Appellate Division, First Department
Jun 29, 2023
2023 NY Slip Op 03562
Insurer prevailed
The insurer established viable default claims for noncoverage based on an intentional or staged collision and a claimant's EUO nonappearance. The claim representative's affidavit, additional evidence, and two claimants' EUO testimony supplied a factual basis for the insurer's belief that the collision was not covered, satisfying CPLR 3215 (f). The defaulting defendants were deemed to admit the complaint's factual allegations. The insurer also established that it owed no payment obligation for another claimant's claims because that claimant failed to appear for an EUO. The Appellate Division, First Department, reversed the order, insofar as appealed from, granted default judgment on the three appealed causes of action, and declared noncoverage. It dismissed the reargument appeal as academic.
Appellate Division, Second Department
Jun 28, 2023
2023 NY Slip Op 03501
Insurer prevailed
The injured claimant's counsel was disqualified based on prior representation of the insurer in substantially related no-fault matters. The claimant sought no-fault lost-wage benefits, and counsel's principal had previously represented the insurer in hundreds of no-fault actions. Under Rules of Professional Conduct rule 1.9 (22 NYCRR 1200.0) and Delaney v Roman, the insurer established a prior attorney-client relationship, substantially related issues in the former and current representations, and materially adverse client interests. Doubts about a conflict are resolved in favor of disqualification. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the insurer's motion to disqualify counsel.
Appellate Division, Second Department
Jun 28, 2023
2023 NY Slip Op 03500
Insurer prevailed
The injured claimant's motion to compel discovery was denied without prejudice because it omitted the demands and outstanding-discovery details. In an action seeking no-fault lost-wage benefits, the claimant moved to compel responses after the insurer had responded to discovery demands. The motion papers supplied neither copies of the requests nor a list of the discovery still outstanding. Although CPLR 3101 (a) requires disclosure of material and necessary matter, discovery supervision and reasonable disclosure conditions rest within the motion court's broad discretion. The Appellate Division, Second Department, affirmed the order denying that branch of the claimant's motion without prejudice to renew.
Appellate Division, Third Department
Jun 15, 2023
2023 NY Slip Op 03274
Split result
The injured claimant's summary judgment motion was premature because it was made before issue was joined. After settling with two liability insurers, the claimant sought a declaration requiring further additional personal injury protection benefits and barring a lien on benefits already paid. The trial court treated an order to show cause filed two days after commencement as a summary judgment motion, denied relief on the merits, and dismissed the complaint. The insurer's answer before the return date did not cure prematurity. The Appellate Division, Third Department, modified the order to reinstate the complaint and otherwise affirmed, remitting for further proceedings and leaving subrogation, allocation of the settlement to pain and suffering, and whether the claimant had been made whole unresolved.
Appellate Division, First Department
Jun 13, 2023
2023 NY Slip Op 03191
Insurer prevailed
An injured claimant's failure to attend requested IMEs breaches a condition precedent and vitiates no-fault coverage. The insurer petitioned to vacate a master arbitration award affirming an award for the provider. It submitted notices for three scheduled IMEs, an affidavit establishing mailing, and affidavits from the medical professional establishing the claimant's nonappearances. Following Hereford Ins. Co. v Lida's Med. Supply, Inc., the Appellate Division, First Department, affirmed the order granting vacatur and denying the provider's attorney-fee request. Compulsory no-fault arbitration awards require evidentiary support or a basis in reason. Because the claim was invalid as a matter of law, the provider was not entitled to fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jun 23, 2023
2023 NY Slip Op 50690(U)
Provider prevailed
The provider established a reasonable excuse for failing to proceed at trial because its witness was out of the country. The action for assigned no-fault benefits had been dismissed under 22 NYCRR 208.14 (b) (2). Vacatur required both a reasonable excuse for the default and a meritorious cause of action. The Appellate Term, Second Department, found no improvident exercise of discretion in accepting the excuse and also found a meritorious claim. It affirmed the order granting the provider's motion to vacate the dismissal and restore the action to the trial calendar.
Trial court, Second Department
Jun 30, 2023
2023 NY Slip Op 23199
Insurer prevailed
The insurer's denial after the assignor's fourth EUO nonappearance was timely despite issuance more than 30 days after the second. The Civil Court, Queens County, granted the insurer's summary judgment motion, dismissed the provider's complaint, and denied the provider's cross motion. Following Quality Health Supply Corp. v Nationwide Ins., the court found that the insurer proved timely and proper mailing of scheduling letters, four nonappearances, and a timely denial after the last scheduled EUO. The provider did not dispute receipt of the letters and objected to the location while expressing the assignor's willingness to attend. EUO attendance was a condition precedent to coverage; additional opportunities to appear comported with 11 NYCRR 65-3.2 (b).
Trial court, Second Department
Jun 9, 2023
2023 NY Slip Op 50560(U)
Provider prevailed
A provider invoking collateral estoppel from a prior no-fault award need not prove master arbitrator affirmance or judicial confirmation. The Supreme Court, Kings County, denied the insurer's CPLR article 75 petition and confirmed the master arbitration award sustaining payment for postoperative supplies. The prior award established the surgery's medical necessity, and the peer review did not specifically address the supplies at issue. The insurer bore the burden of showing lack of finality, reversal or vacatur and failed to do so. The prior award was below the threshold for de novo review under Insurance Law § 5106 (c). The master arbitrator's review complied with 11 NYCRR 65-4.10 (a) (4), and the award was not irrational.
