Appellate Term, Second Department
Jan 15, 2021
2021 NY Slip Op 50030(U)
Provider prevailed
The insurer's summary judgment motion based on discovery preclusion was denied because preclusion was unwarranted on this record. The insurer argued that the injured claimant's failure to comply with a discovery order precluded trial testimony and required dismissal of the no-fault action. The Appellate Term, Second Department, agreed with the Civil Court's implicit determination that preclusion was unwarranted under the circumstances and affirmed the order, insofar as appealed from.
Trial court, First Department
Jan 8, 2021
2021 NY Slip Op 50011(U)
Conflicting medical evidence precluded summary judgment for either side in the insurer's de novo action following a no-fault award. The Supreme Court, New York County, denied both motions under CPLR 3212 in the action under Insurance Law § 5106 (c). The insurer's IME report and the provider's treatment records created a factual dispute over medical necessity; credibility could not be resolved on summary judgment. The court declined additional denial grounds neither asserted in the denial nor raised in arbitration. It also denied the provider a default judgment on its counterclaim and compelled acceptance of the insurer's late reply under CPLR 3012 (d), finding pandemic-related law-office failure a reasonable excuse and the IME report a potentially meritorious defense.
