Appellate Division, Second Department
Aug 18, 2021
2021 NY Slip Op 04728
Insurer prevailed
The insurer established that a provider's judgment arose from a larger fraudulent scheme, permitting a collateral attack. The Appellate Division, Second Department, affirmed a preliminary injunction restraining the defendants from enforcing judgments obtained in related no-fault actions. The insurer had obtained a default declaration that the provider corporations were unlawfully incorporated and ineligible for benefits; a provider later sought to enforce an earlier collection judgment. Under Newin Corp. v Hartford Acc. & Indem. Co., the bar against collateral attacks based on fraud yields where perjury serves a larger fraudulent scheme. Evidence of a federal prosecution demonstrated that the collection judgment was part of such a scheme, broader than the issues determined in that action.
Appellate Term, Second Department
Aug 27, 2021
2021 NY Slip Op 50844(U)
Insurer prevailed
Affirmative defenses receive liberal construction on a CPLR 3211 (b) motion and should remain if their availability is doubtful. The Appellate Term, Second Department, reversed dismissal of the defendant's defenses and denied the provider's motion. The provider improperly demanded summary judgment proof, offered disputed materials as documentary evidence under CPLR 3211 (a) (1), and sought to strike failure to state a cause of action. It also incorrectly asserted preclusion of the fee schedule defense under 11 NYCRR 65-3.8 (g), required EUO justification as part of the defendant's prima facie burden, and demanded a denial for outstanding verification contrary to 11 NYCRR 65-3.8 (b) (3). Although some defenses were boilerplate, the court declined to separate potentially valid arguments from the motion's invalid or questionable ones.
Appellate Term, Second Department
Aug 27, 2021
2021 NY Slip Op 50841(U)
Split result
The provider could not retroactively end a verification toll by dropping the services at issue after commencing its action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the action as premature, while affirming leave to amend the complaint because objections were waived. Timely initial and follow-up verification requests remained unanswered, tolling payment or denial under 11 NYCRR 65-3.8 (a) (1). Later bills omitted electromyography services but were not labeled amendments, and the record showed no contemporaneous communication that they replaced the originals. These duplicate bills created no new payment obligation. The court left open whether withdrawing the electromyography claims during claims processing, before suit, could have ended the toll.
Appellate Term, Second Department
Aug 20, 2021
2021 NY Slip Op 50833(U)
Insurer prevailed
The provider's failure to file a notice of trial after a 90-day demand was not excused by its unexplained claim of law office failure. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss for want of prosecution under CPLR 3216. The provider neither filed within the demanded period nor timely moved to vacate the demand or extend the period under CPLR 2004. Although it had served a notice of trial, the insurer had no obligation to file that notice or its own. The calendar clerk's affidavit gave no detailed, credible explanation of the failure to file and supplied no justifiable excuse under CPLR 2005; the court therefore did not reach whether the claim had merit.
Appellate Term, Second Department
Aug 6, 2021
2021 NY Slip Op 50785(U)
Insurer prevailed
The insurer established a reasonable excuse for default through process-receipt procedures and records showing no record of the lawsuit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, vacating the default judgment under CPLR 5015 (a) (1) and extending the insurer's time to answer. The alleged recipient of process described procedures that would have created a record and documented receipt of process in other cases on the alleged service date. The trial court did not abuse its discretion in accepting that excuse. The provider challenged only the excuse, leaving the potentially meritorious defense uncontested; its remaining arguments concerned dismissal relief that had been denied and was not cross-appealed.
Trial court, First Department
Aug 18, 2021
2021 NY Slip Op 50804(U)
Insurer prevailed
A provider's EUO objection written after the scheduled examination date is ineffective and does not excuse nonappearance. The insurer proved mailing through counsel's personal review, address verification, and mailing of the notices, and proved two nonappearances through certified transcripts. The provider objected one day after the first EUO, preventing a meaningful response or rescheduling, and never objected to the second notice. The Civil Court, Bronx County, granted the insurer summary judgment dismissing all eleven claims with prejudice. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy PLLC, nonappearance permitted retroactive denial of all claims. The court expressly left unresolved whether an insurer must justify an EUO after a timely objection and did not reach the parties' medical necessity arguments.
