Appellate Division, Second Department
Jul 29, 2020
2020 NY Slip Op 04286
Provider prevailed
An insurer seeking a default declaratory judgment must establish its right to the requested declaration beyond the default and pleadings. After investigating a reported hit-and-run collision, the insurer sought a declaration that it had no duty to indemnify the insured and no-fault assignees. Although its motion supplied proof of service, default, and facts constituting the claim under CPLR 3215 (f), its submissions did not establish entitlement to the declarations sought. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying leave to enter a default judgment against the nonanswering defendants.
Appellate Division, First Department
Jul 9, 2020
2020 NY Slip Op 03876
Insurer prevailed
⚠ Criticized by State Farm Fire & Cas. Co. v Atlantic Diagnostic, L.L.C. (2024 NY Slip Op 50436(U))
Claimants' failure to sign and return EUO transcripts violates a coverage condition precedent and warrants denial of benefits. The insurer also established that the two provider defendants failed to appear for two scheduled EUOs. Its lack of proof of proper delivery of denials did not defeat the transcript-based defense. A one-day delay in issuing one provider's follow-up EUO request was an excusable technical defect under 11 NYCRR 65-3.5 (p), given the brief delay and ultimate nonappearance. The Appellate Division, First Department, reversed, granted the insurer summary judgment, denied the providers' cross motion, and declared that neither provider could collect benefits for the accident.
Appellate Division, Second Department
Jul 8, 2020
2020 NY Slip Op 03772
Provider prevailed
The provider's expert affidavit raised factual issues on medical necessity and reimbursement for a surgical device under New Jersey's fee schedule. The New Jersey provider sued for assigned no-fault benefits for services rendered there, and the parties agreed that the New Jersey schedule applied. The insurer's peer review, IME report, and medical documentation made a prima facie showing supporting dismissal. The provider's expert relied on MRI results and surgical findings to raise a medical-necessity issue and also raised an issue about device reimbursement under New Jersey Administrative Code § 11:3-29.4 (f) (8). The Appellate Division, Second Department, affirmed denial of the insurer's summary judgment motion.
Appellate Term, Second Department
Jul 10, 2020
2020 NY Slip Op 50847(U)
Split result
The insurer's letters merely reported missing documents and did not establish proper verification requests warranting dismissal. The provider sought summary judgment, and the insurer cross-moved to dismiss the action as premature. The majority found that the letters did not actually request verification from the assignor and failed to establish proper, timely requests or outstanding verification. The provider likewise failed to show that the claims were not timely denied or that timely denials were legally insufficient. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion. A partial dissent would have granted the insurer's cross motion, finding the letters sufficient and timely under 11 NYCRR 65-3.6 (b).
Appellate Term, Second Department
Jul 10, 2020
2020 NY Slip Op 50851(U)
Insurer prevailed
An unvacated default declaratory judgment can bar a provider's later no-fault action under res judicata. The provider and assignor had defaulted in a declaratory judgment action concerning the same accident. The resulting declaration stated that the declaratory judgment plaintiffs had no coverage obligation, that the policy was void as to the accident, and that reimbursement was not required because claims had not been verified. Default judgments can have res judicata effect, and a judgment for the provider would impair rights established by that declaration. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the defendant insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 10, 2020
2020 NY Slip Op 50852(U)
Insurer prevailed
The insurer's summary judgment motion based on a declaratory judgment of no coverage was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in St. Mark's Med. Health Care, PLLC v 21st Century Ins. Co., the companion appeal decided the same day, No. 2019-361 K C.
Appellate Term, Second Department
Jul 10, 2020
2020 NY Slip Op 50853(U)
Insurer prevailed
The insurer's summary judgment motion based on a declaratory judgment of no coverage was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in St. Mark's Med. Health Care, PLLC v 21st Century Ins. Co., the companion appeal decided the same day, No. 2019-361 K C.
Trial court, First Department
Jul 28, 2020
2020 NY Slip Op 50882(U)
Insurer prevailed
The provider's MVAIC claim was premature because it showed no effort to identify the striking vehicle's owner or operator from its license plate. The Civil Court, New York County, granted MVAIC summary judgment dismissing the action because reasonable identification efforts and exhaustion of remedies against the vehicle's owner were required before seeking MVAIC benefits. Coverage requests sought qualification under Insurance Law article 52, so the verification requirements of 11 NYCRR 65-3.5 did not apply. Arbitrations involving other providers did not preclude this provider's action, even though the assignments arose from the same accident and assignor. The motion was also timely under CPLR 3212 (a), having been served within 120 days after filing the notice of trial.
Trial court, First Department
Jul 8, 2020
2020 NY Slip Op 50798(U)
MVAIC's no-fault lien had priority over child-support and Medicaid liens, and the claimant and counsel were personally liable for repayment. The Supreme Court, New York County, granted MVAIC summary judgment on liability under Insurance Law § 5104 (b) because the claimant and counsel settled without notice or consent and failed to repay the lien. Counsel's notification and payment duties arose under Rules of Professional Conduct 1.15 (c) (1) and (c) (4). Independent liability defeated discharge as mere stakeholders under CPLR 1006 (f). The court directed payment of counsel's charging lien under Judiciary Law § 475 first, then MVAIC's lien with interest, then the agency liens. It denied MVAIC collection fees under State Finance Law § 18 (5) because receipt of notice starting the 90-day period was unproved.
