Appellate Division, First Department
May 31, 2022
2022 NY Slip Op 03487
Insurer prevailed
The insurer established grounds for a default declaration of noncoverage based on an intentional or staged collision and EUO nonappearances. The Appellate Division, First Department, reversed the denial of the insurer's default-judgment motion and declared noncoverage against all defaulting defendants. Under CPLR 3215 (f), a claim representative's affidavit, the other driver's affidavit and dash-cam footage supplied a sufficient factual basis for the insurer's belief that the collision was not covered. The defaulting defendants were deemed to admit the complaint's factual allegations. The insurer also established that three assignors and the vehicle owner failed to attend properly noticed EUOs, breaching a coverage condition precedent and voiding the policy ab initio. It additionally obtained a declaration of no duty to defend the three defendants identified in that cause of action.
Appellate Division, Second Department
May 25, 2022
2022 NY Slip Op 03397
Insurer prevailed
The injured claimant's new grounds for equitably estopping the insurer from denying coverage were unpreserved for appellate review. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing an action seeking a declaration of coverage. The insurer submitted evidence that coverage on the livery cab had been transferred to a replacement vehicle before the accident; benefits initially paid were identified as erroneous. On appeal, the claimant asserted the insurer's complicity in the vehicle owner's alleged insurance fraud and prejudice because MVAIC's statutory maximum would not satisfy the personal-injury default judgment. Both arguments were raised for the first time on appeal and were not properly before the court.
Appellate Division, First Department
May 10, 2022
2022 NY Slip Op 03068
Provider prevailed
The insurer's EUO nonappearance motion was premature because it withheld the specific objective justification for requesting the EUO. The Appellate Division, First Department, affirmed denial of summary judgment against the providers under CPLR 3212 (f). The justification was essential to opposing the motion, lay exclusively within the insurer's control, and remained undisclosed despite discovery demands. Without it, the insurer could not establish compliance with 11 NYCRR 65-3.5 (e). The providers did not waive their objection by failing to challenge the notices when received: the notices gave no justification, and the regulation set no objection deadline.
Appellate Term, Second Department
May 13, 2022
2022 NY Slip Op 22171
Provider prevailed
No-fault interest on claims governed by former 11 NYCRR 65.15 (h) is compounded rather than calculated under CPLR 5004. After an unpaid settlement, the dissolved provider entered judgment and sought interest recalculation. Insurance Law § 5106 (a) and the former regulation superseded the general interest statute. Business Corporation Law §§ 1005 and 1006 permitted winding up without substitution under CPLR 1017 and 1021; the insurer failed to prove winding up had ended. Lack of notice before judgment was an improper unasserted vacatur ground. The court left open whether the statutory or agreed 90-day payment period applied. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted compound-interest recalculation, and denied the insurer's cross motion to vacate judgment and dismiss.
Appellate Term, Second Department
May 13, 2022
2022 NY Slip Op 50448(U)
Insurer prevailed
The insurer's attorney affidavits and certified EUO transcripts established the provider's failure to appear. The provider's sole contention in its appellate submissions concerning the insurer's cross motion was that nonappearance had not been proved. Following Pavlova v Nationwide Ins. and TAM Med. Supply Corp. v 21st Century Ins. Co., the Appellate Term, Second Department, found the submissions sufficient. It declined to consider the provider's separate challenge to the timeliness of the denials because that argument was first raised at appellate oral argument. The court affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
May 6, 2022
2022 NY Slip Op 50366(U)
Split result
The insurer failed to prove timely denials after two missed EUOs, while the provider also failed to establish entitlement to summary judgment. Following Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., the Appellate Term, Second Department, held that the insurer had not shown it was free from preclusion of its EUO defense, so denial of its dismissal motion was proper. The provider's proof established neither that the claims were untimely denied nor that timely denials were conclusory, vague, or legally meritless. The court modified the order to deny the provider's cross motion and otherwise affirmed, leaving both sides without summary judgment.
