Appellate Term, Second Department
Apr 23, 2021
2021 NY Slip Op 50359(U)
Provider prevailed
The insurer's motion to dismiss for failure to prosecute was premature under CPLR 3216 (b) (2). After vacating a default judgment, the Civil Court deemed the insurer's answer served. The insurer later served a 90-day demand to file a notice of trial and moved to dismiss before one year had elapsed from the date the answer was deemed served. That timing failed a statutory precondition to dismissal. The Appellate Term, Second Department, reversed the order granting dismissal and denied the insurer's motion, reinstating the provider's action for assigned no-fault benefits.
Appellate Term, Second Department
Apr 16, 2021
2021 NY Slip Op 50323(U)
Provider prevailed
No-fault claims arising from separate accidents do not alone warrant severance under CPLR 603. The insurer sought to sever the provider's first cause of action from four others, relying only on the pleadings and asserting separate accidents and multiple defenses. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying severance. Separate accidents and 55 pleaded affirmative defenses did not compel a conclusion that the claims presented different factual or legal questions. Severance rests in judicial discretion, and the insurer did not establish an improvident exercise of that discretion. The court clarified that Premier Surgical Servs., P.C. v GEICO Gen. Ins. Co. rested on assignor-specific IME nonappearance defenses, rather than separate accidents alone.
Appellate Term, Second Department
Apr 16, 2021
2021 NY Slip Op 50325(U)
Insurer prevailed
The insurer obtained vacatur of a discovery preclusion order because the provider's motion violated an appellate stay. The stay remained effective despite the insurer's failure to perfect its appeal by the specified deadline; vacatur required further action. The provider nevertheless obtained an unopposed order precluding trial evidence under CPLR 3126. Reargument or renewal was unavailable because the insurer had not opposed that motion, and CPLR 5015 (a) (4) did not apply because violating a stay did not implicate subject matter jurisdiction. Vacatur was warranted in the interests of substantial justice. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer's motion to vacate the preclusion portion of the prior order, and denied the provider's preclusion motion.
Appellate Term, Second Department
Apr 16, 2021
2021 NY Slip Op 50326(U)
Provider prevailed
The insurer failed to show that a declaratory judgment based on EUO nonappearance barred the provider's claims by res judicata. The insurer obtained a default declaration relieving it of payment obligations for claims for which it had requested an EUO and the provider failed to appear. In the provider's action for assigned no-fault benefits, the insurer sought summary judgment based on that declaration. It did not establish that the services at issue were ones for which an EUO had been timely requested and the provider failed to appear. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Apr 9, 2021
2021 NY Slip Op 50303(U)
Insurer prevailed
MVAIC established that it timely served an answer by mail and therefore had not defaulted. The provider obtained a clerk's default judgment in its action for assigned no-fault benefits. MVAIC moved to vacate, submitting an affidavit showing that its attorney mailed the answer to the provider's attorneys within the time to appear under CPLR 320 (a), CPLR 2103 (b) (2), and CCA 2102. The provider's attorney's affirmation and an employee's affidavit asserting nonreceipt did not rebut that proof of service. Because MVAIC had not defaulted, there was no basis for entry of the judgment. The Appellate Term, Second Department, affirmed the order granting MVAIC's motion to vacate.
Appellate Term, Second Department
Apr 9, 2021
2021 NY Slip Op 50299(U)
Split result
The provider established that its claims were governed by former regulations requiring no-fault interest at 2% per month compounded. Claim forms submitted on renewal showed treatment in May 2000, and the provider reasonably justified omitting them from its original motion to recalculate judgment interest. The Appellate Term, Second Department, affirmed the order, insofar as reviewed, granting renewal under CPLR 2221 (e) and recalculation under former 11 NYCRR 65.15 (h) (1). It dismissed the provider's cross-appeal challenging the provision setting postjudgment interest at 9% annually under CPLR 5004. That provision was sua sponte and not appealable as of right under CCA 1702 (a) (2), and the court declined leave to appeal.
Appellate Term, Second Department
Apr 9, 2021
2021 NY Slip Op 50301(U)
Provider prevailed
The insurer's summary judgment motion was denied because it did not establish that its out-of-state policy lacked no-fault coverage. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The insurer failed to demonstrate that its policies were outside New York's financial security and first-party benefit requirements under Insurance Law § 5107 and 11 NYCRR 65-1.8, or that the policy otherwise did not mandate coverage.
Trial court, Second Department
Apr 30, 2021
2020 NY Slip Op 51613(U)
The Workers' Compensation Board has primary jurisdiction to determine whether the Workers' Compensation Law applies. The Civil Court, Queens County, held the insurer's summary judgment motion in abeyance pending the Board's determination. The insurer sought dismissal on the ground that workers' compensation coverage was primary. Its proof was inadmissible: it laid no foundation for a transcript of the assignor's unsworn recorded statement, and the police report was neither certified nor sworn or supported by an affidavit based on personal knowledge. Even admissible evidence would not permit the court to decide applicability before the Board resolved the parties' rights.
Trial court, Second Department
Apr 30, 2021
2021 NY Slip Op 50396(U)
Insurer prevailed
The provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances. The Civil Court, Kings County, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion. Affidavits established mailing of the scheduling letters and timely denials, and certified transcripts established nonappearance. Although 11 NYCRR 65-3.5 (e) requires reasonably convenient scheduling, the provider offered no specific alternative dates or support for two- to three-month adjournments beyond a booked medical schedule. The demand for a flat, upfront attendance fee was improper. Because both EUO requests preceded receipt of the bills, the verification notification requirements of 11 NYCRR 65-3.5 and 65-3.6 did not apply. The insurer's remaining requests were denied as academic.
Trial court, Second Department
Apr 29, 2021
2021 NY Slip Op 50382(U)
Split result
The insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills. The Civil Court, Queens County, granted summary judgment dismissing seven benefit claims for two EUO nonappearances and one unspecified claim for failure to state a cause of action under CPLR 3211 (a) (7). Three paid claims survived solely for trial on statutory interest because payment exceeded the untolled 30-day period. Insurance Law § 5106 (a) entitled the provider to interest and attorney fees. Following LMK Psychological Servs., the court dismissed separate fee claims for individual bills but preserved the sixteenth cause of action for fees on the surviving claims. Without a provider cross motion, the court declined to award interest or fees sua sponte.
Trial court, Third Department
Apr 23, 2021
2021 NY Slip Op 21120
Executive Law § 203 does not cap a state self-insurer's loss-transfer liability at $50,000. The no-fault insurer sought confirmation of an arbitration award reimbursing its optional basic economic loss (OBEL) payment after the state self-insurer had reimbursed $50,000 in basic benefits. The Supreme Court, Albany County, confirmed the award and denied the self-insurer's cross motion to vacate under CPLR 7511 (b) (1) (iii). Executive Law § 203 limits a private claims administrator's settlement authority without Attorney General approval; the claim was resolved through contested arbitration. Under Insurance Law § 5102 (a) (5), Insurance Law § 5105 and 11 NYCRR 65-1.2 (a), the arbitrators rationally allowed recovery of OBEL payments and did not exceed their authority.
Trial court, Second Department
Apr 20, 2021
2021 NY Slip Op 21108
Provider prevailed
An insurer's post-EUO verification requests concerning fraudulent incorporation are subject to judicial review for reasonableness. The Civil Court, Kings County, granted reargument under CPLR 2221 but adhered to its denial of the insurer's summary judgment motion, leaving the outstanding-verification defense for trial. After a five-hour EUO and its own investigation, the insurer sought corporate, financial and licensing records. Under 11 NYCRR 65-3.2 (c) and 65-3.5 and Mallela, investigations require good cause, and additional requests may exceed proper claim verification. The insurer also acknowledged receiving some documents without identifying what remained outstanding, preventing resolution on the incomplete record. The propriety of the requests remained a factual issue; the court expressly made no substantive ruling on the Mallela defense.
Trial court, Second Department
Apr 16, 2021
2021 NY Slip Op 50337(U)
Insurer prevailed
The assignor's attendance at one EUO did not cure the failure to appear for two scheduled continued EUOs. The Civil Court, Queens County, granted the insurer summary judgment dismissing the provider's complaint. The attended EUO was not completed because the assignor's counsel had a conflicting appointment. Scheduling letters and mailing affidavits established timely requests for continued EUOs under 11 NYCRR 65-3.6 (b), and transcripts established nonappearance at both. Mailing affidavits also established denial within 30 days after the last scheduled EUO. The provider offered no contrary evidence sufficient to raise a factual issue. The court found a breach of the condition precedent to payment and deemed the fee-schedule defense academic.
Trial court, Second Department
Apr 15, 2021
2021 NY Slip Op 50313(U)
Provider prevailed
An assignor's status as a qualified person does not depend on MVAIC's receipt of written proof that the vehicle owner lacked insurance. MVAIC sought summary judgment dismissing the provider's claims because the assignor had not supplied an affidavit of no insurance or other proof that the vehicle was uninsured. The Civil Court, Queens County, denied the motion. MVAIC bore the burden of proving disqualification under Insurance Law §§ 5202 (b), 5208, and 5221 (b) (2). Its submissions included the assignor's sworn notice listing a New York address and passenger status. The examiner's account of an investigator's efforts was hearsay, and DMV abstracts lacked an admissibility foundation under CPLR 4518 (a). MVAIC therefore failed to establish entitlement to judgment under CPLR 3212 (b).
Trial court, First Department
Apr 14, 2021
2021 NY Slip Op 50314(U)
Provider prevailed
The insurer failed to establish that three manipulation-under-anesthesia procedures were medically unnecessary. After a bench trial, the Civil Court, Bronx County, directed judgment for the provider on all three claims. The insurer's expert cited no authority requiring a second medical opinion or blood screening. The treatment records supported the initial procedure under National Academy of Manipulation Under Anesthesia Physicians protocols because pain persisted despite conservative treatment, and supported the later procedures because recovery remained below the protocols' threshold. The court left open whether hip and shoulder manipulation exceeded chiropractic practice under Education Law § 6551 (1), finding sufficient support for the compensation sought based on spinal manipulation alone.
Trial court, Second Department
Apr 13, 2021
2021 NY Slip Op 50311(U)
Split result
The insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others. The Civil Court, Queens County, granted the insurer summary judgment dismissing six claims and granted the provider summary judgment on two, with statutory interest. Explanations of benefits stating that payment awaited an EUO did not request verification or toll the 30-day deadline under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Mailing evidence and transcripts established timely EUO requests and nonappearances for the six dismissed claims. One bill required trial because receipt was disputed. Under LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., attorney fees were calculated per insured, and their determination remained premature pending trial.
Trial court, Second Department
Apr 13, 2021
2021 NY Slip Op 50336(U)
Provider prevailed
A workers' compensation determination that an accident was work-related does not divest Civil Court of no-fault jurisdiction. The Civil Court, Richmond County, denied the insurer's motion to dismiss under CPLR 3211 (a) (2). Although factual eligibility for workers' compensation benefits was outside the court's jurisdiction, the provider sought payment under a no-fault policy, a claim within its jurisdiction under New York City Civil Court Act § 202. Workers' compensation benefits could offset first-party benefits under Insurance Law § 5102 (b) (2). The court did not reach policy-exclusion or preclusion issues because the insurer submitted neither policy documentation nor a denial form.
Trial court, Second Department
Apr 9, 2021
2021 NY Slip Op 50342(U)
Insurer prevailed
The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction. The Civil Court, Kings County, granted the insurer's cross motion for summary judgment dismissing the complaint and denied the provider's motion. The insurer failed to establish the proper physical-therapy conversion factor under Insurance Law § 5108 (a), relying on counsel's assertions without a supporting examiner or coder affidavit or applicable authority. Nevertheless, the entire bill fell within the policy's $200 deductible, which the declarations page established. A litigation representative's affidavit and mailing report established denial within 30 days of receipt. The court considered the provider's late opposition papers because no prejudice was demonstrated.
Trial court, First Department
Apr 7, 2021
2021 NY Slip Op 50284(U)
Provider prevailed
The insurers failed to establish timely EUO or IME requests and were denied a default judgment declaring no coverage. The Supreme Court, New York County, found the proof insufficient under CPLR 3215 (f): no claim forms, bills, or receipt dates supported conclusory assertions of timeliness. Under 11 NYCRR 65-3.5 (b) and (d), completed verification forms trigger the 15-business-day request deadline and 30-calendar-day IME deadline, even when provider forms prompt an assignor's examination. The court compelled acceptance of two providers' late answer under CPLR 3012 (d), citing brief delay, law-office failure, no identified prejudice, and a potentially meritorious defense. It allowed 30 days after service of the order with notice of entry to renew against remaining defaulters or face dismissal, and left the EUO-justification challenge unresolved.
