It rejected the provider's challenge to remand authority and its appellate attorney-fee request.
Appellate Division, First Department
Jan 2, 2020
2020 NY Slip Op 00048
Provider prevailed
A prevailing provider is entitled to court-fixed attorney fees for article 75 proceedings reviewing a master arbitration award and further appeals. The provider sought additional fees for moving to modify an order denying the insurer's vacatur petition to include confirmation and for opposing the insurer's reargument motion. Under 11 NYCRR 65-4.10 (j) (4), the term court appeal encompasses CPLR article 75 proceedings, so those services warranted additional fees. The Appellate Division, First Department, modified the fee judgment, remanded for determination of reasonable fees for the article 75 proceeding and the current appeal, and otherwise affirmed.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50183(U)
Split result
The insurer failed to prove the provider lacked a required license when it distributed the medical supplies at issue. The insurer's investigator acknowledged that the provider obtained a New York City Department of Consumer Affairs license, and its claims specialist showed the supplies were furnished afterward. Prior declaratory orders concerned supplies distributed before licensing and did not support dismissal here. The Appellate Term, Second Department, modified the order to deny the licensing branch of the insurer's summary judgment motion. It affirmed denial of the provider's cross motion for failure to establish an untimely or legally deficient denial and remitted the remaining EUO nonappearance and policy-exhaustion branches for determination.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50182(U)
Provider prevailed
The insurer's summary judgment motion was denied for failure to establish the assignor's ineligibility for no-fault benefits. Its papers failed to establish lack of entitlement under Insurance Law § 5103 (a) (3). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, also finding no sufficient basis to strike CPLR 3212 (g) findings favoring the provider.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50176(U)
Provider prevailed
The insurer waived its lack-of-contacts jurisdictional defense and failed to show that its policy lacked no-fault coverage. The insurer argued that Insurance Law § 5107 did not apply to it. Civil Court nevertheless had subject matter jurisdiction under CCA 202 because the amount sought was below its monetary limit. Under CPLR 3211 (e), the answer preserved improper service but waived other personal-jurisdiction defenses by omitting lack of a jurisdictional basis for service. Even treating the argument as a coverage defense, the insurer did not establish that its policy lacked no-fault coverage. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50178(U)
Provider prevailed
The insurer's vacatur motion failed because it omitted the briefing stipulation and lacked evidentiary support for law office failure. The parties stipulated that opposition and cross motions had to be served by a specified deadline. After the insurer served its papers late, Civil Court granted the provider summary judgment on default. The insurer sought vacatur without supplying the stipulation, arguing on appeal that its contents were uncontroverted. The Appellate Term, Second Department, affirmed denial because CPLR 2214 (c) required the moving party to furnish papers necessary to deciding the motion. Independently, the insurer supplied insufficient supporting facts to establish a reasonable excuse under CPLR 2005; the court reached no other issue.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50185(U)
The insurer's appeal from denial of relief from its trial default was dismissed as academic because a permanent stay barred the action. Civil Court had rejected the insurer's excuse concerning incoming counsel's failure to provide proper proof of representation and denied the branch seeking to open the default. On appeal, the insurer submitted a Supreme Court order permanently staying benefits proceedings involving the same provider, assignor, accident and claim number. The Appellate Term, Second Department, took judicial notice of that public record in the interest of judicial economy. Because the stay prevented further proceedings, an appellate determination would have no direct effect on the parties.
Appellate Term, Second Department
Jan 31, 2020
2020 NY Slip Op 50189(U)
The insurer's consolidation appeal was dismissed because the action was no longer a viable pending action for consolidation. The insurer sought under CPLR 602 (a) to join four other actions, have an existing notice of appeal cover the joined actions and obtain acceptance of an undertaking for all of them. The Appellate Term, Second Department, dismissed the appeal after dismissing the companion appeal decided the same day, No. 2018-1857 K C. In that companion appeal, a Supreme Court order permanently staying related benefits proceedings meant an appellate determination would have no direct effect on the parties. With no viable pending action here, there was no action with which to consolidate the others.
Appellate Term, Second Department
Jan 17, 2020
2020 NY Slip Op 50067(U)
A later summary judgment order cannot establish a meritorious defense while an earlier default summary judgment order remains in effect. The provider obtained summary judgment on the insurer's default; the Civil Court subsequently granted the insurer summary judgment without first vacating the provider's award. The Civil Court then relied on that later order to vacate the default order and judgment and reinstate the insurer's award. The Appellate Term, Second Department, reversed and remitted for a new determination of the insurer's vacatur motion and requested summary judgment relief. Under CPLR 5015 (a) (1), the insurer had to show a reasonable excuse and a potentially meritorious defense. The Civil Court was required to assess the vacatur papers independently before considering summary judgment.
Appellate Term, Second Department
Jan 2, 2020
2020 NY Slip Op 50014(U)
Provider prevailed
A master arbitrator may not review factual issues de novo, weigh evidence, or resolve credibility when reviewing a no-fault award. An arbitrator awarded the provider benefits after finding its prima facie case unrebutted. The master arbitrator vacated that award based on perceived evidentiary insufficiency and ordered a new hearing. The Appellate Term, Second Department, found a rational basis for the original award and held that the master arbitrator exceeded the permissible scope of review. It affirmed the District Court's vacatur of the master award and confirmation of the original award under CPLR 7511 (b) (1) (iii) and CPLR 7510. The provider also received appellate attorney's fees under 11 NYCRR 65-4.10 (j) (4), with remittal to determine their reasonable amount.
Trial court, Second Department
Jan 20, 2020
2020 NY Slip Op 50106(U)
Split result
The insurer failed to show that the out-of-state provider was doing business in New York under Business Corporation Law § 1312 (a). The District Court, Suffolk County, denied with prejudice dismissal under CPLR 3211 (a) (3), finding that collection litigation for services rendered in New Jersey did not establish systematic New York business activity. It denied discovery on capacity as moot. The provider's summary judgment cross motion and request under CPLR 3212 (g) were also denied. The insurer's denial documents raised a factual issue concerning compliance with 11 NYCRR 65-3.8 (a) (1), and the provider failed to establish a prima facie case because its assignment identified a different accident. Each side therefore defeated the other's request for dispositive relief.
Trial court, First Department
Jan 7, 2020
2020 NY Slip Op 50011(U)
Provider prevailed
The chiropractic fee schedule's eight-unit daily limit does not apply to cupping services performed by a licensed acupuncturist. After partial summary judgment, the parties stipulated that the remaining issue was MVAIC's application of Chiropractic Fee Schedule Ground Rule 3 to fifteen bills. The Civil Court, New York County, found no authority permitting application of chiropractic ground rules to licensed acupuncturists. Using chiropractic reimbursement rates does not equate the services, and acupuncture is a distinct modality whose reimbursement is not limited by same-day chiropractic treatment. The court awarded the provider the stipulated $77.10 difference between the maximum chiropractic rate and the reduced rate MVAIC paid, plus interest.
