Appellate Division, Second Department
Jul 21, 2021
2021 NY Slip Op 04484
Provider prevailed
Dicta do not have preclusive effect under res judicata, collateral estoppel or law of the case. The provider sought a declaration under CPLR 3001 of the interest rate on its no-fault judgment after the Appellate Term issued an advisory statement favoring CPLR 5004. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, sustaining declaratory relief and denying the insurer's cross petition for dismissal and sanctions. Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) required postjudgment interest at 2% per month compounded, superseding CPLR 5004. The court affirmed denial of renewal, dismissed the reargument appeal and remitted for entry of judgment; a partial dissent would have barred declaratory relief as precluded and an improper collateral attack.
Appellate Term, Second Department
Jul 30, 2021
2021 NY Slip Op 50772(U)
Provider prevailed
The defendant failed to provide a sufficiently detailed explanation of the office failure offered to excuse its default. After failing to appear or answer the provider's assigned no-fault benefits complaint, the defendant moved to vacate the resulting default judgment under CPLR 5015 (a) (1). Its claims representative's papers did not adequately explain the alleged inadvertent office failure. They also lacked an affidavit from the person responsible or any explanation for that omission. Because vacatur required both a reasonable excuse and a potentially meritorious defense, the court did not reach the asserted defense. The Appellate Term, Second Department, affirmed the denial of the defendant's motion.
Appellate Term, Second Department
Jul 30, 2021
2021 NY Slip Op 50764(U)
Provider prevailed
The insurer's summary judgment motion based on EUO nonappearance was denied because it failed to establish timely denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the insurer had not shown that it was free from preclusion after the provider missed initial and follow-up EUOs. The court reached no other issue.
Appellate Term, Second Department
Jul 30, 2021
2021 NY Slip Op 50765(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims based on EUO nonappearance was denied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal Allay Med. Servs., P.C. v Nationwide Ins., decided the same day, No. 2019-118 K C.
Appellate Term, Second Department
Jul 30, 2021
2021 NY Slip Op 50771(U)
Insurer prevailed
The provider's claims were barred by res judicata based on a declaratory judgment of which the appellate court took judicial notice. The Appellate Term, Second Department, affirmed summary judgment dismissing the assigned no-fault action. The insurer's motion included an earlier order granting a default judgment on liability without declaring the parties' rights. The ensuing declaratory judgment, submitted on appeal, declared that the insurer owed no benefits to the provider in current or future proceedings because the provider was ineligible. As a public record, that judgment could be judicially noticed. A recovery would impair rights established by it; the court reached no other issue.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50729(U)
Insurer prevailed
MVAIC was entitled to sever six assignors' claims because they presented few common factual issues and required numerous defense witnesses. The provider's complaint sought assigned no-fault benefits arising from six separate accidents on different dates. The denial forms, explanations of review, and correspondence showed that the facts of each claim were likely to raise few, if any, common factual issues. A single trial would require an extraordinary number of defense witnesses. The Appellate Term, Second Department, reversed the order denying MVAIC's motion under CPLR 603 and granted severance of each assignor's claim into a separate action.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50731(U)
Insurer prevailed
The provider's action was barred by res judicata because recovery would impair rights established in a declaratory judgment action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. Independently, the insurer established timely mailing of the initial and follow-up EUO scheduling letters and the provider's failure to appear on either date, and the provider did not rebut that proof. The Civil Court's finding under CPLR 3212 (g) that the insurer had established timely mailing of its denial was unchallenged. Either ground warranted dismissal.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50719(U)
An order that leaves a motion branch undecided is not appealable as to that branch. The Appellate Term, Second Department, dismissed the insurer's appeal from the Civil Court's failure to decide its request to toll no-fault statutory interest. The underlying motion also sought dismissal and discovery relief, but the insurer limited its appeal to interest tolling. The undecided branch remained pending. The appellate court declined to review a subsequent order addressing interest because neither that order nor its supporting motion papers appeared in the record, expressly leaving open whether the later order would be reviewable on this appeal under CPLR 5517.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50722(U)
Insurer prevailed
A default judgment under CPLR 3215 (i) may be entered only in a pending action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion to vacate an administrative dismissal and enter a default judgment after incomplete settlement payment. The stipulation was unfiled, and the record showed no insurer appearance or answer. The court therefore inferred dismissal under CPLR 3215 (c) for failure to seek a default judgment within one year. Relief required a reasonable excuse for delay and a potentially meritorious cause of action; the provider's papers made no sufficient showing. The direction to pay the settlement shortfall was outside the appealed portion, and the court passed on no other issue.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50724(U)
Provider prevailed
The insurer failed at trial to establish that the provider's charges exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, affirmed the judgment awarding the provider no-fault benefits after a nonjury trial. The parties had stipulated that fee schedule application was the sole trial issue and consolidated the action for trial with two others involving the same provider and insurer. Although appellate review of a nonjury determination is as broad as the trial court's power, credibility findings receive substantial deference. The record supported the Civil Court's assessment of the insurer's witness and trial proof, leaving no basis to disturb the judgment.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50725(U)
Provider prevailed
The provider's judgment after a nonjury trial on the workers' compensation fee schedule was affirmed. The parties stipulated that fee schedule application was the sole issue and consolidated this action for trial with two others involving the same provider and insurer. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2019-1634 K C.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50726(U)
Provider prevailed
The provider's judgment after a nonjury trial on the workers' compensation fee schedule was affirmed. The parties stipulated that fee schedule application was the sole issue and consolidated this action for trial with two others involving the same provider and insurer. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2019-1634 K C.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50728(U)
Insurer prevailed
The insurer's unrebutted IME report established a lack of medical necessity for the provider's subsequent services. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The affirmed report from the doctor who examined the assignor before the services were rendered supplied a factual basis and medical rationale for concluding that further treatment was unnecessary. The provider did not challenge the Civil Court's finding under CPLR 3212 (g) that the claims had been timely denied. The appellate court reached no other issue, including the insurer's fee schedule defense.
Appellate Term, Second Department
Jul 23, 2021
2021 NY Slip Op 50730(U)
Insurer prevailed
The provider's first four causes of action were premature because the insurer had not received all requested verification. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint pursuant to the insurer's successful summary judgment motion. The provider's argument that its verification responses were adequate lacked merit, and it raised no triable issue concerning the outstanding verification. For the fifth and sixth causes of action, the provider also failed to raise a triable issue against the insurer's showing that the services lacked medical necessity and the amounts sought exceeded the workers' compensation fee schedule.
Appellate Term, Second Department
Jul 22, 2021
2021 NY Slip Op 50715(U)
Insurer prevailed
An insurer's adversarial treatment of a provider was not a basis to deny summary judgment on an EUO nonappearance defense. The insurer established timely mailing of the initial and follow-up EUO scheduling letters, the provider's nonappearance, and timely denials of bills 1 through 13. Appearance at a duly demanded EUO was a condition precedent to liability under the policy. A separate claim was also dismissed because the insurer had undisputedly paid it in arbitration. Dismissal of bills 14 through 16, which were also denied for lack of medical necessity, was unchallenged. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer summary judgment dismissing the entire complaint, and denied the provider's cross motion in its entirety.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50643(U)
Insurer prevailed
The provider failed to establish reasonable justification for submitting five claims to MVAIC beyond the 45-day deadline. MVAIC timely denied the claims and advised that reasonable justification could excuse delay under 11 NYCRR 65-3.3 (e). The provider showed that it first sent the claims to an insurer using incorrect insurance information. It did not establish that it explained that choice to MVAIC, despite having submitted another claim to MVAIC before the services at issue, or that it resubmitted within a reasonable time after learning where to send them. Applying the submission requirement in 11 NYCRR 65-1.1, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC summary judgment dismissing the five claims.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50644(U)
Insurer prevailed
The insurer established the provider's failure to appear for two duly scheduled EUOs and timely denial of the claims on that ground. In the assigned no-fault benefits action, the insurer demonstrated timely mailing of the initial and follow-up EUO scheduling letters, nonappearance on both dates, and timely denials. That proof established prima facie entitlement to summary judgment, and the provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50632(U)
Insurer prevailed
The insurer's motion to vacate a default judgment entered for failure to appear or answer was granted on appeal. The Appellate Term, Second Department, reversed the order denying vacatur in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co., No. 2019-341 K C.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50637(U)
Insurer prevailed
The insurer's summary judgment motion asserting that it had issued no automobile policy covering the accident was granted on appeal. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order and denied the provider's cross motion. It relied on the reasons stated in Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50638(U)
Insurer prevailed
The provider's motion for entry of a default judgment in its action for assigned no-fault benefits was denied on appeal. The Appellate Term, Second Department, reversed the order granting the provider's motion for the reasons stated in the companion appeal decided the same day, Daily Med. Equip. Distrib. Ctr., Inc. v American Ind. Ins. Co., No. 2019-341 K C.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50639(U)
Insurer prevailed
The provider's default judgment motion failed because it did not establish personal jurisdiction over the insurer. The summons and complaint in this assigned no-fault action were sent by certified mail, return receipt requested, under CPLR 312-a. Service under that provision is complete when the signed acknowledgment of receipt is mailed or delivered to the plaintiff, and that acknowledgment constitutes proof of service. The provider submitted no acknowledgment and did not demonstrate that service was otherwise completed within the 120 days required by CCA 411. Applying CPLR 312-a (b), the Appellate Term, Second Department, reversed the order granting the provider's motion and denied it.
Appellate Term, Second Department
Jul 2, 2021
2021 NY Slip Op 50641(U)
The rule against successive summary judgment motions does not apply when the court did not consider the insurer's initial cross motion. In this action for assigned no-fault benefits, the Civil Court, Kings County, had treated an untimely cross motion only as opposition to the provider's motion. It later denied the insurer's separate summary judgment motion as moot. The Appellate Term, Second Department, reversed and remitted for a determination on the merits. The prior statement that the case would proceed to trial on defenses raised in the denials effectively made CPLR 3212 (g) findings limiting the trial; it neither required a trial nor decided a litigated issue constituting binding law of the case.
Trial court, Second Department
Jul 28, 2021
2021 NY Slip Op 21214
Insurer prevailed
The insurer's EUO no-show denials were timely because later EUOs were scheduled at the provider's request for adjournments. The Civil Court, Kings County, distinguished Quality Health Supply Corp. v Nationwide Ins., where the record showed no objections or postponement requests. Here, the insurer accommodated repeated requests for two months' notice, proved timely mailing and four nonappearances under 11 NYCRR 65-1.1, and denied the claims seven days after the final scheduled EUO. The provider supplied no personal-knowledge affidavit establishing unavailability or proposed available dates and demanded an unauthorized appearance fee. An erroneous transcript time did not raise a factual issue given the notice, supporting affidavit, and provider's stated unavailability. The court granted the insurer summary judgment under CPLR 3212 (b), dismissing the complaint.
Trial court, Second Department
Jul 13, 2021
2021 NY Slip Op 50750(U)
Split result
⚠ Reversed by MSB Physical Therapy, P.C. v Nationwide Ins. (2025 NY Slip Op
50829(U))
EUO requests sent before receipt of a claim do not toll the insurer's 30-day period to pay or deny it. The Civil Court, Kings County, granted the provider summary judgment on claims one through five, with interest and attorney's fees, and the insurer dismissal of claims six through eight. Lengthy adjournment requests raised no triable issue under 11 NYCRR 65-3.5 (e). Claim one's denial exceeded 30 days after the second postclaim nonappearance; claims two through five lacked timely postclaim verification. For claims six through eight, timely postclaim follow-up tolled the deadline, and denial followed the second postclaim nonappearance within 30 days. The court applied 11 NYCRR 65-3.8 (a) (1) and (b) (3), without reaching res judicata or collateral estoppel.
Trial court, First Department
Jul 9, 2021
2021 NY Slip Op 50652(U)
Insurer prevailed
The provider's repeated discovery objections violated two orders compelling disclosure on the insurer's fraudulent-incorporation defense. The Civil Court, Bronx County, granted the insurer's CPLR 3126 motion conditionally, requiring complete responses within 60 days and a deposition within 90 days, with automatic dismissal for noncompliance. Corporate, tax, and financial records were material and necessary under CPLR 3101 (a) because the insurer's affirmative defense and investigator's affidavit raised questions about lay ownership. The provider's belated CPLR 3103 protective-order motion did not preserve objections under CPLR 3122. Prior trial preclusion inadequately protected the insurer because the provider possessed the evidence needed to prove the defense. Canceling a deposition pending document production did not waive the insurer's right to depose the provider.
