Appellate Term, Second Department
Dec 22, 2021
2021 NY Slip Op 51253(U)
Insurer prevailed
The insurer's proof supported timely mailing presumptions for EUO notices and denials, and its staff counsel's affirmation was admissible. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims for failure to appear at duly scheduled EUOs. The insurer's submissions supported a presumption that the scheduling letters and denial forms had been timely mailed. The court also rejected the provider's contention that CPLR 2106 (a) barred the attorney's affirmation because the attorney was employed by a law firm as staff counsel to the insurer.
Appellate Term, Second Department
Dec 22, 2021
2021 NY Slip Op 51255(U)
Insurer prevailed
A summary judgment motion served by mail is made upon mailing for purposes of CPLR 3212 (a)'s 120-day deadline. The provider filed its notice of trial on June 14, 2018, and the insurer served its dismissal motion on October 12, 2018. Under CPLR 2211 and 2103 (b) (2), that service was timely; the notice of trial was the Civil Court equivalent of a note of issue. The Appellate Term, Second Department, reversed the order denying the motion as untimely and remitted to the Civil Court for determination on the merits.
Appellate Term, Second Department
Dec 22, 2021
2021 NY Slip Op 51257(U)
Insurer prevailed
The insurer proved valid retroactive rescission of the Florida policy by sending notice and timely returning all premiums. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned-benefits action. Florida law governed the coverage issue despite the provider's argument that New York's prohibition on retroactive rescission controlled. Under Fla Stat Ann § 627.728 (5), the insurer showed notice to the policyholder and return of all premiums within a reasonable time after discovering grounds for rescission. It was not required to demonstrate the basis for rescission on this motion. The provider raised no triable issue.
Appellate Term, Second Department
Dec 22, 2021
2021 NY Slip Op 51258(U)
Split result
The provider obtained partial judgment for untimely denials, but disputed EUO convenience barred judgment on later claims. The Appellate Term, Second Department, modified the order, insofar as appealed from. For claims received May 11 through June 22, 2018, the insurer proved timely notices, nonappearance, and timely denials, but reasonable convenience under 11 NYCRR 65-3.5 (e) remained disputed. Neither side received summary judgment on those claims; the provider's liability award and dismissal of the EUO defense were vacated. For claims received March 22 through April 27, 2018, the insurer's denials were untimely, and the provider's partial summary judgment on liability remained intact.
Appellate Term, Second Department
Dec 17, 2021
2021 NY Slip Op 51246(U)
Insurer prevailed
The insurer's summary judgment motion based on its nonissuance of a policy covering the accident vehicle was granted on appeal. The Appellate Term, Second Department, reversed the amended order, insofar as appealed from, and dismissed the provider's complaint for the reasons stated in Island Life Chiropractic Pain Care, PLLC v Omni Indem. Co., addressing the insurer's contention that the provider sued the wrong party.
Appellate Term, Second Department
Dec 17, 2021
2021 NY Slip Op 21355
The insurer's detailed claims-clerk affidavit rebutted the process server's affidavit and required a traverse hearing on service. Lack of personal jurisdiction was a threshold issue because defective service would render subsequent proceedings void. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted for a new determination, after the hearing, of the insurer's requests to vacate the order granting entry of a default judgment and dismiss the complaint. The majority found no basis for dismissal under CPLR 3215 (c): the provider's default-motion papers were absent from the record, and the insurer had not raised abandonment below. A partial concurrence and dissent would have vacated the order and dismissed for the seven-year delay in seeking default judgment.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 21340
Split result
An untimely EUO no-show denial of one claim does not waive the defense against later claims that are individually timely denied. Under 11 NYCRR 65-3.8 (a) (1), the toll for the earlier claim ended at the assignor's second EUO nonappearance. The insurer failed to establish denial within 30 days thereafter, requiring denial of summary judgment on that claim. Two subsequently submitted claims were timely denied within 30 days of receipt based on the same nonappearance. Each claim was treated individually; the defense did not expire 30 days after the second nonappearance. The Appellate Term, Second Department, modified the order accordingly, preserving dismissal of the later claims and denial of the provider's cross motion as untimely under the adjournment stipulation.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51206(U)
Insurer prevailed
The provider's action was untimely under the three-year limitations period for claims involving a self-insured vehicle. The defendant established that it did not insure the vehicle and acted only as a third-party claims handler for its self-insured owner. The provider's affidavit showed mailing of the claim on December 22, 2010, but suit was not commenced until November 22, 2016. Applying CPLR 214 (2) and Contact Chiropractic, P.C. v New York City Tr. Auth., the Appellate Term, Second Department, reversed denial of the defendant's cross motion and granted summary judgment dismissing the complaint. Appeals concerning declaratory-judgment preclusion and reargument were dismissed as academic; no other issue was reached.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51200(U)
The provider's proof of mailing and MVAIC's proof of nonreceipt required a hearing to determine the ground for dismissal. The Appellate Term, Second Department, modified the order, insofar as appealed from, vacated implicit CPLR 3212 (g) findings favoring the provider, and remitted for a CPLR 2218 hearing and redetermination of MVAIC's summary judgment motion. Finding claim submission incontrovertible was inconsistent with leaving receipt for trial. The provider's affidavit raised a presumption of timely mailing and receipt, while MVAIC established prima facie nonreceipt. If the forms were mailed and received as alleged, dismissal would be with prejudice because the statute of limitations expired. If MVAIC established nonreceipt, dismissal would be without prejudice as premature. The hearing would determine which ground applied.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51205(U)
Insurer prevailed
The provider's action against the self-insured vehicle owner's claims handler was barred by the three-year statute of limitations. The Appellate Term, Second Department, reversed denial of the defendant's cross motion and granted summary judgment dismissing the complaint under CPLR 214 (2), following Contact Chiropractic, P.C. v New York City Tr. Auth. The defendant proved it was a third-party claims handler rather than the vehicle's insurer. The provider's owner confirmed that the claim was mailed on December 22, 2010, while suit began on November 22, 2016, and the provider raised no timeliness issue. The appeals addressing declaratory-judgment preclusion and reargument became academic; the court reached no other issue.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51208(U)
Insurer prevailed
The assignor's conclusory denial of receiving IME notices failed to rebut the presumption of receipt arising from proper mailing. The provider sought renewal after denial of its summary judgment motion and dismissal on the insurer's cross motion based on IME nonappearance. Its affidavit merely denied receipt and supplied no evidence that the scheduling letters were improperly mailed. The Appellate Term, Second Department, affirmed the order adhering, upon renewal, to the prior determination. Following CIT Bank N.A. v Schiffman and Nassau Ins. Co. v Murray, the bare denial raised no triable issue.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51207(U)
Split result
MVAIC obtained dismissal of two assignors' claims for failure to exhaust remedies against a known vehicle owner and failure to file timely notice. The Appellate Term, Second Department, modified the order to grant those branches of MVAIC's summary judgment motion. For one assignor, the provider did not demonstrate exhaustion of remedies against the identified owner of the vehicle in which the assignor was a passenger. For another, MVAIC established nonreceipt of the notice affidavit required by Insurance Law § 5208 (a) (1), (3). Denial of dismissal remained affirmed for the third assignor: verification was first requested more than six months after receipt of the last claim, precluding defenses subject to preclusion. Covered-person determination under Insurance Law § 5221 (b) (2) did not postpone the 30-day deadline.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 21338
Insurer prevailed
The provider failed to establish personal jurisdiction over the Pennsylvania insurer with counsel's unsupported affirmation. The insurer's affidavits established its lack of New York business operations or property, while counsel lacked personal knowledge supporting jurisdiction under CCA 404 (a). Authority addressing compelled arbitration did not establish judicial jurisdiction. The provider's CPLR 3211 (d) discovery argument was first raised on appeal and, alternatively, lacked tangible evidence of a jurisdictional predicate. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing under CPLR 3211 (a) (8). It also directed submissions on possible sanctions under 22 NYCRR 130-1.1 (c), because counsel's repeated arguments appeared frivolous and failed to address precedent rejecting them.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51201(U)
Insurer prevailed
The appealing insurer's jurisdictional dismissal motion was granted on appeal. Service was alleged by mail under CPLR 312-a, but the provider's papers contained no acknowledgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, relying on the reasons stated in the earlier Longevity Med. Supply, Inc. v American Ind. Ins. Co. decision.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51202(U)
The appealing insurer lacked aggrievement from denial of a codefendant insurer's jurisdictional motion and the provider's cross motion. The Appellate Term, Second Department, dismissed the appeal under CPLR 5511. The codefendant sought dismissal only of the claims against it for lack of personal jurisdiction. The Civil Court denied that motion and the provider's cross motion, finding a factual issue concerning the codefendant's business activities in New York. The appellant was aggrieved by neither part of the order, so the jurisdictional merits were not reached.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51203(U)
The appealing insurer was not aggrieved by an order denying another insurer's jurisdictional dismissal motion and the provider's cross motion. The Appellate Term, Second Department, dismissed the appeal under CPLR 5511. The motion sought dismissal only as to the other insurer for lack of personal jurisdiction, and the Civil Court found a factual issue over whether that insurer did business in New York. Neither that denial nor denial of the provider's cross motion aggrieved the appellant. The appellate court did not decide the jurisdictional issue.
Appellate Term, Second Department
Dec 10, 2021
2021 NY Slip Op 51204(U)
Insurer prevailed
The insurer's underwriting affidavit established that it had issued no policy covering the accident, and the provider raised no triable issue. The Appellate Term, Second Department, reversed denial of the insurer's cross motion and granted summary judgment dismissing the assigned-benefits complaint. The affidavit from the underwriting department's new business supervisor was sufficient to establish the absence of coverage for the loss. Although the Civil Court had not addressed the provider's own summary judgment motion, dismissal made remittal for a ruling on that motion unnecessary.
Appellate Term, Second Department
Dec 3, 2021
2021 NY Slip Op 51172(U)
Provider prevailed
MVAIC's 30-day period to deny a claim or request verification begins on receipt, regardless of whether it has determined covered-person status. The Appellate Term, Second Department, affirmed the denial of MVAIC's summary judgment motion and the grant of the provider's cross motion. MVAIC sought dismissal on the ground that available coverage had been exhausted. It failed to demonstrate that its verification requests were timely or that coverage limits had been exhausted in accordance with 11 NYCRR 65-3.15 at that point. The court applied the receipt-based deadline despite the coverage determination under Insurance Law § 5221 (b) (2). Because MVAIC did not challenge the provider's prima facie showing, the court did not pass on that determination.
Appellate Term, Second Department
Dec 3, 2021
2021 NY Slip Op 51170(U)
Provider prevailed
The insurer failed to establish that the assignor was not a passenger in its insured's vehicle when the accident occurred. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment on the ground that the claimed injuries did not arise from an insured incident. Its moving papers included the assignor's sworn benefits application stating that the assignor was a passenger in the insured vehicle. Although the insurer's attorney stated that an EUO had occurred, the papers did not describe its contents. The Appellate Term, Second Department, affirmed denial of the insurer's motion because it failed to make a prima facie showing, regardless of the sufficiency of the provider's opposition.
Appellate Term, Second Department
Dec 3, 2021
2021 NY Slip Op 51171(U)
Split result
The insurer's EUO nonappearance defense presented factual issues about the location's convenience and an agreed rescheduling. In this action for assigned no-fault benefits, the insurer obtained summary judgment based on the assignor's failure to appear for EUOs. The Appellate Term, Second Department, modified the order to deny that motion because factual issues remained as to whether the EUO location was reasonably convenient under 11 NYCRR 65-3.5 (e) and whether the parties had mutually agreed to reschedule an EUO. The court affirmed the denial of the provider's requests for a finding that its prima facie case was established and for sanctions against the insurer.
Trial court, Second Department
Dec 21, 2021
2021 NY Slip Op 51221(U)
Provider prevailed
The insurer failed to establish the claim's accrual date and could not obtain dismissal on limitations grounds. The Civil Court, Queens County, denied the unopposed motion under CPLR 3211 (a) (5). The six-year period under CPLR 213 (2) runs from accrual, which occurs 30 days after the insurer receives the bills. Neither the complaint nor the insurer's proof established receipt. The alternative calculation adding the 45-day submission period under 11 NYCRR 65-1.1 (d) to the 30-day payment period also was unavailable: the complaint did not allege timely submission and untimely denial. Without an ascertainable accrual date, the insurer could not establish that the action was commenced after limitations expired.
Trial court, Second Department
Dec 6, 2021
2021 NY Slip Op 51149(U)
Provider prevailed
The insurer's summary judgment motion was denied as untimely because pandemic-related office closure did not establish good cause. The Civil Court, Queens County, denied an extension and the motion under CPLR 3212 (a), without reaching medical necessity or fee-schedule defenses. The motion was served after the 120-day deadline following the notice of trial. Under Brill v City of New York, good cause requires a satisfactory explanation for delay, regardless of merit or lack of prejudice. The restrictions in 9 NYCRR 8.202.6 and 8.202.8 permitted remote work, and electronic motion filing had resumed before the notice of trial. Counsel did not claim an inability to work remotely or file electronically.
Trial court, Second Department
Dec 2, 2021
2021 NY Slip Op 51138(U)
Split result
The insurer established untimely submission of five claims but failed to prove its fee-schedule defense to the remaining claim. The Civil Court, Queens County, granted summary judgment dismissing claims for services from July 9 through July 13, 2019, denied dismissal of the July 30, 2019 claim and denied the provider's cross motion. Under 11 NYCRR 65-1.1 (d), the five claims missed the 45-day submission deadline; misplaced insurance information and unspecified contact difficulties did not supply clear, reasonable justification. The denials complied with 11 NYCRR 65-3.3 (e). For the remaining claim, the insurer supplied no expert interpretation of the fee schedule. The provider likewise failed to establish its entitlement to judgment on that claim with argument or expert evidence supporting fee-schedule compliance.
