Appellate Division, Second Department
Apr 26, 2023
2023 NY Slip Op 02095
Insurer prevailed
The insurers established that two collisions were intentional and excluded from no-fault coverage, including coverage for innocent third parties. Evidence showed fraudulent policy procurement, insureds absent from the vehicles, interrelated participants, vehicles striking a UPS truck while exiting parking spaces, and treatment by the same providers. The opposing providers raised no triable issue. Their prematurity argument failed under CPLR 3212 (f) because they identified no essential evidence within the insurers' exclusive control. Knowledgeable witnesses supplied admissible affidavits and business-record foundations under CPLR 3212 (b) and CPLR 4518 (a). The Appellate Division, Second Department, affirmed the order and judgment, insofar as appealed from, granting the insurers summary judgment and declaring no obligation to pay the related claims; it did not reach the providers' remaining contention.
Appellate Division, First Department
Apr 13, 2023
2023 NY Slip Op 01949
Insurer prevailed
The 15-business-day period for requesting EUOs begins upon receipt of the prescribed NF-3 verification forms, rather than the NF-2 application. The insurer sought a default judgment declaring noncoverage based on the claimants' failure to appear for EUOs. Its admissible evidence established that each claimant failed to appear for properly and timely noticed EUOs, breaching a condition precedent to coverage. Documentary evidence showed that the scheduling letters were sent within 15 business days after receipt of the NF-3 forms, as required by 11 NYCRR 65-3.5 (b). The Appellate Division, First Department, reversed the denial, granted the default judgment motion, and declared that the insurer had no duty to pay the defaulting providers' claims.
Appellate Term, Second Department
Apr 14, 2023
2023 NY Slip Op 50442(U)
Insurer prevailed
The provider's claims were dismissed based on res judicata and sufficient proof of timely mailing for the EUO nonappearance defense. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint. The first, third, fourth and seventh causes of action concerned the same assignor, claims, loss and service dates as a prior default declaratory judgment and were barred by res judicata. For the second, fifth and sixth causes of action, the insurer's employee affidavits established a presumption of timely mailing of the EUO scheduling letters and denial forms, defeating the provider's challenge to dismissal.
Trial court, Second Department
Apr 21, 2023
2023 NY Slip Op 50497(U)
Provider prevailed
The insurer failed to establish entitlement to an injunction halting no-fault proceedings pending its noncoverage action. The Supreme Court, Nassau County, treated the request under CPLR 6301 because CPLR 2201 permits a stay only of proceedings pending before that court. The insurer's staged-collision evidence included unsubstantiated and hearsay assertions, and disputed compliance with EUO and denial procedures undermined its likelihood of success. The insurer also failed to establish imminent, nonspeculative harm uncompensable by money damages or favorable equities; an injunction would delay the opposing providers' claims. The court denied the motion and vacated the temporary restraining order, without determining ultimate coverage rights.
Trial court, Second Department
Apr 13, 2023
2023 NY Slip Op 50338(U)
Insurer prevailed
The insurer's attorney affidavits and recorded statements established timely EUO notice mailing and the assignor's nonappearance. The Civil Court, Kings County, granted the insurer's summary judgment motions under CPLR 3212 and dismissed the complaints in three matters consolidated for the motions. The attorney described personal involvement in the files and creation and supervision of the office mailing procedure; recorded statements documented the missed EUOs. The court rejected the provider's demand for envelopes, proof of first-class mailing, and logs of other scheduled EUOs. The provider supplied no assignor affidavit contradicting nonappearance and failed to raise a triable issue. Its cross-motions for summary judgment were denied, and additional written arguments were deemed moot.
