Appellate Division, First Department
Jun 25, 2020
2020 NY Slip Op 03611
Insurer prevailed
The denial of the claimant's lost-wage claim was rational, and an untimely employment contract was properly excluded. No-fault and tax forms conflicted as to the claimant's employer, job title, employment relationship, pay rate, payment frequency, last workday, and income. Testimony at arbitration and an earlier deposition also conflicted. The no-fault arbitrator's credibility determinations were discretionary, and the arbitrator could refuse an employment contract previously requested but not submitted before evidence closed. The master arbitrator properly considered only the arbitration record. The Appellate Division, First Department, affirmed the order denying the claimant's CPLR article 75 petition to vacate and granting the respondents' application to confirm the master arbitration award.
Appellate Term, Second Department
Jun 26, 2020
2020 NY Slip Op 50749(U)
Split result
A workers' compensation defense is precluded by an untimely denial, requiring a threshold timeliness determination before a stay. The insurer raised an employment-related coverage issue for the Workers' Compensation Board, which has primary jurisdiction under the Workers' Compensation Law. The Appellate Term, Second Department, upheld holding the first four causes of action in abeyance but required a framed issue hearing to determine receipt and denial timeliness for the fifth claim. A timely denial would permit holding that claim in abeyance; an untimely denial would preclude the defense and permit consideration of the provider's summary judgment request. The order was modified to hold the provider's motion in abeyance rather than deny it and to remit the fifth-claim stay request for redetermination.
Appellate Term, Second Department
Jun 18, 2020
2020 NY Slip Op 50741(U)
Insurer prevailed
The insurer's EUO notices were sufficient because the initial letter identified the assignor, accident date, and file number. The District Court had found the notices defective for failing to specify individual claims. The initial request tolled payment or denial deadlines for previously submitted claims involving the same provider, assignor, and accident if timely as to each claim, and for claims received afterward but before two EUO nonappearances breached a policy condition. The insurer proved proper mailing, the provider's nonappearances, and timely denials; the provider raised no triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50735(U)
Insurer prevailed
The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of service by mail. The provider obtained a default judgment after alleging service under CPLR 312-a, but its papers contained no acknowledgment of receipt. The insurer cross-moved, in effect, for summary judgment based on failure to serve within 120 days under CCA 411. Proper service was required for a default judgment under CPLR 3215 (f), and the missing acknowledgment defeated jurisdiction under CPLR 312-a. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's default motion, granted the insurer's cross motion, and remitted for entry of judgment dismissing the complaint without prejudice.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50734(U)
Provider prevailed
Laches does not provide a basis to dismiss a provider's action to recover assigned no-fault benefits. The insurer sought dismissal based on the provider's delay in prosecuting the action. Civil Court, Queens County, granted that branch of the insurer's motion and deemed the remaining branches moot. The Appellate Term, Second Department, reversed the order and denied dismissal on laches grounds, relying on Arroyo v Board of Educ. of City of NY. It remitted the matter for determination of the remaining branches of the insurer's motion.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50730(U)
Split result
The insurer failed to establish its rescission defense in either action, and the provider failed to prove that the denials were untimely. In two assigned no-fault actions, Pennsylvania law's applicability was uncontested. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, retroactive rescission does not defeat the rights of innocent third parties injured through no fault of their own. The insurer did not establish that the assignor lacked that protection. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the provider also failed to establish its prima facie case because it did not prove untimely denials. The Appellate Term, Second Department, consolidated the appeals and modified each order to deny the insurer's cross motion, otherwise affirming the denial of the provider's motions.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50725(U)
Insurer prevailed
The insurer established retroactive rescission of the automobile policy under Pennsylvania law, defeating the provider's coverage claim. The applicability of Pennsylvania law was uncontested on appeal. After the assignor's EUO, the insurer determined that the assignor lived and garaged the vehicle in New York despite contrary statements in the policy application. Its litigation representative's affidavit established mailing of the rescission letter and refund check, and the provider failed to rebut the showing of compliance with Pennsylvania law. Following Delta Diagnostic Radiology, P.C. v Infinity Group, the insurer did not have to establish the underlying reasons for rescission or prove a material false statement. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50731(U)
Insurer prevailed
The insurer established retroactive policy rescission under Pennsylvania law through proof of mailing the rescission letter and refund check. After the assignor's EUO, the insurer determined that the insured lived and garaged the vehicle in New York despite policy application statements identifying Pennsylvania. Pennsylvania law's applicability was uncontested. The litigation representative's affidavit established mailing, and the provider failed to rebut compliance with Pennsylvania rescission law. Following Delta Diagnostic Radiology, P.C. v Infinity Group, the insurer did not have to prove a material false statement or establish the underlying reasons for rescission. The Appellate Term, Second Department, affirmed the grant of the insurer's cross motion dismissing the complaint and denial of the provider's motion, declined to consider arguments first raised on appeal, and passed on no other issue.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50729(U)
Split result
The insurer failed to exclude innocent-third-party protection from rescission, and the provider failed to establish an untimely denial. Both parties sought summary judgment on assigned no-fault claims under uncontested Pennsylvania law. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, retroactive rescission cannot defeat the rights of innocent third parties injured through no fault of their own. The insurer's papers did not establish that the assignor lacked that protection. The provider also failed to prove that the insurer had not denied the claims within the requisite period, leaving its prima facie case unestablished under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving both motions denied.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50726(U)
Provider prevailed
The insurer failed to establish that the assignor was not an innocent third party protected from retroactive rescission under Pennsylvania law. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment based on rescission of the automobile policy. Pennsylvania law's applicability was uncontested. Under 40 Pa Cons Stat §§ 991.2002, 991.2004 and Erie Ins. Exch. v Lake, an insurer may rescind an automobile policy as to an insured who materially misrepresented facts, but not as to innocent third parties injured through no fault of their own. The insurer's papers did not establish that the assignor fell outside that protection. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion.
Appellate Term, Second Department
Jun 12, 2020
2020 NY Slip Op 50732(U)
Insurer prevailed
The provider failed to establish a reasonable excuse for serving late opposition papers to the insurer's summary judgment motion. The motion sought dismissal on res judicata grounds based on a declaratory judgment entered on default. Civil Court, Kings County, declined to consider opposition served after the stipulated briefing deadline and granted the insurer's motion. The provider then sought vacatur under CPLR 5015 (a). The Appellate Term, Second Department, affirmed the denial of vacatur because the calendar clerk's explanation of law office failure was insufficient. Vacatur required both a reasonable excuse and potentially meritorious opposition; the court found it unnecessary to determine whether the provider had established potentially meritorious opposition.
Appellate Term, Second Department
Jun 5, 2020
2020 NY Slip Op 50686(U)
Insurer prevailed
The provider's default judgment was vacated because its mailed motion gave the insurer less than the required 13 days' notice. Under CPLR 2103 (b) (2) and CPLR 2214 (b), improper notice excused the insurer's default on the motion and deprived Civil Court, Kings County, of jurisdiction, rendering the default order and judgment nullities. The insurer also demonstrated an excusable default and a meritorious defense: a Supreme Court, New York County, declaratory judgment conclusively determined that the insurer owed no reimbursement for claims arising from the accident and that the policy was void as to that accident. The Appellate Term, Second Department, affirmed vacatur and summary judgment dismissing the complaint for the insurer, without reaching the remaining arguments.
Appellate Term, Second Department
Jun 5, 2020
2020 NY Slip Op 50687(U)
An insurer's expert may not be precluded for untimely disclosure without intentional or willful nondisclosure and prejudice. At a nonjury trial limited to medical necessity, Civil Court, Kings County, precluded the insurer's expert and entered judgment for the provider because the insurer had no other witnesses. CPLR 3101 (d) (1) (i) sets no specific deadline for expert disclosure and does not mandate preclusion merely for noncompliance. The provider was not prejudiced: the witness authored the peer reviews supporting the denials, was identified in the denial forms, and the report accompanied the insurer's summary judgment motion. The Appellate Term, Second Department, reversed and remitted for a new trial limited to medical necessity, without reaching the insurer's other argument.
Trial court, Second Department
Jun 17, 2020
2020 NY Slip Op 20137
Split result
Timely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient. Following Shara Acupuncture, P.C., the Civil Court, Kings County, denied both sides summary judgment on the first three causes of action. The insurer proved timely denials but failed to prove mailing of IME notices or both nonappearances; the provider failed to show the denials conclusory, vague, or meritless as a matter of law. On the fourth cause, conceded liability yielded a corrected $240 balance plus interest at 2% monthly from commencement under 11 NYCRR 65-3.9 (c). The provider received summary judgment on attorney's-fee liability only on the fifth cause under 11 NYCRR 65-4.6 (d); the remaining claims continued.
Trial court, First Department
Jun 15, 2020
2020 NY Slip Op 20136
Impermissible fee splitting alone does not establish a Mallela licensing violation warranting denial of no-fault benefits. The Civil Court, Bronx County, denied both sides' summary judgment motions in their entirety. All provider owners were licensed, but unequal ownership raised factual issues for trial about control over services beyond the majority owner's license under 11 NYCRR 65-3.16 (a) (12). The insurer's IME evidence of unnecessary treatment was rebutted by the treating chiropractor's affidavit, creating a medical-necessity issue. Its fee-schedule defense under 11 NYCRR 65-3.8 (g) (1) lacked an affidavit from someone familiar with coding and schedules; counsel's affirmation was insufficient. The provider's cross motion failed because it supplied neither a biller's mailing affidavit nor the mailing date or proof of mailing.
Trial court, Second Department
Jun 1, 2020
2020 NY Slip Op 50652(U)
Split result
A provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e). The Civil Court, Kings County, granted the insurer's summary judgment cross motion dismissing bills 1-6, 8, and 10-11 for EUO nonappearance, finding locations about 25 miles from the treatment site reasonably convenient and the denials timely. It granted the provider summary judgment on bill 7 because the denial was untimely and on bill 9 because IME mailing and nonappearance were not established. Pre-claim IME requests did not toll the payment deadline, although an EUO request tolled bill 9's deadline. The court left open whether denials must list missed EUO dates.
