Appellate Division, Second Department
Feb 24, 2021
2021 NY Slip Op 08159
Provider prevailed
The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim. The Appellate Division, Second Department, affirmed the order upholding denial of the insurer's summary judgment motion, on different grounds. Although records indicated policy exhaustion, the employee affidavit described general claims-handling practices without claim-specific information, and the insurer omitted the application, verification materials and denial. The employee's assertions about the file's contents were inadmissible hearsay; reviewing business records did not confer personal knowledge. Insurance Law § 5106 (a) requires timely payment or denial of verified claims, which are subject to the payment-priority regulation, 11 NYCRR 65-3.15. Factual issues remained concerning the denial's timing, basis and efficacy; the remaining contentions were not reached.
Appellate Division, First Department
Feb 18, 2021
2021 NY Slip Op 01120
Provider prevailed
An alleged error in the burden of proof for a fraudulent incorporation defense does not alone warrant vacatur of an arbitration award. Supreme Court vacated the provider's award solely because the arbitrator and master arbitrator allegedly used the wrong burden, without identifying a ground under CPLR 7511 (b). The Appellate Division, First Department, reversed, denied the insurer's petition and confirmed the master arbitrator's award. Courts do not oversee arbitration awards merely to correct errors of law or fact. The reargument order was appealable under CPLR 5701 (a) (2) (viii) because it addressed the merits despite purporting to deny reargument. The matter was remanded to calculate the provider's reasonable appellate attorney fees under 11 NYCRR 65-4.10 (j) (4).
Appellate Term, Second Department
Feb 26, 2021
2021 NY Slip Op 50156(U)
Provider prevailed
The provider's summary judgment motion was granted and the insurer's cross motion denied despite its New Jersey choice-of-law argument. The Appellate Term, Second Department, affirmed the order applying New York law for the reasons stated in Schottenstein Pain & Neuro, PLLC v Travelers Ins. Co. The insurer's sole appellate contention was that New Jersey law controlled the assigned no-fault benefits action.
Appellate Term, Second Department
Feb 26, 2021
2021 NY Slip Op 50151(U)
Insurer prevailed
An order granting entry of a default declaratory judgment can bar relitigation when identity of issue and opportunity to contest are present. The provider defaulted in the insurer's declaratory action, admitting the allegations concerning the staged nature of the collision. The Civil Court denied the insurer summary judgment because the default order made no coverage declarations and found a later judgment inapplicable. The Appellate Term, Second Department, held that the default order itself barred the provider's assigned-benefits action under res judicata: recovery would impair rights established by that order. It reversed, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Feb 19, 2021
2021 NY Slip Op 50135(U)
Insurer prevailed
A pre-claim IME scheduling letter need not be mailed within 30 days after the insurer receives the NF-2. The insurer established that it properly scheduled the assignor's IMEs before receiving the provider's claim, that the assignor failed to appear, and that it timely denied the claim on that ground. Appearance was a condition precedent to policy liability. The provider's proposed 30-day mailing requirement lacked merit under 11 NYCRR 65-3.5 (a) and (d) and Appendix 13. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 19, 2021
2021 NY Slip Op 50130(U)
Split result
The defendant's motion to amend the pleadings and dismiss the provider's complaint on res judicata grounds was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in Quality Health Supply Corp. v Hertz Co. The denial of the provider's summary judgment cross motion remained affirmed.
Appellate Term, Second Department
Feb 19, 2021
2021 NY Slip Op 50132(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 the order, insofar as appealed from, for the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. It remitted the matter to Civil Court, Queens County, to decide the remaining request to toll statutory no-fault interest, previously deemed moot.
Appellate Term, Second Department
Feb 19, 2021
2021 NY Slip Op 50133(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 the order, insofar as appealed from, for the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. It remitted the matter to Civil Court, Queens County, to decide the remaining request to toll statutory no-fault interest, previously deemed moot.
Appellate Term, Second Department
Feb 19, 2021
2021 NY Slip Op 50134(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 the order, insofar as appealed from, for the reasons stated in V.S. Med. Servs., P.C. v State Farm Mut. Ins. Co. It remitted the matter to Civil Court, Queens County, to determine the remaining branch seeking dismissal of the statutory no-fault interest claim.
Appellate Term, Second Department
Feb 5, 2021
2021 NY Slip Op 50079(U)
Insurer prevailed
The insurer justified vacating its default through an existing stay and obtained dismissal based on a preclusive declaratory judgment. The Supreme Court stay was in effect both when opposition to the provider's summary judgment motion was due and on the adjourned return date, establishing a reasonable excuse under CPLR 5015 (a) (1). The Civil Court properly took judicial notice of a subsequent declaratory judgment determining that the collision was intentional, the policy void, and no no-fault coverage owed. That judgment conclusively determined the claim and supported dismissal under res judicata. The Appellate Term, Second Department, affirmed vacatur of the provider's unopposed summary judgment order and summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 5, 2021
2021 NY Slip Op 50083(U)
Insurer prevailed
An insurer seeking summary judgment for EUO nonappearance need not prove timely mailing of prescribed forms upon learning of the accident. The provider challenged the insurer's prima facie showing based on the absence of proof under 11 NYCRR 65-3.4. Following Interboro Ins. Co. v Clennon, the court rejected that contention. The provider also sought disqualification under Rules of Professional Conduct (22 NYCRR 1200.0) rule 3.7 because a partner in the insurer's law firm had affirmed the provider's EUO nonappearance. That contention failed for the reasons stated in Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of disqualification.
Appellate Term, Second Department
Feb 5, 2021
2021 NY Slip Op 50084(U)
Provider prevailed
The provider's claim was not barred by collateral estoppel because the declaratory judgment was entered on default and privity was absent. The insurer obtained a judgment against the assignor declaring the collision staged, the policy void for related claims, and no duty to pay no-fault benefits. Under Kaufman v Eli Lilly & Co., the issues had not been actually litigated on the merits. The provider and assignor also were not in privity when the declaratory judgment action began, because the provider had already commenced its action as assignee. The Appellate Term, Second Department, reversed the dismissal, denied the collateral estoppel branch of the insurer's motion, and remitted the matter for determination of the remaining grounds.
Appellate Term, Second Department
Feb 5, 2021
2021 NY Slip Op 50086(U)
Insurer prevailed
The provider's action was barred by res judicata because the prior declaratory judgment covered the same claim and accident. The insurer established that the claim number and accident date matched those in a Supreme Court judgment, entered on the provider's default, declaring no obligation to pay the identified claims. A recovery would impair rights established by that judgment. Although the insurer moved under CPLR 3211 (a) (5) after joinder of issue under CPLR 3211 (e), the motion presented a purely legal question and could be treated as summary judgment without notice under CPLR 3211 (c). 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
Feb 5, 2021
2021 NY Slip Op 50087(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's claims on res judicata grounds was granted on appeal. The insurer relied on a default declaratory judgment stating that it had no obligation to pay the identified claims. 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. 2019-1180 K C.
Trial court, Second Department
Feb 8, 2021
2021 NY Slip Op 50142(U)
Insurer prevailed
The provider's claims were barred by an unvacated default declaratory judgment determining coverage against both provider and assignor. The Civil Court, Kings County, granted the insurer summary judgment, dismissed the complaint with prejudice, and denied the provider's cross motion as moot. The Supreme Court, Orange County, judgment declared no first-party coverage based on the assignor's residence misrepresentations and expressly encompassed the provider. The provider produced no evidence creating a factual dispute about its inclusion. Unlike Jamaica Wellness Med., P.C. v Mercury Cas. Co., the declaration determined the provider's rights. The court also applied the assignee's derivative rights under 11 NYCRR 65-3.11 and did not reach billing proof or denial timeliness.
Trial court, First Department
Feb 4, 2021
2021 NY Slip Op 21019
Provider prevailed
The insurer's EUO no-show summary judgment motion failed for missing timeliness proof and outstanding discovery into justification. In a declaratory judgment action, the Supreme Court, New York County, denied summary judgment against one provider because the insurer supplied no NF-3 forms establishing compliance with 11 NYCRR 65-3.5 (b). As to three other providers, timely requests and two nonappearances were established, but summary judgment was denied without prejudice as premature under CPLR 3212 (f). Discovery into the specific objective justification required by 11 NYCRR 65-3.5 (e) remained outstanding, and the insurer's affidavit supplied no such justification. The providers did not waive that challenge merely because neither they nor the assignor objected when the EUO was requested.
