Appellate Division, Second Department
Nov 9, 2022
2022 NY Slip Op 06252
Insurer prevailed
The insurers established through admissible evidence that the collisions were intentionally caused or staged, defeating no-fault coverage. The insurers sought a declaration against providers claiming benefits from two collisions involving recently insured vehicles and taxicabs. The Appellate Division, Second Department, affirmed the judgment declaring no duty to cover the claims following summary judgment against the providers. An intentional, staged collision furthering an insurance fraud scheme is not a covered accident. The providers raised no triable issue concerning the collisions and failed to show that summary judgment was premature under CPLR 3212 (f).
Appellate Term, Second Department
Nov 25, 2022
2022 NY Slip Op 51245(U)
Provider prevailed
The prior declaratory judgment did not bar the provider's no-fault action arising from a different accident. The defendant sought summary judgment based on res judicata and collateral estoppel, relying on a judgment barring the provider's actions arising from an earlier accident because, among other things, of improper fee splitting. The Appellate Term, Second Department, affirmed the denial of the defendant's motion. The prior judgment could not be extended beyond its explicit scope to future actions. Neither preclusion doctrine applied because the present claims arose from a different accident, and a judgment for the provider would not destroy or impair the rights or interests established by the earlier declaratory judgment.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51233(U)
Insurer prevailed
A provider must exhaust its remedies against all potential insurance carriers before seeking assigned no-fault benefits from MVAIC. The provider appealed from a judgment dismissing its complaint after a nonjury trial. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the provider had not demonstrated exhaustion of those remedies. It affirmed the judgment dismissing the complaint, leaving MVAIC the prevailing party.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51240(U)
Insurer prevailed
The provider's claims were barred by res judicata because recovery would impair a no-coverage declaration obtained by the proper insurer. The provider sued one insurer, but another voluntarily answered as the proper insurer and later obtained summary judgment declaring no reimbursement obligation for the assignor's failure to comply with a condition precedent. The Appellate Term, Second Department, added the answering insurer to the caption and affirmed summary judgment dismissing the entire complaint and denial of the provider's cross motion. Sufficient evidence established that the answering insurer was the proper defendant. The declaration in the Supreme Court, New York County, precluded relitigation of claims arising from the same transaction. The appellate court reached no other issue.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51236(U)
Provider prevailed
MVAIC's appeal was dismissed because the paper awarding no-fault benefits was not appealable as of right and leave to appeal was denied. The Civil Court's paper listed facts agreed to at a pretrial conference, but the record contained neither a stipulation nor a conference transcript, and did not establish that a trial occurred. No judgment had been entered. The Appellate Term, Second Department, explained that, if treated as an order, the paper did not decide a motion made upon notice under CCA 1702 (a) (2) and CPLR 2211; if treated as a decision, no appeal lay from it. The dismissal left the provider's award undisturbed.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51232(U)
Insurer prevailed
The trial record supported findings that the provider had not fully supplied requested verification and that the insurer timely denied the claim. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, judgment dismissing the complaint after a nonjury trial limited to verification responses and whether verification remained outstanding before denial. Although appellate review of a nonjury determination is as broad as the trial court's authority, credibility findings receive substantial deference because the trial court observes the witnesses. The proof supported the finding of incomplete responses and timely denial on that ground under 11 NYCRR 65-3.5 (o). The appellate court found no basis to disturb the determination.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51234(U)
Insurer prevailed
The provider's renewal motion failed because its affidavits supplied no new facts and no reasonable justification for their earlier omission. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying leave to renew the provider's summary judgment motion and opposition to the insurer's cross motion. The Civil Court, Kings County, had previously denied the provider summary judgment and granted dismissal to the insurer. CPLR 2221 (e) (2) requires new facts that would change the prior determination, and CPLR 2221 (e) (3) requires reasonable justification for failing to present them earlier. The submitted affidavits met neither requirement; the provider should have presented all its evidence on the original motions.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51235(U)
Insurer prevailed
The insurer established that it had already paid another provider for the same medical equipment underlying the disputed claim. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion. The claims specialist's affidavit and relevant supporting documents sufficiently demonstrated the prior payment. That proof defeated the provider's sole contention concerning the insurer's motion and established the insurer's prima facie entitlement to dismissal. The provider failed to raise a triable issue in opposition.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51239(U)
Insurer prevailed
An insurer may deny later-submitted claims for prior provider EUO nonappearances without scheduling additional EUOs after submission. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The Civil Court, Kings County, had implicitly found under CPLR 3212 (g) that scheduling letters and denials were timely and properly mailed and that the provider failed to appear twice, but perceived a factual issue because the EUOs preceded the claims. Those established elements satisfied the insurer's prima facie burden. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the claims' later submission did not invalidate the defense or require new EUOs.
Appellate Term, Second Department
Nov 18, 2022
2022 NY Slip Op 51241(U)
Insurer prevailed
The insurer's summary judgment dismissing claims for failure to provide requested verification was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer's motion and denying the provider's cross motion for summary judgment for the reasons stated in Remedy Chiropractic, P.C. v Nationwide Ins., without providing independent reasoning.
Appellate Term, First Department
Nov 17, 2022
2022 NY Slip Op 51127(U)
Insurer prevailed
MVAIC established that the assignor was ineligible for benefits because the assignor held an automobile policy in the assignor's own name. Under Insurance Law § 5202 (b) and Insurance Law § 5221 (b) (2), the assignor was an insured rather than a qualified person entitled to no-fault benefits from MVAIC. The provider failed to raise a triable issue and did not address a certified Department of Motor Vehicles record showing coverage on the accident date. MVAIC's alleged failure to establish timely mailing of verification requests did not preclude its threshold coverage defense. The Appellate Term, First Department, reversed the order, granted MVAIC's summary judgment motion, and dismissed the complaint.
Trial court, Second Department
Nov 29, 2022
2022 NY Slip Op 51285(U)
Insurer prevailed
The insurer's unrebutted expert testimony established that the supplied medical devices were not medically necessary. After a bench trial, the Civil Court, Kings County, dismissed the provider's complaint for assigned no-fault benefits. The parties stipulated to timely billing and denial, the chiropractor's qualifications, the peer review report, and the reviewed records. The insurer's expert supplied a credible factual basis and medical rationale for rejecting the cervical collar, back support, cervical traction unit, and TENS unit. The records did not show the conditions warranting those devices; the TENS unit was prescribed during active treatment without a successful office trial. Once the insurer established its defense, the provider offered no witnesses or other evidence to rebut the showing.
