Appellate Division, Second Department
Feb 19, 2020
2020 NY Slip Op 01163
An insurer's failure to disclose a pending motion to set aside a verdict warranted vacatur of an arbitration award based on that verdict. In mandatory intercompany arbitration under Insurance Law § 5105, the opposing insurer relied on a defense verdict as res judicata but withheld the pending motion and the court's stated view that it planned to grant it. Under CPLR 7511 (b) (1) (i), that material nondisclosure constituted misconduct likely affecting the result. The Appellate Division, Second Department, affirmed vacatur for the petitioning insurer, denial of a venue change under CPLR 7502 (a) (i) for lack of supporting evidence, and denial of renewal under CPLR 2221 (e) for failure to present new facts or changed law altering the decision.
Appellate Division, Fourth Department
Feb 7, 2020
2020 NY Slip Op 00971
Insurer prevailed
The insurers' successive summary judgment motion was entertained because an intervening appeal clarified the proof required for EUO nonappearance. The prior appeal made the defense subject to preclusion and found the original timely-denial proof conclusory and unsupported by denial forms. The second motion supplied detailed affidavits and the forms, meeting the insurers' burden without a triable response. The provider's hope that discovery would uncover opposing evidence was insufficient under CPLR 3212 (f). The Appellate Division, Fourth Department, reversed, granted summary judgment declaring no obligation to pay or reimburse the subject claims, and dismissed the provider's CPLR 3124 discovery cross motion as moot.
Appellate Division, Fourth Department
Feb 7, 2020
2020 NY Slip Op 00972
Insurer prevailed
The insurers justified renewal with previously known denial evidence after intervening precedent made EUO nonappearance subject to preclusion. Earlier summary judgment motions sought declarations of no payment obligation based on the providers' EUO defaults. Under CPLR 2221 (e) (2) and (3), Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. supplied reasonable justification for not previously submitting evidence of timely, proper denials: it first imposed that requirement in the department, contrary to another department's precedent. The insurers met their summary judgment burden, and the providers raised no factual issue. The Appellate Division, Fourth Department, reversed, granted renewal and summary judgment, and declared no obligation to pay the subject claims.
Appellate Term, Second Department
Feb 28, 2020
2020 NY Slip Op 50316(U)
Provider prevailed
The insurer failed to excuse its year-long delay in correcting an answer rejected for bearing the wrong index number. The insurer timely served its initial answer, but the provider rejected it because of the incorrect index number. A default judgment followed, and the insurer did not supply a corrected answer until a year after the rejection. The Appellate Term, Second Department, affirmed denial of the motion to vacate the judgment and compel acceptance of the corrected answer. Under CPLR 5015 (a) (1), the unexplained delay defeated the required reasonable excuse, so the court did not consider the asserted medical-necessity and policy-exhaustion defenses.
Appellate Term, First Department
Feb 19, 2020
2020 NY Slip Op 50235(U)
Insurer prevailed
The insurer's affirmed peer review established that the prescribed medical supplies were unnecessary or redundant. The report supplied a factual basis and medical rationale for finding no medical necessity for a portable whirlpool, heat lamp and massager, explaining that the assignor already received physical, acupuncture and chiropractic therapy. The provider opposed summary judgment with an attorney's affirmation, a prescription and claim forms, but no medical evidence or other competent proof of necessity. That submission did not raise a triable issue. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion and dismissed the complaint.
Appellate Term, Second Department
Feb 14, 2020
2020 NY Slip Op 50229(U)
Insurer prevailed
The provider failed to establish a jurisdictional basis for serving the nonresident insurer by mail outside New York. The insurer made a prima facie showing that Civil Court lacked personal jurisdiction, asserting that it conducted no New York business, issued no policies there and had no New York agent or license. Under CCA 404, the burden shifted to the provider, with doubts resolved in favor of jurisdiction. The provider supplied only its owner's affidavit about mailing procedures and counsel's affirmation without personal knowledge, neither showing a jurisdictional basis for service. The Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (8) and denial of the provider's summary judgment cross motion without considering its other arguments.
Appellate Term, Second Department
Feb 14, 2020
2020 NY Slip Op 50231(U)
Insurer prevailed
The insurer established timely mailing of IME notices and the denial, and the assignor's failure to attend the scheduled IMEs. The provider had obtained summary judgment in its assigned no-fault benefits action, while Civil Court denied the insurer's cross motion asserting the IME no-show defense. The insurer's papers established that defense prima facie. In opposition, the provider offered an affirmation from the assignor's counsel without an assertion of personal knowledge of the facts, which failed to raise a triable issue. The Appellate Term, Second Department, reversed, denied the provider's motion and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 7, 2020
2020 NY Slip Op 50238(U)
Provider prevailed
A provider's action cannot be dismissed for laches or failure to prosecute without the 90-day demand required by CPLR 3216 (b). The insurer sought dismissal based on the provider's delay in prosecuting its assigned no-fault benefits action. Civil Court granted that branch and deemed the remaining branches moot. The insurer did not claim to have served the statutory demand to serve and file a notice of trial. Because laches supplies no alternative basis for dismissal absent that demand, the Appellate Term, Second Department, reversed, denied the laches branch and remitted the matter for determination of the remaining branches, which were no longer moot.
Trial court, First Department
Feb 5, 2020
2020 NY Slip Op 50191(U)
Split result
The insurer failed to prove payment of one bill by admissible evidence but established nonreceipt of the remaining bills. Under CPLR 3212 (b), the payment documents and counsel's affirmation lacked a supporting affidavit addressing payment procedures or personal knowledge sufficient to establish payment for services rendered January 5 through January 7, 2015. For services rendered January 12 through January 23, 2015, the claims adjuster's affidavit described personal responsibility for the file, processing practices, and a thorough review establishing nonreceipt. The provider's mailing screens, submitted only through counsel's affirmation, raised no factual issue. The Civil Court, Bronx County, denied summary judgment on the payment defense, granted it on nonreceipt, and directed trial on the remaining payment issue.
