Appellate Term, Second Department
Sep 18, 2020
2020 NY Slip Op 51122(U)
Split result
The insurer failed to prove policy exhaustion because its payment log lacked a sufficient business-record foundation. To obtain summary judgment, the insurer had to establish payment of the policy limits in accordance with 11 NYCRR 65-3.15. Its claim specialist did not lay the foundation required by CPLR 4518 (a), and a referenced affidavit was absent from the papers received by the court. The provider also failed to show that its claims were untimely denied or that timely denials were conclusory, vague, or meritless as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion and affirmed denial of the provider's cross motion.
Appellate Term, Second Department
Sep 11, 2020
2020 NY Slip Op 51118(U)
Insurer prevailed
The provider failed to obtain personal jurisdiction over the insurers because it did not establish completed mailed service or timely alternative service. The affidavit alleged mailing under CPLR 312-a, but the record did not show return of a signed acknowledgment or completion of service by another method within 120 days of filing under CCA 411. For service other than personal delivery, CCA 410 (b) requires filing proof of service, and CPLR 306 (d) requires an acknowledgment for mailed service under CPLR 312-a. The Appellate Term, Second Department, consolidated the insurers' appeals, reversed the order, insofar as appealed from, and granted their motion to dismiss the provider's assigned no-fault complaint.
Appellate Term, Second Department
Sep 11, 2020
2020 NY Slip Op 51120(U)
Insurer prevailed
The provider failed to acquire personal jurisdiction because the record showed no signed acknowledgment of mailed service or timely alternative service. The affidavit alleged service under CPLR 312-a, but the record did not establish return of a signed acknowledgment or completion of service within 120 days under CCA 411. Under CCA 410 (b) and CPLR 306 (d), proof of mailed service required an acknowledgment. Although the insurer moved after joining issue without conversion notice under CPLR 3211 (c), the provider did not challenge timeliness, and the purely legal jurisdictional issue required no notice. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint, declining to consider materials outside the record or arguments first raised on appeal.
Appellate Term, Second Department
Sep 4, 2020
2020 NY Slip Op 51112(U)
Insurer prevailed
Failure to give proper notice of a motion deprives the court of jurisdiction to entertain it and renders the resulting order void. The provider mailed a motion to substitute a new defendant one day before its return date, violating CPLR 2214 (b). The Appellate Term, Second Department, reversed the amended order, insofar as appealed from, granted the proposed defendant vacatur under CPLR 5015 (a) (4), and denied the branch seeking to add it. Because the proposed defendant was not a party, its summary judgment request became academic; the court also vacated acceptance of its late answer and denied that request as academic. The motion actually sought to add a new party and required notice to the original defendant.
Trial court, Second Department
Sep 30, 2020
2020 NY Slip Op 51169(U)
Insurer prevailed
The provider's reargument and renewal motion failed because it showed no overlooked matter or new fact warranting a changed jurisdictional ruling. The Civil Court, Kings County, had dismissed the no-fault action against the state workers' compensation carrier for lack of jurisdiction under New York Constitution, article VI, § 9, and Court of Claims Act § 9. Under CPLR 2221 (d) (2), repeated jurisdictional arguments supplied no basis for reargument, and the newly raised Court of Claims time bar was outside reargument's scope. Renewal failed under CPLR 2221 (e) (2) and (3) because the provider offered no justification for omitting that fact and it would not change the ruling: a time bar in the proper forum did not confer Civil Court jurisdiction.
