Appellate Term, Second Department
Jan 28, 2022
2022 NY Slip Op 50058(U)
Insurer prevailed
The assignor was ineligible for MVAIC benefits because the stepfather's automobile policy insured relatives residing in the same household. The Appellate Term, Second Department, reversed the order and granted MVAIC summary judgment dismissing the provider's complaint. The motion papers established that the assignor lived with the stepfather and was an insured under the policy, rather than a qualified person under Insurance Law § 5202 (b). The court rejected the provider's argument, accepted below, that being over 18 excluded the assignor from coverage. Neither the policy nor the mandatory personal injury protection endorsement in 11 NYCRR 65-1.1 limited coverage based on relatives' ages.
Appellate Term, Second Department
Jan 21, 2022
2022 NY Slip Op 50048(U)
Insurer prevailed
An unvacated default judgment in a declaratory judgment action is conclusive for res judicata purposes. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for, in effect, summary judgment dismissing the provider's no-fault complaint. After issue was joined in the benefits action, the insurer obtained a default order in a Supreme Court, New York County, declaratory judgment action against the provider and assignor. A judgment for the provider in the benefits action would destroy or impair rights established by that order. The declaratory order was a conclusive final determination despite entry on default, encompassing issues raised or that could have been raised in the prior action.
Appellate Term, Second Department
Jan 21, 2022
2022 NY Slip Op 50057(U)
Provider prevailed
An insurer invoking a Pennsylvania policy's 'as soon as practicable' notice clause must establish prejudice to deny for late notice. The parties agreed that Pennsylvania law governed the policy, which required notice within 30 days or as soon as practicable. Although the insurer received notice more than 30 days after the accident, a factual issue remained as to whether notice was given as soon as practicable, and the insurer failed to establish prejudice under Pennsylvania's notice-prejudice rule. The provider also failed to show the summary judgment motion untimely under CPLR 3212 (a), because the record did not establish filing of a notice of trial more than 120 days before the motion. The Appellate Term, Second Department, affirmed denial of the insurer's motion.
Appellate Term, Second Department
Jan 21, 2022
2022 NY Slip Op 50049(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's claims on res judicata grounds was granted on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal decided the same day, North Valley Med., P.C. v Permanent Gen. Assur. Corp., No. 2019-499 K C, following a declaratory default order against the provider and assignor.
Appellate Term, Second Department
Jan 21, 2022
2022 NY Slip Op 50056(U)
Insurer prevailed
The insurer's summary judgment motion was granted based on established mailing of IME scheduling letters to the assignor. Rejecting the provider's sole challenge to that motion, the decision cited St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Madison Prods. of USA, Inc. v 21st Century Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion.
Trial court, First Department
Jan 10, 2022
2022 NY Slip Op 50013(U)
Provider prevailed
The insurer failed to establish compliance with IME scheduling deadlines because it did not disclose when claims or verification forms arrived. The IME was scheduled 33 calendar days after the request, exceeding the 30-day period from receipt of verification forms required by 11 NYCRR 65-3.5 (d), if that provision applied. Under Hereford Ins. Co. v Lida's Med. Supply, Inc., those deadlines do not apply to verification requested before any benefits claims are received. The record therefore left open whether the request was timely. The Supreme Court, New York County, denied default judgment under CPLR 3215 and summary judgment under CPLR 3212, requiring a renewed default motion within 30 days of entry to avoid dismissal as to defaulting defendants.
Trial court, Second Department
Jan 5, 2022
2022 NY Slip Op 50068(U)
Insurer prevailed
The provider failed to raise factual issues on fee-schedule reductions and medical necessity because its expert affidavits were missing. The District Court, Suffolk County, granted the insurer's summary judgment motion under CPLR 3212 (b) and dismissed the complaint. The insurer submitted a certified professional coder's affidavit supporting fee-schedule reductions, along with IME and peer review reports supporting lack of medical necessity. Although the provider's opposition purported to attach rebuttal affidavits from its coding and medical experts, none were submitted. Counsel's analysis, without personal knowledge or supporting expert evidence, could not defeat the motion. The insurer's calculations and medical opinions therefore remained unrebutted.
