Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50996(U)
Split result
The defendant failed to support substitution of a different entity or show that a declaratory judgment barred the provider's claims. The defendant sought amendment under CPLR 3025 (c) and dismissal on res judicata grounds based on a default declaration obtained by another entity. Its claim representative's conclusory assertion that the declaratory judgment plaintiff was the proper defendant lacked supporting evidence. Without proof that the provider sued the wrong entity, the declaration did not establish a final adjudication of the present claims. The provider also failed under Insurance Law § 5106 (a) to show untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny amendment and dismissal, while affirming denial of the provider's summary judgment cross motion.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50997(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and denials and the provider's nonappearance through an attorney's affirmation. In the provider's action for assigned no-fault benefits, the insurer sought summary judgment based on the provider's failure to attend scheduled EUOs, and the provider cross-moved for summary judgment. The insurer's affidavit described standard office mailing practices and procedures. Its attorney, who was present in the office to conduct the EUOs on the scheduled dates, supplied sufficient proof of nonappearance. The provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50993(U)
Insurer prevailed
The provider failed at trial to establish that its assignor was not the owner of the uninsured vehicle, defeating eligibility for MVAIC benefits. A prior order under CPLR 3212 (g) limited trial to coverage and vehicle ownership. The sole witness, an MVAIC employee, testified that the assignor had appeared for an EUO and was the vehicle's de facto owner. Under Insurance Law § 5202 (b), nonownership of the uninsured vehicle was a condition of qualified-person status and potential covered-person eligibility under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the provider's judgment and remitted for judgment dismissing the complaint, finding the provider's prima facie case unproved under those provisions and Insurance Law § 5208; it reached no other issue.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50990(U)
Insurer prevailed
The insurer proved the provider's EUO nonappearances, including one at a location changed at the provider's request, and a timely denial. The insurer established mailing of the scheduling letters through standard office practices and procedures and showed that the provider missed both scheduled EUOs. One EUO had been moved to Brooklyn at the provider's request. The insurer timely denied the claim for services rendered after the missed EUOs, and the provider raised no triable issue. Under CPLR 5512 (a), the appeal was deemed taken from the subsequent judgment. The Appellate Term, Second Department, reversed that judgment, vacated the underlying order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50994(U)
Provider prevailed
An insurer must document its underwriting practices to establish that an application misrepresentation was material as a matter of law. The insurer sought summary judgment dismissing the provider's assigned no-fault action based on alleged misrepresentations concerning ownership and use of the vehicle. Following Interboro Ins. Co. v Fatmir, materiality required proof that the insurer would not have issued the same policy had the correct information been disclosed, supported by underwriting manuals, bulletins, or rules concerning similar risks. The insurer failed to establish that it would not have issued the policy. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 51002(U)
Insurer prevailed
The insurer properly mailed IME notices to the sworn application's address despite a different ZIP code in the police report. The provider challenged the insurer's failure to mail notices using a ZIP code differing by one digit. The notices matched both the assignor's sworn NF-2 and the provider's NF-3 forms, and no assignor affidavit asserted that the ZIP code used was incorrect. The insurer proved timely, proper mailing and nonappearance, establishing noncompliance with a condition precedent to coverage. The provider did not challenge the Civil Court's finding of timely denial mailing under CPLR 3212 (g). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 51004(U)
Split result
The insurer obtained partial summary judgment on IME nonappearance, late claim submission, and fee schedule grounds. The Appellate Term, Second Department, modified the order to dismiss the April 19, 2016 claim for IME nonappearance and the December 28, 2015 claim submitted beyond 45 days under 11 NYCRR 65-2.4 (c). IME notices matched the assignor's sworn application address; both denials were timely. The insurer established full payment under the chiropractic acupuncture fee schedule for codes 97810, 97811, 99202, 99212, and 97026, except the latter's December 11, 2015, March 1, March 17, and March 28, 2016 services. Those unpaid balances were dismissed. Summary judgment remained denied for the excepted claims and code 90739 claims, which the insurer's coder acknowledged were payable.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50988(U)
Split result
The provider's affidavit raised a factual issue over whether requested verification was mailed and received, defeating premature-action dismissal. The insurer sought summary judgment on EUO nonappearance and outstanding verification grounds, and the provider cross-moved for summary judgment. The Civil Court dismissed the action as premature and denied the cross motion. Although the insurer showed timely initial and follow-up verification requests and nonreceipt, the provider's affidavit created a presumption of mailing and receipt of the responses. The competing proof left a triable issue concerning prematurity. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50989(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in Colin v Global Liberty Ins. Co. of NY, the companion appeal decided the same day, No. 2018-2315 K C; timely denial mailing had been established under CPLR 3212 (g).
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50992(U)
Insurer prevailed
The insurer established two duly demanded EUOs, the assignor's two nonappearances, and a timely denial of the claim. The provider appealed an order granting summary judgment dismissing its action for assigned no-fault benefits. Applying Interboro Ins. Co. v Clennon and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the decision treated appearance at a duly demanded EUO as a condition precedent to the insurer's liability and found the insurer entitled to summary judgment. The provider's remaining contentions were raised for the first time on appeal and, in any event, lacked merit. The Appellate Term, Second Department, affirmed the order in the insurer's favor.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50998(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2018-2004 K C.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 50999(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed because the insurer's proof sufficiently established the missed EUOs, rejecting the provider's sole contention and citing Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 51001(U)
Provider prevailed
The insurer's summary judgment motion on its fee schedule defense was denied, and that denial was affirmed on appeal. The Appellate Term, Second Department, found that the motion papers failed to establish that the provider's charges exceeded the workers' compensation fee schedule, citing Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. Under CPLR 3212 (g), that defense remained the sole trial issue.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 51003(U)
Insurer prevailed
The insurer established mailing of pre-claim IME notices, the assignor's nonappearance, and a timely denial based on that nonappearance. An employee of the company retained to schedule the IMEs established proper mailing to the assignor. Affidavits from the chiropractors who were to conduct chiropractic and acupuncture IMEs established the missed appearances, and the insurer's claims representative established timely mailing of the denial. The provider's counsel raised no issue concerning notices mailed directly to the assignor and failed to raise a triable issue; the challenge to proof of nonappearance lacked merit. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the claim at issue.
Appellate Term, Second Department
Aug 28, 2020
2020 NY Slip Op 51006(U)
Insurer prevailed
The insurer established timely mailing of IME notices and the assignor's nonappearance, warranting dismissal of the claim at issue. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment on IME nonappearance and fee schedule grounds. The appeal concerned only the claim denied for IME nonappearance. The insurer's affidavit established that the IMEs were duly scheduled, the assignor failed to appear, and the claim was timely denied on that ground. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearance breached a condition precedent to coverage. The provider raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted that branch of the insurer's motion.
Appellate Term, Second Department
Aug 27, 2020
2020 NY Slip Op 51016(U)
Insurer prevailed
MVAIC established that the assignor missed two duly scheduled IMEs and that it timely mailed a denial on that ground. The provider sought assigned no-fault benefits and cross-moved for summary judgment. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, found that MVAIC's moving papers established the nonappearances and that the provider raised no triable issue in opposition. It reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Aug 27, 2020
2020 NY Slip Op 51017(U)
Insurer prevailed
No-fault arbitration is compulsory, and denial of a petition to vacate a master arbitrator's award requires confirmation of the award. The provider sought CPLR article 75 vacatur of a master arbitrator's award upholding denial of assigned benefits under Insurance Law § 5106 (b). Judicial review includes whether the compulsory-arbitration determination had evidentiary support, was rational, or had a plausible basis. The Appellate Term, Second Department, found a rational basis and affirmed denial of vacatur, modifying the order to confirm the award under CPLR 7511 (e). It also noted that CPLR 411 requires a special proceeding to terminate in a judgment rather than an order.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50946(U)
Insurer prevailed
The insurer established retroactive rescission of a Florida policy through notice and timely return or tender of all premiums. Florida law undisputedly governed the provider's assigned no-fault claims. After investigating application misrepresentations concerning residence and garaging, the insurer obtained a Florida declaratory judgment declaring the policy void and rescinded it under Florida Statutes Annotated, title 37, § 627.409. The motion papers showed a rescission notice and return or tender of all premiums within a reasonable period after discovery of the grounds for rescission, establishing that the policy was void ab initio. The provider's remaining arguments were unpreserved and were not considered. The Appellate Term, Second Department, affirmed denial of the provider's motion and summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50940(U)
Provider prevailed
The insurer's motion to dismiss for laches based on the provider's 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 remaining motion branches, which the Civil Court had deemed moot.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50941(U)
Provider prevailed
The insurer's motion to dismiss for laches based on the provider's 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 remaining motion branches, which the Civil Court had deemed moot.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50942(U)
Provider prevailed
The insurer's motion to dismiss for laches based on the provider's 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 remaining motion branches, which the Civil Court had deemed moot.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50943(U)
Provider prevailed
The insurer's motion to dismiss for laches based on the provider's 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 remaining motion branches, which the Civil Court had deemed moot.
Appellate Term, Second Department
Aug 14, 2020
2020 NY Slip Op 50944(U)
Provider prevailed
The insurer's motion to dismiss for laches based on the provider's 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 remaining motion branches, which the Civil Court had deemed moot.
Appellate Term, Second Department
Aug 7, 2020
2020 NY Slip Op 50935(U)
Provider prevailed
The insurer failed to establish an excusable default, and the provider's default judgment remained in place. The process server's affidavits supplied prima facie proof of service under CPLR 311 (a) (1) on general agents authorized to accept process for the insurer. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a potentially meritorious defense. Following Santomauro v Allstate Ins. Co., the insurer's employee affidavit, virtually identical to the affidavit there, failed to establish an excusable default. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branches seeking to vacate the default judgment and compel acceptance of the insurer's answer.
Trial court, First Department
Aug 21, 2020
2020 NY Slip Op 50930(U)
Provider prevailed
The insurer failed to prove timely IME scheduling, and the assignor's default judgment did not preclude the provider's claim. The Supreme Court, New York County, denied the insurer's motion under CPLR 3212 for summary judgment declaring no obligation to pay the provider. The assignment preceded suit, and the prior default judgment did not declare the insurer's rights against the appearing provider or void the policy. The insurer also failed to establish when it received the prescribed verification forms, preventing proof that the IME was scheduled within 30 calendar days as required by 11 NYCRR 65-3.5 (d). Assuming without deciding that IMEs concerning future treatment might fall outside that requirement, the court found no evidence of such a purpose here.
Trial court, First Department
Aug 21, 2020
2020 NY Slip Op 50929(U)
Provider prevailed
The insurer failed to prove timely IME scheduling, and the assignor's default judgment did not preclude the provider's claim. The Supreme Court, New York County, denied the insurer's motion under CPLR 3212 for summary judgment declaring no obligation to pay the provider. The assignment preceded suit, and the prior default judgment did not declare the insurer's rights against the appearing provider or void the policy. The first IME was scheduled for 43 days after the scheduling notice, defeating the insurer's showing of compliance with the 30-calendar-day requirement in 11 NYCRR 65-3.5 (d). Assuming without deciding that IMEs concerning future treatment might fall outside that requirement, the court found no evidence of such a purpose here.
Trial court, First Department
Aug 11, 2020
2020 NY Slip Op 50909(U)
Both parties' requests for summary judgment were rejected as untimely because neither offered an excuse for the delay. The Civil Court, Bronx County, dismissed the insurer's motion for summary judgment dismissing the provider's assigned no-fault claim and declined to grant the provider's request for summary judgment made in opposition. Both requests were made beyond the 120-day deadline under CPLR 3212 (a). Following Brill v City of New York, the court required a satisfactory explanation for lateness; the insurer's assertion of no prejudice supplied none. Under CPLR 2211, service determined when the insurer's motion was made, despite its earlier drafting and signing.
Trial court, First Department
Aug 7, 2020
2020 NY Slip Op 20200
Split result
The insurer's case-specific allegations warranted Mallela discovery, but the provider's conduct did not justify dismissal. The Civil Court, Bronx County, struck the notice of trial under 22 NYCRR 208.17 (c), compelled specified interrogatory answers and document responses under CPLR 3124, and ordered a deposition, while denying the remaining demands. Allegations of identical testing units and unnecessary testing sufficiently supported suspected control by unlicensed laypersons. The Mallela defense was not precluded by the fee-schedule denial. Untimely objections under CPLR 3133 (a) limited review to privilege and palpable impropriety, and existing answers were inadequate. The court denied dismissal under CPLR 3126 because the provider had not acted willfully, contumaciously, or in bad faith; it allowed a future preclusion motion for noncompliance with the discovery order.
