Appellate Division, First Department
Oct 29, 2020
2020 NY Slip Op 06209
Provider prevailed
The insurer's summary judgment motion was premature because its objective basis for requesting an EUO was unavailable to the providers. The insurer sought a declaration that it owed no reimbursement for claims arising from a motor vehicle accident. It had not supplied the claimant's assignees with the specific objective justification required by 11 NYCRR 65-3.5 (e). The criteria used to require the EUO were facts unavailable to the providers in opposing the motion, bringing CPLR 3212 (f) into play. No depositions had been conducted. The Appellate Division, First Department, affirmed denial of the insurer's motion as premature.
Appellate Division, First Department
Oct 20, 2020
2020 NY Slip Op 05851
Insurer prevailed
The insurer obtained renewal and summary judgment on authenticated admissions proving that the collision was staged. The additional evidence included a passenger's videotaped confession and statements to investigative agencies. Under CPLR 2221 (e) (2) and (3), the insurer showed that the evidence would change the prior determination, required extensive motion practice to obtain, and was previously unknown in nature and extent. The statements were admissible as party admissions, and a complete chain of custody authenticated the material. The providers offered no contrary evidence. The Appellate Division, First Department, reversed the order, insofar as appealed from, granted renewal and summary judgment, and directed a declaration of no coverage for the four providers.
Appellate Division, Fourth Department
Oct 9, 2020
2020 NY Slip Op 05626
Provider prevailed
A compulsory SUM arbitration award must have evidentiary support and cannot be arbitrary and capricious. The injured claimant sought confirmation after recovering damages from the other driver, while the insurer sought vacatur under CPLR 7511 (b) (1) (iii). The arbitrator credited treating physicians' accident-causation opinions and objective evidence over conflicting IME opinions concerning spinal injuries. Judicial review accepted the arbitrator's credibility determinations despite conflicting evidence. The Appellate Division, Fourth Department, affirmed the judgment confirming the award because the findings were rational and supported by the record; it dismissed the separate order appeal as subsumed in the judgment and the payment-into-court appeal as abandoned.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 51301(U)
Insurer prevailed
The provider's unreasonable delay in prosecuting its no-fault action warranted tolling statutory interest until a notice of trial was duly filed. No notice of trial had been properly filed, and the toll began when the provider could have moved to compel responses to its discovery demands. Under former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d), interest accumulates after commencement unless the applicant unreasonably delays the proceeding. The Appellate Term, Second Department, rejected the provider's contention that MVAIC caused the delay by failing to answer discovery. It affirmed the order, insofar as appealed from, tolling interest from April 27, 2003 until proper filing of the notice of trial.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 20291
Provider prevailed
The provider could pursue claims for services rendered before its sole shareholder's chiropractic license was revoked. The Appellate Term, Second Department, reversed and denied the insurer's motion, treated as one for summary judgment because it presented a purely legal question on undisputed facts under CPLR 3211 (c). Business Corporation Law §§ 1509 and 1510 require severance of a disqualified professional's ties and repurchase of the professional's shares, but those requirements are not self-executing. Although neither requirement was met, no forfeiture or dissolution had been sought, and the corporation continued to exist and could wind up its affairs. Its living shareholder retained administrative authority. Failure to repurchase the shares did not make otherwise valid contracts unenforceable or permit withholding payment for legally rendered services.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 51291(U)
Insurer prevailed
The provider failed to justify its delay or show a potentially meritorious claim after ignoring a CPLR 3216 90-day notice. The provider neither filed a notice of trial nor moved to vacate the notice or extend the 90-day period. To avoid dismissal under CPLR 3216 (e), it was required, absent circumstances not present here, to demonstrate a justifiable excuse and a meritorious cause of action. Its excuse was conclusory, and counsel's statement that bills had been submitted and remained unpaid was insufficient to establish potential merit. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the complaint for failure to prosecute.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 51292(U)
Insurer prevailed
An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment. The Civil Court had left for trial whether the insurer's attorney was present at the scheduled EUOs and made implicit findings under CPLR 3212 (g). The insurer's proof established the attorney's presence and the provider's nonappearance. The provider's cross appeal challenged the findings on the ground that objective reasons for the EUOs had not been shown; that contention failed under Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing all claims challenged on its appeal.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 51296(U)
Insurer prevailed
The insurer's later summary judgment motion was permissible, and a declaratory judgment barred the provider's claims under res judicata. The Supreme Court, Nassau County, declared that the insurer owed no coverage for the collision or resulting no-fault claims. Because that action and judgment postdated the insurer's answer and first cross motion, omission of preclusion defenses was excusable. The later motion introduced the new judgment and should not have been rejected under the motion schedule or successive-motion rule. Taking judicial notice, the Appellate Term, Second Department, concluded that recovery would impair rights established by the declaratory judgment. It reversed the provider's judgment, vacated the order, denied the provider's motion, and granted the insurer's later motion dismissing the complaint.
Appellate Term, Second Department
Oct 30, 2020
2020 NY Slip Op 51304(U)
An intercompany reimbursement arbitration cannot relate back to a lawsuit against a different party to toll the limitations period. The petitioning insurer sued the other driver as uninsured before commencing arbitration against that driver's insurer. A registration record containing a policy number supported a reasonable hypothesis that the petitioner knew or should have known the driver was insured before suing. Applying CPLR 7511 and compulsory-arbitration review, the Appellate Term, Second Department, found evidentiary support for the arbitrators' application of the three-year limitations period and concluded the award was not arbitrary or capricious. It affirmed denial of vacatur and confirmation of the award for the respondent insurer, while noting that CPLR 411 requires a special proceeding to terminate in a judgment.
Appellate Term, First Department
Oct 23, 2020
2020 NY Slip Op 51243(U)
Provider prevailed
MVAIC's summary judgment motion was untimely, and its IME scheduling letters used an incorrect zip code that defeated presumed receipt. The motion was made after the 120-day deadline fixed by a so-ordered stipulation and preliminary conference order, without a showing of good cause under CPLR 3212 (a). The Appellate Term, First Department, affirmed denial of the motion. It also concluded that, even if timely, the motion would fail because MVAIC's proof did not establish prima facie entitlement to dismissal based on the assignor's IME nonappearances. The incorrect zip code prevented the scheduling-letter proof from giving rise to a presumption of receipt.
Appellate Term, Second Department
Oct 16, 2020
2020 NY Slip Op 51226(U)
Provider prevailed
⚠ Criticized by MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)
The 30-day pay-or-deny period for EUO nonappearance begins with the second missed EUO when no other verification is outstanding. Under 11 NYCRR 65-3.8 (a) (1), the insurer could conclude at that point that a condition precedent to coverage had not been satisfied. Although the insurer asserted three nonappearances, it denied the claims more than 30 days after the second. It therefore failed to establish that it was not precluded from asserting the defense. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion and grant of the provider's cross motion, without passing on the provider's prima facie showing because the insurer raised no issue concerning it.
Appellate Term, Second Department
Oct 16, 2020
2020 NY Slip Op 51225(U)
Insurer prevailed
The insurer's calendar-call default was opened and the complaint dismissed because a declaratory judgment barred the provider's claims. After joining issue, the insurer failed to appear for a scheduled court date. It sought to open the default and dismiss based on an amended order and judgment of the Supreme Court, Bronx County, declaring no obligation to pay the provider's claims arising from the underlying accident. The Appellate Term, Second Department, reversed the denial of that motion. Following Woodson v Mendon Leasing Corp., it concluded that the motion should have been granted for sufficient reason and in the interests of substantial justice.
Appellate Term, Second Department
Oct 2, 2020
2020 NY Slip Op 51133(U)
Insurer prevailed
An assignor must attend a requested EUO whether the insurer demands it before or after submission of the claim form. The insurer established timely mailing of EUO scheduling letters, the assignor's nonappearance, and timely denials on that ground; the provider raised no triable issue. Contrary to the Civil Court's determination, the first scheduling letter was not a nullity merely because it preceded receipt of the provider's first claim form. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and LDE Med. Servs., P.C. v Interboro Ins. Co., 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
Oct 2, 2020
2020 NY Slip Op 51134(U)
Insurer prevailed
The provider failed to give a credible law office failure excuse for filing its notice of trial after the 90-day demand period. The provider neither timely filed the notice nor moved before default to vacate the demand or extend the period under CPLR 2004. Under CPLR 3216 (e), it therefore had to show both a justifiable excuse and a meritorious cause of action to oppose dismissal. Although CPLR 2005 permits acceptance of law office failure, counsel's affirmation did not credibly explain the delay. The Appellate Term, Second Department, affirmed dismissal under CPLR 3216 and found it unnecessary to decide whether the provider had shown a meritorious claim.
Trial court, Second Department
Oct 29, 2020
2020 NY Slip Op 20285
Provider prevailed
The insurer failed to toll its claim determination period because it did not prove that it placed the scheduled verification calls. Its letters told the assignor that the insurer would call at specified times for a recorded statement. Although mailing was established, the insurer supplied no proof that a representative made those calls, leaving the verification requests incomplete. Following Dilon Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., the Civil Court found no tolling and untimely denials. The Civil Court, Kings County, granted the provider summary judgment under CPLR 3212 and denied the insurer's motion to dismiss as premature. The insurer's assertion that verification remained unanswered for 120 days neither established its entitlement to judgment nor raised a triable issue.
Trial court, Second Department
Oct 20, 2020
2020 NY Slip Op 20275
Insurer prevailed
The provider's claim was barred by a declaratory judgment after evidence established that it had misnamed the underwriting insurer. The provider opposed dismissal and cross-moved for summary judgment, arguing that the differently named insurer in the declaratory action defeated preclusion. The insurer submitted a claims representative's affidavit and a certified policy declaration identifying the actual underwriting insurer. The Civil Court, Kings County, distinguished Quality Health Supply Corp. v Hertz Co. because evidence here established the correct insurer. The declaratory judgment, which named the provider and assignor and declared the policy void as to the incident, barred the action under res judicata and collateral estoppel. The Civil Court sua sponte corrected the caption, finding no effect on a substantial right, and dismissed with prejudice.
Trial court, First Department
Oct 9, 2020
2020 NY Slip Op 51181(U)
Provider prevailed
The insurer failed to show that its IME requests satisfied regulatory deadlines or preceded receipt of provider claims. The Supreme Court, New York County, denied summary judgment against an appearing provider in the insurer's declaratory judgment action. Under 11 NYCRR 65-3.5 (b) and (d), the insurer had to establish a request within 15 business days and an IME scheduled to occur within 30 calendar days of receiving verification forms or bills, or show those requirements inapplicable because it requested the IME before receipt. An assignor's default does not bind an assignee whose assignment preceded suit. The court rejected an exemption for examinations aimed at assessing future treatment needs; the insurer also offered no evidence that this IME had that purpose.
Trial court, Second Department
Oct 8, 2020
2020 NY Slip Op 20254
Provider prevailed
The insurer failed to justify summary judgment on staged-collision or unsigned EUO transcript grounds. The Civil Court, Queens County, denied its unopposed motion without prejudice. Conflicting accounts raised a factual issue about the collision, and the assignor answered most EUO questions. The insurer therefore failed to rebut the presumption of coverage under CPLR 3212 (b). Although subscription was a condition precedent under 11 NYCRR 65-1.1, the court found 11 NYCRR 65-3.8 (b) (3) silent on a 120-day deadline to return a signed transcript; 11 NYCRR 65-3.8 (a) (1) deemed EUO verification received when performed. The insurer supplied no contract imposing that deadline and had not exhausted available remedies, making pretrial dismissal for non-subscription premature.
