Appellate Term, Second Department
Nov 26, 2021
2021 NY Slip Op 51167(U)
Insurer prevailed
The provider's failure to meet local licensing requirements was established at trial, rendering it ineligible for no-fault reimbursement. The sole issue at the nonjury trial was whether the Brooklyn medical supply provider was eligible to receive payment under 11 NYCRR 65-3.16 (a) (12). The Appellate Term, Second Department, held that the insurer's proof established noncompliance with the applicable local licensing requirements by a preponderance of the credible evidence, citing Administrative Code of City of NY § 20-425 and 6 RCNY § 2-271. It affirmed the judgment dismissing the complaint and declined to consider the provider's remaining contentions because they were raised for the first time on appeal.
Appellate Term, Second Department
Nov 19, 2021
2021 NY Slip Op 51163(U)
Insurer prevailed
The insurer's motion to dismiss for failure to prosecute under CPLR 3216 was granted and affirmed on appeal. The provider served but did not file a notice of trial within the 90-day demand period and offered a calendar clerk's law-office-failure affidavit. The Appellate Term, Second Department, affirmed for the reasons stated in Silver Acupuncture, P.C. v GEICO Gen. Ins. Co., which involved a nearly identical affidavit from the same clerk.
Appellate Term, Second Department
Nov 19, 2021
2021 NY Slip Op 51161(U)
Insurer prevailed
The insurer was entitled to severance because the two assignors' claims arose from separate accidents and involved different defenses. The provider joined claims for supplies furnished to two assignors, and the insurer moved under CPLR 603 to sever them into separate actions. One claim was denied for lack of medical necessity; the other was denied for failure to cooperate with the insurer's investigation of the alleged accident. Although severance generally rests in judicial discretion, the different accidents and defenses presented different questions of fact and law. The Appellate Term, Second Department, reversed the order denying severance and granted the insurer's motion.
Appellate Term, Second Department
Nov 12, 2021
2021 NY Slip Op 51072(U)
Insurer prevailed
The insurer established the assignors' IME nonappearances, and the provider failed to rebut that showing. In the provider's action for assigned no-fault benefits, the Civil Court denied both sides' summary judgment motions but found, in effect under CPLR 3212 (g), that nonappearance was the only issue remaining for trial. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, found the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. It reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Nov 10, 2021
2021 NY Slip Op 51054(U)
Provider prevailed
MVAIC failed to eliminate factual issues over whether the assignor was the vehicle's de facto owner and ineligible for benefits. The Appellate Term, First Department, affirmed the denial of MVAIC's motion for summary judgment dismissing the provider's no-fault action. MVAIC bore the burden of proving its lack-of-coverage defense under Insurance Law § 5202 (b). Evidence indicated that another person purchased and registered the vehicle and paid for its insurance. The assignor's EUO testimony concerning the relationship with that person and the vehicle raised, rather than eliminated, factual issues about ownership. Those issues required resolution at trial.
Trial court, Second Department
Nov 30, 2021
2021 NY Slip Op 51125(U)
Provider prevailed
An insurer that repudiates liability for a claim cannot then require compliance with the policy's EUO provision. The Civil Court, Queens County, denied the insurer's summary judgment motion based on alleged material misrepresentations about residence and garaging and the assignor's EUO nonappearances. The insurer failed to authenticate its application and other records or establish a business-record foundation under CPLR 4518 (a). It also supplied no underwriting documentation showing that correct information would have prevented issuance of the policy, as required to establish materiality under Insurance Law § 3105 (b) (1). The insurer scheduled EUOs after denying the claim for misrepresentation. Independently, the first scheduling letter was sent more than 30 days after receipt of the claim and was untimely.
Trial court, First Department
Nov 19, 2021
2021 NY Slip Op 51099(U)
Provider prevailed
The insurer failed to establish its lack-of-coverage defense with admissible proof that it did not insure the assignor's vehicle. The Civil Court, Bronx County, denied the insurer's summary judgment motion and granted the provider's cross motion. The claims supervisor's assertion that the insurer covered none of the vehicles involved rested entirely on a police accident report for which no evidentiary foundation had been laid. Although the denials were timely mailed, they did not establish the defense's substance. The provider submitted no evidence but relied on the insurer's denial forms to establish its prima facie case. Under CPLR 3212 (b), the court considered the entire record, treated the unsupported defense as lacking merit, and found payment overdue.
Trial court, Second Department
Nov 1, 2021
2021 NY Slip Op 51035(U)
Insurer prevailed
MVAIC established that the assignor failed to satisfy the notice-of-claim and accident-reporting conditions for coverage. The Civil Court, Queens County, granted MVAIC's motion for summary judgment dismissing the provider's complaint and denied the provider's cross motion. Affidavits describing record searches, document storage and mailing procedures established that the required notice and proof of timely reporting had not been filed. The provider submitted no evidence of compliance with Insurance Law § 5208. The court rejected challenges to the mailing proof and admissibility of scanned records under CPLR 4539 (b). Although the provider established timely submission of claims that MVAIC failed to pay or deny within 30 days, the lack-of-coverage defense was not subject to preclusion.
