Appellate Division, First Department
Mar 25, 2021
2021 NY Slip Op 01848
Provider prevailed
An IME no-show defense is a policy issue permitting hourly attorney fees under 11 NYCRR 65-4.6 (c). The mandatory endorsement in 11 NYCRR 65-1.1 (d) makes IME attendance a condition of coverage, bringing nonappearance within box 4 of the prescribed denial form. The Appellate Division, First Department, reversed the Appellate Term order affirming vacatur of the provider's fee award and remanded for further proceedings and an amended judgment. Although hourly fees were available, the record lacked supporting documentation, the parties' calculations conflicted and the nature of the unpaid judgment balance was uncertain. Civil Court was to determine the fees owed and any outstanding balance, crediting the insurer's payments.
Appellate Term, Second Department
Mar 26, 2021
2021 NY Slip Op 50257(U)
The insurer obtained a new trial because the assignor's certified EUO transcript should have been considered on workers' compensation. A nonjury trial in the assigned-benefits action was limited to whether workers' compensation was primary. The Civil Court excluded the transcript based on law of the case and found for the provider. The Appellate Term, Second Department, reversed the denial of the insurer's CPLR 4404 (b) motion, set aside the decision, and granted a new trial. The transcript should have been considered to determine whether the insurer offered sufficient evidence that the assignor might have been acting in the course of employment and that workers' compensation benefits might be available.
Appellate Term, Second Department
Mar 18, 2021
2021 NY Slip Op 50238(U)
Insurer prevailed
An unvacated default declaratory judgment can bar a provider's no-fault action under res judicata. After the provider commenced its assigned-benefits action, the insurer obtained a declaration in Supreme Court, New York County, that it owed no no-fault benefits to the provider or assignor arising from the collision at issue. The declaration was a conclusive final determination despite entry on default. A judgment for the provider would destroy or impair the insurer's rights established by that declaration. The Appellate Term, Second Department, reversed the order of the District Court, Suffolk County, denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 12, 2021
2021 NY Slip Op 50213(U)
Insurer prevailed
An assignor's representation by counsel is irrelevant to an insurer's duty to mail EUO scheduling letters to the assignor. The Civil Court denied summary judgment because the insurer had not established representation, although it found that scheduling letters were mailed to the assignor at the NF-2 address and to a law firm. Counsel's affirmations and EUO transcripts established two nonappearances, and 11 NYCRR 65-3.5 (e) and 65-3.6 (b) required mailing to the assignor. The provider raised no triable issue and did not challenge the implicit CPLR 3212 (g) findings favoring the insurer. 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
Mar 5, 2021
2021 NY Slip Op 50178(U)
Provider prevailed
The insurer's motion to vacate a default judgment was denied because it insufficiently alleged law-office failure as a reasonable excuse. CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense, and the insurer's excuse was inadequate. The Appellate Term, Second Department, reversed the order granting vacatur of the judgment entered for the insurer's failure to appear or answer.
Trial court, First Department
Mar 12, 2021
2021 NY Slip Op 50209(U)
Split result
The insurer failed to establish material misrepresentation in procuring the policy because its underwriter's affidavit was missing. The assignor obtained a Florida policy but testified at an EUO that the assignor resided and principally garaged the vehicle in New York. The Civil Court, New York County, granted both summary judgment motions only to establish timely bills and denials and limit trial to the denials' bases. Under 11 NYCRR 65-3.5 (a) and (b), letters specifying that an EUO was required sufficiently tolled the payment deadline; mailing proof also showed notice to the provider and assignor. Materiality required proof that correct information would have prevented issuance. Counsel acknowledged omitting the referenced underwriter affidavit, leaving materiality for trial.
