Appellate Division, First Department
Mar 3, 2020
2020 NY Slip Op 01466
Insurer prevailed
The master arbitrator's award was arbitrary because it ignored precedent treating IME nonappearance as voiding the policy from inception. The provider sought benefits as assignee of a claimant who failed to attend duly scheduled IMEs. Following Matter of Global Liberty Ins. Co. of N.Y. v Top Q. Inc. and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Division, First Department, reversed the order denying the insurer's petition and granted vacatur of the master arbitration award.
Appellate Term, First Department
Mar 23, 2020
2020 NY Slip Op 50359(U)
Provider prevailed
MVAIC's objections to compelled discovery were unpreserved because it ignored the demands and raised the objections only on appeal. Under CPLR 3122 (a) and CPLR 3133 (a), failure to object within 20 days limits appellate review to privilege under CPLR 3101 or palpable impropriety. When the provider moved to compel several months later, MVAIC's sole opposition was that discovery was moot; it did not argue privilege or palpable impropriety below. The Appellate Term, First Department, declined to consider MVAIC's new appellate objections and affirmed the order, insofar as appealed from, granting the provider's motion to compel discovery.
Appellate Term, First Department
Mar 23, 2020
2020 NY Slip Op 50361(U)
Provider prevailed
The provider's motion to compel discovery from MVAIC was upheld on appeal. The Appellate Term, First Department, affirmed the order, insofar as appealed from, for the reasons stated in Precision Chiropractic, PC v MVAIC, the companion appeal decided the same day, No. 20-002.
Appellate Term, First Department
Mar 23, 2020
2020 NY Slip Op 50360(U)
Provider prevailed
MVAIC's deficient discovery responses warranted an order compelling limited discovery concerning its defenses. A trial court has broad discretion to supervise discovery, and its determinations are not disturbed absent demonstrated abuse. The Appellate Term, First Department, found that the Civil Court properly exercised that discretion because MVAIC's responses to interrogatories and a notice for discovery and inspection were deficient. MVAIC's arguments that the demands were overbroad, unduly burdensome, and otherwise improper were raised for the first time on appeal, and review was declined. The order, insofar as appealed from, granting the provider's motion to compel was affirmed.
Appellate Term, Second Department
Mar 13, 2020
2020 NY Slip Op 50401(U)
Split result
The insurer failed to establish a reasonable excuse for default by asserting only that it had no record of receiving process. The process server's affidavit showed service on an authorized general agent under CPLR 311 (a) (1). The insurer supplied no affidavit from that agent addressing receipt or handling procedures and no explanation for the omission. The Appellate Term, Second Department, affirmed denial of vacatur under CPLR 5015 (a) (1) without reaching a potentially meritorious defense. It separately reversed the provider's costs judgment under 22 NYCRR 130-1.1: similar defaults alone did not establish frivolous conduct, and Civil Court gave no reasons supporting the award or evidence of actual expenses.
Appellate Term, Second Department
Mar 13, 2020
2020 NY Slip Op 50405(U)
Provider prevailed
The insurer's motion to dismiss the provider's complaint for laches based on delay in prosecution was denied on appeal. The Appellate Term, Second Department, reversed for the reasons stated in Rockaway Med. & Diagnostic, P.C. v State Farm Mut. Ins. Co. and remitted the matter for determination of the motion's remaining branches, which Civil Court had deemed moot.
Appellate Term, Second Department
Mar 13, 2020
2020 NY Slip Op 50404(U)
Provider prevailed
A judgment rendered by Civil Court cannot be vacated by Supreme Court. The provider obtained a judgment following an unopposed summary judgment motion. A later default declaratory judgment in Supreme Court declared no entitlement to benefits for three assignors' claims based on EUO nonappearances and purported to vacate related judgments. Civil Court vacated those portions of its judgment despite finding no excusable default, believing itself constrained by the declaration. The Appellate Term, Second Department, reversed and denied that branch of the insurer's vacatur motion because relief generally must be sought from the court that rendered the judgment. It noted that the declaratory judgment nevertheless permanently stayed enforcement of those portions.
