Appellate Division, First Department
Oct 26, 2021
2021 NY Slip Op 05807
An injured claimant's release did not defeat the insurer's accrued subrogation right because the tortfeasors had prior notice. The Appellate Division, First Department, affirmed the order, insofar as appealed from, denying the tortfeasors' motion to dismiss the insurer's action concerning additional PIP benefits. Following Fasso v Doerr, subrogation accrued upon payment. A reimbursement notice was mailed to the tortfeasors' insurer three days before the release, and that insurer's knowledge was imputed to the tortfeasors as its principals. The subrogation examiner authenticated the notices as business records under CPLR 4518 (a). Under CPLR 2103 (b) (2), service was complete upon mailing; the five-day extension did not apply because no legally prescribed period was measured from service.
Appellate Term, Second Department
Oct 29, 2021
2021 NY Slip Op 51031(U)
Insurer prevailed
A staged-accident coverage defense requires no denial and must be considered before granting a provider summary judgment. The Civil Court granted the provider's motion after finding the insurer's EUO defense unpreserved, but did not address the insurer's separate staged-accident defense. The provider also failed to establish prima facie entitlement to judgment because its proof did not show untimely denials or timely denials that were conclusory, vague, or legally meritless. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the coverage defense was not precluded. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider's motion, and remitted for determination of the insurer's pending summary judgment branch asserting staged-accident noncoverage.
Appellate Term, First Department
Oct 26, 2021
2021 NY Slip Op 50997(U)
Insurer prevailed
The insurer's discovery responses were sufficient, and the claimant's counterclaim amendment was denied for unexplained delay and prejudice. The Appellate Term, First Department, affirmed the denial of the claimant's motions to strike the complaint or conditionally preclude evidence and to amend the answer. The insurer sought de novo adjudication after a master arbitration award exceeding the threshold under Insurance Law § 5106 (c). The record supported the finding that discovery responses were sufficient; law of the case did not apply to prior discretionary conditional discovery orders. The claimant offered no reasonable excuse for the years-long delay in seeking amendment. Discovery was complete, a notice of trial had been filed, and the claimant had previously limited recovery under the fee schedule.
Appellate Term, First Department
Oct 26, 2021
2021 NY Slip Op 50998(U)
Insurer prevailed
MVAIC established that no timely notice of intention to make a claim was filed and that the accident was not reported within 24 hours. Its submissions showed noncompliance with Insurance Law § 5208 (a) and the requirement in Insurance Law § 5208 (a) (2) (A) to report the accident to a police, peace, or judicial officer within 24 hours. Those failures left conditions precedent to seeking no-fault benefits unsatisfied, and the provider raised no triable issue. MVAIC's untimely denial did not preclude its lack-of-coverage defense. The Appellate Term, First Department, reversed the order, granted MVAIC summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Oct 22, 2021
2021 NY Slip Op 51028(U)
Provider prevailed
The insurer's FOIL evidence failed to establish that the provider lacked a license when it sold the durable medical products. At a nonjury trial, the parties stipulated that their prima facie burdens were satisfied and that only preserved and nonwaivable defenses remained. The insurer offered testimony and certified FOIL documents to support its defense that the provider lacked a Department of Consumer Affairs license. The Appellate Term, Second Department, found that the FOIL evidence concerned a differently named corporation, with no proof that it was the provider. Because no other evidence established the licensing defense, the court reversed the judgment dismissing the complaint and remitted for entry of judgment for the provider.
Appellate Term, Second Department
Oct 8, 2021
2021 NY Slip Op 50959(U)
Insurer prevailed
An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability on the policy. The Civil Court denied both sides' summary judgment motions and limited trial issues to IME nonappearance and the workers' compensation fee schedule defense. The insurer established that it properly scheduled the assignor's IMEs before receiving the claims and that the assignor failed to appear. The provider raised no triable issue and did not challenge the implicit findings in the insurer's favor under CPLR 3212 (g). Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint, without reaching the fee schedule issue.
Appellate Term, Second Department
Oct 8, 2021
2021 NY Slip Op 50960(U)
Insurer prevailed
The insurer's summary judgment motion asserting declaratory judgment preclusion or provider EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, relying on the reasons stated in Solution Bridge, Inc. v GEICO Ins. Co. The Civil Court had left EUO nonappearance as the only issue for trial.
Appellate Term, Second Department
Oct 1, 2021
2021 NY Slip Op 50955(U)
Provider prevailed
The insurer's appeal was dismissed because the challenged paper was either a nonappealable decision or an order not appealable as of right. The fee schedule defense was the sole issue designated for trial, but the parties submitted memoranda instead, without testimony. The Civil Court awarded the provider benefits in a decision and order, and no judgment was entered. The Appellate Term, Second Department, explained that, insofar as the paper was an order, it did not decide a motion made on notice and was not appealable as of right under CCA 1702 (a) (2) and CPLR 2211; leave to appeal was declined. Insofar as it was a decision, no appeal lay.
Trial court, First Department
Oct 20, 2021
2021 NY Slip Op 50991(U)
Insurer prevailed
A no-fault arbitration award against the insurer was vacated because its policy did not cover the assignor's rental vehicle. The Civil Court, New York County, granted the insurer's petition under CPLR 7511 (b) (1) (iii) and denied the provider's and MVAIC's cross-petitions. The policy covered only the assignor's owned vehicle. The arbitrator treated the dispute as one of payment priority and required the insurer first notified to process the claim, without evidence that its policy covered the rental vehicle. The unsupported coverage finding rendered the award arbitrary and capricious. Although the court agreed that MVAIC was not liable because the rental vehicle was insured, confirming that portion while vacating the award against the insurer would constitute an unauthorized modification under CPLR 7511 (c).
Trial court, Second Department
Oct 8, 2021
2021 NY Slip Op 50968(U)
Split result
CPLR 3404 does not authorize dismissal of a no-fault action in New York City Civil Court as abandoned. On remand after reversal of a laches dismissal, the Civil Court, Queens County, denied the insurer's remaining dismissal request but granted its request to fix interest accrual. CPLR 3404 also would not apply before a notice of trial was filed. The insurer's argument under 22 NYCRR 208.14 (c) was improperly raised in reply, and that provision did not authorize dismissal for neglect to prosecute. Under 11 NYCRR 65-3.9 (d), the provider's years of inactivity warranted limiting interest. The disposed marking did not prevent prosecution or require a restoration motion. If the provider prevailed, interest would accrue from the filing of a notice of trial.
