Appellate Division, First Department
Jun 29, 2021
2021 NY Slip Op 04100
Provider prevailed
The out-of-state insurer's renewal evidence failed to eliminate a factual issue concerning its affiliation with a New York insurer. The insurer sought de novo adjudication under Insurance Law § 5106 (c) after master arbitration, asserting that the underlying arbitrations lacked personal jurisdiction. On renewal, it supplied favorable arbitration decisions referenced but omitted from its original summary judgment motion. The Appellate Division, First Department, affirmed the denial of renewal to the extent appealable. Under CPLR 2221 (e) (2), the submissions would not have changed the prior determination because they left unresolved whether the insurer had a control relationship with an insurer authorized to transact or transacting business in New York under Insurance Law § 5107 (a). The remaining arguments sought reargument, whose denial was not appealable.
Appellate Division, First Department
Jun 3, 2021
2021 NY Slip Op 03536
Insurer prevailed
The insurer established entitlement to a default declaration of noncoverage based on a founded belief that the collision was staged. The Appellate Division, First Department, reversed the orders insofar as appealed from, granted the insurer's default motion in its entirety and declared noncoverage. Proof of proper service, defaults and a claims representative's affidavit satisfied CPLR 3215 (f); EUO testimony and an arbitration award also supported the insurer's belief. The defaults admitted the complaint's allegations of an intentional, staged collision. One claimant's repeated EUO nonappearances independently vitiated coverage. Because those EUO requests preceded receipt of a claim form, the insurer did not have to establish compliance with the verification timing requirements of 11 NYCRR 65-3.5.
Appellate Division, First Department
Jun 1, 2021
2021 NY Slip Op 03399
Provider prevailed
The claimant's opposition to the insurer's summary judgment motion was timely filed under CPLR 2214 (b). The Appellate Division, First Department, reversed the order insofar as appealed from, vacated it and remanded for further proceedings. Supreme Court had granted the insurer summary judgment declaring no obligation to pay no-fault benefits on the mistaken ground that the claimant submitted no opposition. Because Supreme Court had not reached the merits, it had to consider the motion in the first instance.
Appellate Term, Second Department
Jun 21, 2021
2021 NY Slip Op 50577(U)
Insurer prevailed
The insurer established that res judicata barred the provider's claims despite a one-day discrepancy in the alleged accident date. An earlier declaratory judgment in Supreme Court, New York County, established no duty to pay claims arising from the accident. Signed NF-2 applications, an assignor's EUO testimony and other documents tied the claims to that accident. The claims supervisor explained that separate claim numbers identified liability and no-fault claims. The provider's contrary claim forms and complaint allegations lacked personal knowledge and failed to rebut the insurer's showing that the claims concerned the same accident. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Jun 21, 2021
2021 NY Slip Op 50576(U)
Insurer prevailed
MVAIC's motion to vacate the default judgment was granted because it established a reasonable excuse for its default. The Appellate Term, Second Department, affirmed under CPLR 5015 (a) (1), which requires a reasonable excuse and a potentially meritorious defense. The provider did not challenge the Civil Court's implicit finding of a potentially meritorious defense, and the appellate court found no reason to disturb the order.
Appellate Term, Second Department
Jun 4, 2021
2021 NY Slip Op 50521(U)
Insurer prevailed
The provider's request to correct its summons under CPLR 2001 was unpreserved because it was not raised in opposition to dismissal. The action was filed in Civil Court, Kings County, but the summons directed the insurer to appear in Civil Court, Queens County. After a default judgment was entered, the insurer obtained vacatur and dismissal based on the defective summons. The provider appealed only the dismissal, arguing that it should have been allowed to correct the error. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the provider had not raised that argument below.
Trial court, Second Department
Jun 30, 2021
2021 NY Slip Op 50624(U)
Split result
The provider's detailed verification objections left factual issues about compliance with the insurer's requests. The Civil Court, Kings County, granted the insurer's summary judgment motion only to establish timely mailing of verification requests and the provider's cross motion only to establish timely receipt of seven bills. The provider stated that some requested documents had been supplied, others did not exist, and others were improperly requested. These responses raised factual issues under 11 NYCRR 65-3.5 (o), but the provider's vague affidavit and missing response copies did not establish full compliance or improper requests. The court denied dismissal of the affirmative defenses under CPLR 3211 (b), noting that fraudulent incorporation under Mallela and 11 NYCRR 65-3.16 (a) is nonprecludable. The outstanding verification defense remained for trial.
Trial court, Second Department
Jun 30, 2021
2021 NY Slip Op 50737(U)
Split result
The insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims. The District Court, Suffolk County, denied dismissal and awarded the provider summary judgment on those claims and ten claims supported by postal mailing proofs. Those claims were overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), warranting judgment under CPLR 3212 (b). Conflicting medical opinions required trial. The late-submission claim remained for trial under alternative repudiation and justification analyses, applying 11 NYCRR 65-3.5 (l). The insurer obtained partial dismissal for prior payments proved by deposited checks, but failed to substantiate fee-schedule calculations or PPO applicability for the unpaid balances.
Trial court, Second Department
Jun 29, 2021
2021 NY Slip Op 51306(U)
Insurer prevailed
The provider failed to justify substituting a new insurer after the limitations period expired or to establish relation back. The Civil Court, Kings County, denied the unopposed motion to amend under CPLR 305 (c), CPLR 2001 and CPLR 3025 (b). The proposed substitution fell outside the six-year limitations period. CPLR 305 (c) could correct a misnomer only where the intended defendant had been served, but no service or notice to the proposed insurer was shown. The provider also failed to establish the relation-back requirements under CPLR 203 (c) and (f), or diligent efforts to identify the proper party before limitations expired. Because the provider supplied no factual basis for relief, the court did not reach prejudice to the proposed insurer.
Trial court, Second Department
Jun 24, 2021
2021 NY Slip Op 50599(U)
Insurer prevailed
An EUO request sent after 15 business days but within 30 calendar days tolls the time to pay or deny, with a reduction for lateness. The Civil Court, Queens County, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion. EUO scheduling requests constitute additional verification under 11 NYCRR 65-3.5 (b). The initial request was two business days late but sent within 30 calendar days, reducing the denial period to 28 days under 11 NYCRR 65-3.8 (l). The insurer proved three nonappearances and a denial seven days after the third EUO. The provider raised no factual issue; the insurer was not required to state reasons in its notices or provide objective reasons for requesting the EUO.
Trial court, Second Department
Jun 24, 2021
2021 NY Slip Op 50610(U)
Insurer prevailed
The insurer's late, successive summary judgment motion was granted based on a subsequent declaratory judgment barring coverage. The Civil Court, Kings County, dismissed the provider's no-fault complaint with prejudice. Although the motion was filed more than 120 days after the notice of trial, the subsequent Supreme Court order supplied good cause under CPLR 3212 (a) and new evidence supporting a second motion. That order did not exist before joinder of issue or when the insurer made its first motion. The insurer had preserved res judicata and collateral estoppel in its answer, and the declaratory judgment had preclusive effect given the identity of parties and issues. Its entry on default did not defeat res judicata.
Trial court, Second Department
Jun 24, 2021
2021 NY Slip Op 50659(U)
Insurer prevailed
Claims for no-fault money damages against the State Insurance Fund must be brought in the Court of Claims. The Civil Court, Kings County, granted the Fund's motions to vacate default judgments and dismissed ten provider actions without prejudice to seeking relief in the Court of Claims. Under Court of Claims Act § 9 and Workers' Compensation Law § 76 (1), the Fund was a state agency; judgments entered without subject matter jurisdiction were void, and the defect was nonwaivable. The court did not reach the other vacatur arguments. It denied monetary sanctions under 22 NYCRR 130-1.1 but enjoined the providers and their counsel from pursuing further money-judgment actions against the Fund in Civil Court without prior court approval.
Trial court, Second Department
Jun 8, 2021
2021 NY Slip Op 50523(U)
Insurer prevailed
The provider failed to prove compliance with verification requests or a timely written justification for noncompliance. The Civil Court, Kings County, granted the insurer's summary judgment motion dismissing the complaint and denied the provider's cross motion as moot. An EUO concerning unrelated claims preceded receipt of the disputed bills, but verification requests sent after receipt tolled the insurer's time to deny; follow-up requests were also timely. The provider's affidavit neither identified the documents allegedly mailed nor attached the responses. Its litigation objection, served over two years after the initial request, was untimely under 11 NYCRR 65-3.5 (o). The provider supplied no written proof reasonably justifying its failure to comply.
Trial court, First Department
Jun 8, 2021
2021 NY Slip Op 50532(U)
Insurer prevailed
A provider's failure to attend duly scheduled EUOs defeats coverage even when the insurer's denial is untimely. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice and denied the provider's cross motion. The insurer established proper EUO requests and two nonappearances. Under 11 NYCRR 65-1.1 (d) and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, nonappearance was a nonprecludable breach of a coverage condition. The provider's objection letters lacked an admissibility foundation. The court found that 11 NYCRR 65-3.5 (a) did not bar ownership-document requests to investigate reimbursement eligibility under Mallela, 11 NYCRR 65-3.16 (a) (12) and Business Corporation Law § 1508 (a).
Trial court, First Department
Jun 1, 2021
2021 NY Slip Op 21157
Insurer prevailed
A provider may not condition compliance with an MRI-film verification request on advance payment of reproduction costs. Although radiology ground rule 8 of the Workers' Compensation Medical Fee Schedule permitted reproduction charges, payment was independent of the insurer's right to verification. The provider's demand for advance payment did not end the toll arising from timely verification and follow-up requests under 11 NYCRR 65-3.6 (b), even though the insurer promised payment and never sent it. The Civil Court, New York County, granted the insurer summary judgment dismissing the complaint without prejudice as premature. It expressly left open whether unpaid reproduction costs could justify noncompliance if the insurer instead sought dismissal under the 120-day rule in 11 NYCRR 65-3.5 (o).
