Appellate Term, Second Department
Apr 24, 2020
2020 NY Slip Op 50457(U)
Split result
The insurer failed to prove effective policy cancellation because it lacked admissible proof of timely filing with the DMV. The assignor was neither the named insured nor a member of the insured's household. Under Vehicle and Traffic Law § 313 (2) (a) and (3), the insurer had to demonstrate filing of the cancellation notice within 30 days of its effective date. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion. It affirmed denial of the provider's cross motion because the provider failed to establish an untimely denial or a timely denial that was conclusory, vague or legally meritless under Insurance Law § 5106 (a).
Appellate Term, Second Department
Apr 24, 2020
2020 NY Slip Op 50459(U)
Insurer prevailed
The provider's statutory interest was tolled during its unreasonable delay between discovery responses and filing a notice of trial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, tolling interest from March 24, 2003 to July 13, 2017. Under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d), interest in a pending no-fault action accumulates unless the applicant unreasonably delays the proceeding. The provider argued that the insurer caused the delay by failing to answer its discovery demands. The appellate court found that contention unsupported by the record and, in any event, without merit.
Appellate Term, Second Department
Apr 16, 2020
2020 NY Slip Op 50431(U)
Insurer prevailed
A provider's election to arbitrate binds its claims for the same assignor's injuries from the same accident, even against a different entity. The provider sued a transit authority for assigned no-fault benefits after previously arbitrating claims against an insurer. The District Court denied the transit authority's motion because the arbitrated claims had been asserted against a different defendant. Applying Roggio v Nationwide Mut. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the transit authority summary judgment dismissing the complaint against it. The initial arbitration election bound the provider notwithstanding the change in the entity against which benefits were sought.
Appellate Term, First Department
Apr 13, 2020
2020 NY Slip Op 50414(U)
Insurer prevailed
An IME no-show defense does not trigger hourly attorney fees under 11 NYCRR 65-4.6 (c). The provider prevailed at trial on benefits after the insurer failed to establish that defense, but only the fee ruling was challenged. The Appellate Term, First Department, affirmed the order vacating the hourly fee award. The regulation covers only policy issues specifically enumerated on the prescribed NF-10 denial form, which do not include failure to attend an IME. The insurer's characterization of its defense did not control. Applying the standard provision in 11 NYCRR 65-4.6 (d), the court limited fees to 20 percent of the recovery, subject to the then-applicable $850 maximum.
Trial court, First Department
Apr 14, 2020
2020 NY Slip Op 50462(U)
Provider prevailed
The insurer failed to establish verification timing necessary for a declaration of no coverage based on policy violations. The Supreme Court, New York County, denied summary judgment against answering defendants and default judgment against nonappearing defendants. The record showed receipt of the claimant's NF-2 application and a later IME request, but did not establish when required verification forms were sent or returned. Under 11 NYCRR 65-3.5 (a) and (b), the insurer had 10 business days to supply verification forms and 15 business days after receiving completed forms to request further verification. The missing evidence also defeated the proof of facts required for default judgment under CPLR 3215 (f).
Trial court, First Department
Apr 7, 2020
2020 NY Slip Op 50393(U)
Split result
MVAIC established a lack of medical necessity for further acupuncture treatment but failed to establish its fee schedule defense. The provider sought assigned no-fault benefits for acupuncture services. The Civil Court, New York County, granted MVAIC summary judgment for services rendered from April 9, 2015 forward and denied summary judgment on the fee schedule defense. The IME report supplied a factual basis and medical rationale for ending treatment, and the provider submitted no doctor's affidavit meaningfully rebutting those conclusions. Following Global Liberty Ins. Co. of New York v North Shore Family Chiropractic, PC, permission to use the chiropractic fee schedule did not foreclose use of the physician fee schedule. MVAIC also failed to establish improper billing or charges exceeding permissible reimbursement.
