Appellate Division, First Department
Mar 21, 2023
2023 NY Slip Op 01474
Provider prevailed
An insurer's EUO nonappearance summary judgment motion is premature without disclosure of its objective justification for requesting the EUO. The insurer obtained a declaration that it owed no benefits and a permanent stay of further actions involving the injured claimant. Although the EUO request and denial were timely, 11 NYCRR 65-3.5 (e) requires a specific objective justification. That information was exclusively within the insurer's control and essential to the providers' opposition under CPLR 3212. The waiver argument failed. The Appellate Division, First Department, reversed the order, denied summary judgment, and vacated the declaration and stay.
Appellate Term, Second Department
Mar 24, 2023
2023 NY Slip Op 50295(U)
Insurer prevailed
The provider's claims were barred by res judicata because a prior default declaratory judgment adjudicated the same bills. The Appellate Term, Second Department, affirmed the order granting the insurer's summary judgment motion and denying the provider's cross motion. The insurer established identical assignor, loss and service dates in both actions. Its claims specialist explained that differences in certain pleaded amounts resulted from mathematical errors in the provider's claim forms and that the charges were actually the same. An unvacated default judgment is conclusive for res judicata purposes, and a recovery here would impair the rights established by the declaration that the provider had no right to payment.
Appellate Term, Second Department
Mar 24, 2023
2023 NY Slip Op 50297(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's EUO nonappearances was granted, and that ruling was affirmed. The Appellate Term, Second Department, rejected the provider's sole contention, finding that the insurer made a prima facie showing of nonappearance under 11 NYCRR 65-3.5. The insurer also established nonappearance at a second scheduled EUO.
Appellate Term, Second Department
Mar 24, 2023
2023 NY Slip Op 50299(U)
Provider prevailed
The insurer failed to establish timely denials because scheduling another EUO did not extend the deadline after the second nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment dismissing the disputed service claims. Although the provider requested rescheduling of the second EUO, the insurer proceeded on that date and recorded the nonappearance; there was no mutual rescheduling. The denials issued more than 30 days afterward. Accommodating a later EUO request under the nonadversarial principle of 11 NYCRR 65-3.2 (b) did not make them timely. The insurer therefore failed to establish that it was not precluded from asserting the EUO nonappearance defense, despite established mailing and nonappearance.
Appellate Term, Second Department
Mar 3, 2023
2023 NY Slip Op 50287(U)
Insurer prevailed
The provider's summary judgment award failed because qualified-person status was disputed and three assignors' claims had been severed. After severance under CPLR 603, only the first-captioned assignor's claim remained before the Civil Court, which should not have decided the other three claims. For the remaining claim, the papers raised a factual issue whether the assignor was a qualified person under Insurance Law § 5202 (b). Insurance Law § 5221 (b) (2) requires qualified-person status and compliance with applicable Insurance Law article 52 requirements for covered-person rights. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied summary judgment on the remaining claim, and vacated the awards on the three severed claims, sustaining MVAIC's appeal.
Appellate Term, Second Department
Mar 3, 2023
2023 NY Slip Op 50284(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's assigned no-fault claims was affirmed, and the provider's cross motion remained denied. The Appellate Term, Second Department, relied on the reasons stated in MSB Physical Therapy, P.C. v Nationwide Ins., without supplying independent reasoning or identifying the underlying defense.
Trial court, First Department
Mar 22, 2023
2023 NY Slip Op 50219(U)
Insurer prevailed
The provider's claim was barred by collateral estoppel because a prior declaratory judgment resolved coverage for the same accident. The Civil Court, Bronx County, granted the insurer's unopposed summary judgment motion under CPLR 3212 and dismissed the complaint with prejudice. In the prior action, the provider and assignor defaulted, and the Supreme Court, Kings County, declared that the insurer owed no reimbursement because the losses did not result from an accident contemplated by the policy. The Civil Court found that the identical payment issue had been decided against the provider, that both parties had a full and fair opportunity to litigate it, and that no triable issue was raised.
Trial court, Second Department
Mar 20, 2023
2023 NY Slip Op 50208(U)
Provider prevailed
The insurer's police report did not require referral of its course-of-employment defense to the Workers' Compensation Board. The Supreme Court, Kings County, dismissed the insurer's CPLR article 75 petition and granted the provider's cross-petition to confirm the master arbitration award. The report showed TC plates and no passengers; no livery policy was submitted, and the claim forms indicated no employment-related injury. Referral required evidence of potential merit, not speculation. The arbitrator applied that standard correctly, and the master arbitrator's review was rational under 11 NYCRR 65-4.10 (a) (4). Under 11 NYCRR 65-3.9 (c), interest began when arbitration was requested, more than 30 days after denial. The court awarded a reduced judicial attorney fee under 11 NYCRR 65-4.10 (j) (4), applying the policy-issue hourly rate in 11 NYCRR 65-4.6 (c).
Trial court, Second Department
Mar 20, 2023
2023 NY Slip Op 50218(U)
Provider prevailed
The insurer's summary judgment motion was premature because its late answer had been rejected and issue had not been joined. The Civil Court, Richmond County, denied without prejudice the insurer's motion based on the assignor's failure to attend IMEs and EUOs. Under Civil Court Act § 402 (b), service outside New York City required an answer within 30 days after proof of service was filed. The insurer answered after that period, and the provider rejected the answer. The insurer neither moved to compel acceptance nor supplied a reasonable excuse under CPLR 3012 (d). The court declined to compel acceptance sua sponte and could not decide summary judgment under CPLR 3212 before joinder of issue.
Trial court, Second Department
Mar 14, 2023
2023 NY Slip Op 50513(U)
Provider prevailed
The insurer failed to establish grounds to vacate an award rejecting its causation and medical necessity defenses. The provider obtained an award for durable medical equipment, which the master arbitrator affirmed. The hearing arbitrator found the insurer's biomechanical expert's opinion too vague to establish that the injuries and treatment were unrelated to the accident, and found insufficient proof of lack of medical necessity. Judicial review under CPLR article 75 required irrationality, rather than merely an error of substantive law. The Supreme Court, Kings County, applied CPLR 409 (b), found the awards supported by reasoned analysis, denied the insurer's unopposed petition, and dismissed it.
Trial court, First Department
Mar 8, 2023
2023 NY Slip Op 50207(U)
Split result
The insurer waived discovery objections other than privilege or palpable impropriety by responding after the 20-day deadline. In the insurer's action for de novo adjudication under Insurance Law § 5106 (c), the provider sought the claim file, SIU materials, and records of other proceedings involving the accident. The Civil Court, New York County, granted the provider's motion only to require production of the entire claim file within 60 days. Under CPLR 3122, the insurer asserted no specific privilege and had not identified which produced documents comprised the file. SIU production was denied because sworn proof established that no file existed. Applying CPLR 3101 (a), the court rejected the demand for other proceedings as facially overbroad and disproportionately burdensome.
Trial court, Third Department
Mar 7, 2023
2023 NY Slip Op 50183(U)
Split result
An injured claimant sufficiently pleaded bad faith and consequential damages from allegedly predetermined IMEs used to deny benefits. The Supreme Court, Saratoga County, partly granted the insurer's CPLR 3211 (a) (7) motion: no-fault and SUM bad-faith claims and the General Business Law § 349 claim survived; fraud and all declaratory claims were dismissed. Fraud duplicated contract claims; insufficient allegations warranted dismissal against the IME arranger and physician. Declaratory relief was unnecessary given other remedies, unauthorized under Public Health Law § 4502, or hypothetical under CPLR 3001. Punitive-damages dismissal was denied without prejudice under CPLR 3211 (d) pending discovery. The claimant's constitutional summary judgment motion was denied as moot, and scandalous and prejudicial allegations were stricken under CPLR 3024 (b).
