Appellate Division, First Department
Feb 9, 2023
2023 NY Slip Op 00731
Insurer prevailed
The insurers' consolidation motion was granted because eight payment actions and their declaratory action shared an EUO coverage issue. The insurers sought a declaration that the injured claimant's failure to attend EUOs relieved them of no-fault liability. Two provider defendants then brought eight Civil Court actions for treatment of the same alleged injuries. Whether the claimant failed to submit to EUOs and whether that failure permitted denial of coverage would affect every action, creating a risk of inconsistent verdicts and multiple trials. The providers asserted no prejudice. The Appellate Division, First Department, reversed the order and granted consolidation under CPLR 602 (b).
Appellate Term, First Department
Feb 27, 2023
2023 NY Slip Op 50139(U)
Provider prevailed
MVAIC's submissions raised triable issues about exhaustion of coverage limits and compliance with priority-of-payment regulations. MVAIC sought summary judgment dismissing the provider's action for assigned first-party no-fault benefits. Its own evidence left unresolved whether payments to other providers and payments to the assignor for lost wages exhausted the available coverage, and whether those payments complied with 11 NYCRR 65-3.15. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying MVAIC's motion, leaving the provider's action pending.
Appellate Term, Second Department
Feb 24, 2023
2023 NY Slip Op 50275(U)
Insurer prevailed
The insurer's summary judgment dismissal of four claims on declaratory judgment preclusion grounds was affirmed. The Appellate Term, Second Department, upheld dismissal of causes of action (1), (2), (4) and (6) and denial of the provider's cross motion on those claims. It relied on the reasons stated in the companion appeal decided the same day, No. 2021-659 K C.
Appellate Term, Second Department
Feb 24, 2023
2023 NY Slip Op 50276(U)
Insurer prevailed
The provider's first, second, third, fourth and sixth causes of action were barred by a prior default declaratory judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing those claims and denying the corresponding branches of the provider's cross motion. The insurer established identical assignor, claims, loss and service dates in the declaratory judgment action, which declared no right to payment based on the assignor's EUO nonappearance. The provider's challenge to the attached claims chart's legibility lacked merit. The unvacated default judgment was conclusive for res judicata purposes. The provider's summary judgment award on the fifth cause of action was outside the appeal.
Appellate Term, Second Department
Feb 24, 2023
2023 NY Slip Op 50277(U)
Provider prevailed
The provider's statutory no-fault interest award was recalculated at a compound rate under the former regulations. The Appellate Term, Second Department, reversed the order denying the recalculation motion as moot and granted the motion. The action concerned supplies furnished after a 1998 accident and an unpaid settlement; the resulting judgment included interest calculated at a simple rate. A prior appellate reversal reinstated that judgment, removing the basis for mootness. Addressing the merits for judicial economy, the court found that former 11 NYCRR 65.15 (h) (1) governed the claim and required compound interest. It rejected the insurer's argument that the provider's delay in entering judgment after settlement warranted denial.
Appellate Term, Second Department
Feb 24, 2023
2023 NY Slip Op 50280(U)
Provider prevailed
The insurer's default judgment vacatur required a hearing to resolve disputed settlement payment terms and compliance. The Appellate Term, Second Department, reversed the order granting vacatur, reinstated the provider's default judgment and remitted for a new determination after a hearing. The provider submitted a signed settlement stipulation requiring payment within 21 days; the insurer submitted a signed version with a handwritten 45-day payment term. The provider accepted three checks dated 45 days after the stipulation but alleged untimely payment. Because the parties disputed the governing terms and whether the insurer complied, oral argument without an evidentiary hearing did not support granting vacatur.
Appellate Term, Second Department
Feb 24, 2023
2023 NY Slip Op 50281(U)
Insurer prevailed
The provider failed to raise a triable issue that it supplied requested verification or reasonably justified noncompliance. The Appellate Term, Second Department, affirmed the order granting the insurer's summary judgment motion dismissing the complaint and denying the provider's cross motion. The insurer established timely mailing of initial and follow-up verification requests and nonreceipt of all requested material. The provider's owner stated only that the requested verification had been mailed to the extent the response was proper and within the owner's possession. That qualified assertion did not demonstrate compliance or a reasonable justification for failing to comply under 11 NYCRR 65-3.8 (b) (3).
Appellate Term, First Department
Feb 16, 2023
2023 NY Slip Op 50105(U)
Insurer prevailed
MVAIC established that the assignor was an insured under an automobile policy and therefore was not a qualified person entitled to its benefits. A certified Department of Motor Vehicles document showed that the assignor held an automobile insurance policy in the assignor's own name. Under Insurance Law § 5202 (b) and Insurance Law § 5221 (b) (2), that coverage defeated eligibility for no-fault benefits from MVAIC. The provider's counsel's opposing affirmation raised no triable issue and did not address the certified record. The Appellate Term, First Department, reversed the order, granted MVAIC's motion for summary judgment, and dismissed the complaint.
Trial court, Second Department
Feb 9, 2023
2023 NY Slip Op 23039
Provider prevailed
A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review. The insurer sought CPLR article 75 vacatur of a master arbitration award affirming payment for medical supplies. Under 11 NYCRR 65-4.10 (a) (4), an error of law concerns substantive issues, not evidentiary evaluation in fact-finding. The arbitrator therefore could find medical necessity without applying Pan Chiropractic, P.C. v Mercury Ins. Co. The master arbitrator properly reviewed the findings for rationality rather than reweighing evidence. The insurer abandoned its challenge to three bills allowed over its verification defense. The Supreme Court, Kings County, denied the petition and confirmed the award in full, finding no ground for vacatur under CPLR 7511.
