Appellate Division, Third Department
May 14, 2020
2020 NY Slip Op 02845
Provider prevailed
The claimant's one-week answer delay was excused because the default was not willful, no prejudice appeared, and a meritorious defense was offered. The insurer sought declaratory relief and investigation costs after denying benefits. Service under CPLR 308 (2) was valid, and default notice complied with CPLR 3215 (g). Renewal was improperly subjected to the 30-day reargument limit in CPLR 2221 (d) (3). Newly obtained medical records justified renewal under CPLR 2221 (e); nonconsensual e-filing did not warrant rejecting hard-copy opposition under 22 NYCRR 202.5-b (b) (2) (i). The Appellate Division, Third Department, reversed, denied the insurer's default motion, granted renewal/vacatur, stayed the preliminary injunction, and remitted for consideration of the claimant's opposition.
Appellate Division, Second Department
May 13, 2020
2020 NY Slip Op 02801
Insurer prevailed
The insurer proved timely EUO notices, two nonappearances by each assignor, and timely denials; the providers raised no factual issue. Office-practice affidavits established mailing, and personal-knowledge affidavits established nonappearance. Mere denial of receipt did not rebut presumed delivery, and the providers offered no evidence of mutual rescheduling. Denials mailed within 30 days of the second EUO satisfied 11 NYCRR 65-3.5 (b) and 65-3.8 (a) (1). The challenge concerning four unpaid or undenied bills failed because they were submitted more than 45 days after services under 11 NYCRR 65-1.1 (d). The Appellate Division, Second Department, affirmed summary judgment for the insurer and remitted for entry of a declaration of no payment obligation.
Appellate Division, Second Department
May 6, 2020
2020 NY Slip Op 02645
Provider prevailed
The claimant had standing because direct billing and payment rendered two no-fault assignments ineffectual, and no third assignment existed. After medical-necessity denials, the claimant paid three providers and obtained an arbitration award. The insurer sought de novo review under Insurance Law § 5106 (c), challenging standing. Under 11 NYCRR 65-3.11 (b) (2), assignees must certify that they neither received patient payment nor would pursue it. Direct billing and payment defeated those certifications for two providers; the claimant had never assigned benefits to the third. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment and CPLR 3211 (a) (3) requests and granting the claimant summary judgment on standing.
Appellate Term, Second Department
May 15, 2020
2020 NY Slip Op 50555(U)
Insurer prevailed
The insurer obtained summary judgment based on a declaratory judgment establishing the provider's ineligibility for no-fault benefits. The Civil Court had relied on a Supreme Court order granting a default judgment on liability without declaring the parties' rights. On appeal, the insurer submitted the ensuing judgment declaring that it owed the provider no benefits in any current or future proceeding because the provider was ineligible under 11 NYCRR 65-3.16 (a) (12). Taking judicial notice of that public record, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
May 8, 2020
2020 NY Slip Op 50527(U)
Insurer prevailed
The insurer was awarded summary judgment based on a declaratory judgment barring no-fault benefits for the accident. The Appellate Term, Second Department, reversed the grant of the provider's cross motion because its proof did not establish an untimely denial or a timely denial that was conclusory, vague or legally meritless. The insurer also invoked a Supreme Court declaratory judgment against the provider and assignor declaring them ineligible for benefits from the accident and permanently staying and dismissing related proceedings. Taking judicial notice in the interest of judicial economy, the appellate court awarded the insurer summary judgment dismissing the complaint under CPLR 3212 (b) and dismissed the appeal from denial of the insurer's motion as academic.
Appellate Term, Second Department
May 1, 2020
2020 NY Slip Op 50496(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
May 1, 2020
2020 NY Slip Op 50497(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
May 1, 2020
2020 NY Slip Op 50502(U)
Insurer prevailed
The provider's renewal motion failed because the cited decision applied existing law to new facts rather than changing the law. The provider sought renewal of its opposition to an order tolling no-fault statutory interest from August 9, 2002 to August 18, 2017. That order applied the unreasonable-delay exception in former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d). The provider relied on Eagle Surgical Supply, Inc. v Country-Wide Ins. Co., which declined to toll interest where the record did not clearly attribute delay to the provider. Because that decision did not establish a change in law satisfying CPLR 2221 (e) (2) and (3), the Appellate Term, Second Department, affirmed denial of renewal.
Trial court, First Department
May 27, 2020
2020 NY Slip Op 50607(U)
Provider prevailed
The insurer failed to establish compliance with verification deadlines supporting its requested declaration of no coverage. The Supreme Court, New York County, denied summary judgment against the answering defendants and default judgment against the nonappearing defendants. Although the record showed receipt of the injured claimant's NF-2 application and a later EUO request, it did not establish when verification forms were sent or returned. Under 11 NYCRR 65-3.5 (a) and (b), forms must be supplied within 10 business days after receipt of a claim, and further verification requested within 15 business days after receipt of completed forms. The missing proof also prevented a default judgment under CPLR 3215 (f).
Trial court, First Department
May 25, 2020
2020 NY Slip Op 50609(U)
Split result
A provider's unsworn interrogatory answers supplied by counsel do not comply with CPLR 3133 (b). The Civil Court, Bronx County, vacated the notice of trial under 22 NYCRR 208.17 (c) because the provider incorrectly certified discovery complete despite deficient answers and an outstanding deposition. The insurer's motion met the 20-day deadline as extended five days for mailed service and adjusted for a weekend and holiday. The court compelled further answers and a deposition under CPLR 3124, but denied striking the complaint under CPLR 3126 because the noncompliance was neither willful nor contumacious and no discovery order had been violated. It declined to rule on particular interrogatory objections because the insurer failed to explain their impropriety.
Trial court, First Department
May 21, 2020
2020 NY Slip Op 50594(U)
Split result
⚠ Reversed by Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012)
An insurer may deny claims for EUO nonappearance only where its EUO request was timely as to those claims. Applying 11 NYCRR 65-3.5 (b), the Supreme Court, New York County, reasoned that the provider should receive summary judgment on the first surgery claim because the EUO request exceeded the 15-business-day deadline. It found the request timely and sufficiently specific for the second surgery claim, supporting summary judgment for the insurer based on nonappearance. The decretal provisions stated the opposite: they granted the insurer summary judgment and declared no payment obligation on the first claim, while granting the provider summary judgment, interest and attorney fees on the second claim. The reasoning and operative disposition thus conflict as to which claim each side won.
Trial court, First Department
May 13, 2020
2020 NY Slip Op 50558(U)
Provider prevailed
The insurer's summary judgment and default judgment motion was denied because its action remained dismissed on default. The Supreme Court, New York County, had dismissed the declaratory judgment action under 22 NYCRR 202.27 after the insurer twice failed to appear at preliminary conferences. The insurer never sought vacatur, and its motion papers neither acknowledged the dismissal nor offered a reasonable excuse. The court declined to treat the motion as an implicit vacatur request. Even if it had done so, the insurer's claimed basis for believing the collision was staged rested on an unsworn, unnotarized summary report that could not support vacatur under CPLR 5015. The provider defendants therefore prevailed on the motion.
Trial court, First Department
May 7, 2020
2020 NY Slip Op 50532(U)
Provider prevailed
The insurer's investigator affidavit failed to establish a founded belief that the collision was staged. The Supreme Court, New York County, denied summary judgment against an answering provider and default judgment against the remaining properly served, nonappearing defendants. Under Central Gen. Hosp. v Chubb Grp. of Ins. Cos., the insurer needed competent proof that the injury did not arise from an insured incident. The police report was inadmissible because the officer did not witness the collision and no source's business duty to report was established. The unsigned, unnotarized EUO transcript was also inadmissible because the insurer did not establish delivery to the claimant for review under CPLR 3116 (a). The remaining facts concerning the collision's day, time and location were insufficient.
Trial court, First Department
May 4, 2020
2020 NY Slip Op 50511(U)
Provider prevailed
The insurers lacked competent proof for default judgment on EUO nonappearance and staged-collision defenses. The Supreme Court, New York County, denied default judgment under CPLR 3215 (f) and granted the moving providers leave to answer under CPLR 3012 (d) and 317. For one claimant and the claimant's assignees, missing claim and verification dates defeated proof of compliance with 11 NYCRR 65-3.5; unsigned, undated, unnotarized affidavits failed to establish mailing of EUO notices. For two other claimants and their assignees, the investigator relied on unsigned EUO transcripts without proof of delivery under CPLR 3116 (a), and conclusory allegations did not establish a founded belief of staging. The moving providers established lack of timely personal notice of the summons and potentially meritorious defenses.
