Appellate Term, Second Department
Jul 21, 2023
2023 NY Slip Op 50794(U)
Insurer prevailed
The provider failed to show that it supplied requested verification or reasonably justified noncompliance. The insurer established timely mailing of initial and follow-up requests, nonreceipt of verification and timely denials. Under 11 NYCRR 65-3.5 (o) and 11 NYCRR 65-3.8 (b) (3), the owner's statement that responses were mailed to the extent proper and in the owner's possession did not raise a triable issue. The provider's contention that requests issued after an EUO were improper also failed: that EUO concerned a different assignor and preceded submission of these claims by five months. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 21, 2023
2023 NY Slip Op 50795(U)
Insurer prevailed
The provider's sixth cause of action was barred by res judicata, and its mailing challenge failed on the remaining claims. The insurer established that the declaratory judgment action concerned the same assignor, accident and service date as the sixth claim. Recovery would impair rights established by that judgment; an unvacated default judgment is conclusive for res judicata purposes. For the first through fifth and seventh causes of action, dismissed for EUO nonappearance, the insurer's employee affidavit established a presumption of timely mailing of scheduling letters and denials. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross-motion, sustaining dismissal of the sixth cause of action on a different ground.
Appellate Term, Second Department
Jul 21, 2023
2023 NY Slip Op 50796(U)
Insurer prevailed
The insurer's employee affidavit established a presumption of timely mailing of the EUO scheduling letters and denial forms. In the provider's action for assigned no-fault benefits, the appeal was limited to summary judgment rulings on the first and second causes of action. The provider's sole challenge to the insurer's motion concerned mailing proof. Relying on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing those causes of action and denying the provider's cross-motion on them.
Trial court, First Department
Jul 25, 2023
2023 NY Slip Op 50762(U)
Provider prevailed
The insurers' default-judgment motion was denied for insufficient proof of the provider's noncompliance with post-EUO verification. The Supreme Court, New York County, found service and default established but proof of the facts constituting the claim insufficient under CPLR 3215 (f). The insurers omitted the EUO transcript, post-EUO demands, responses and objections, and document production. Conclusory assertions could not establish whether the provider inadequately answered requests the insurers were entitled to make. The court expressly left open whether sufficient cause existed to seek Mallela information. It directed that the declaratory judgment action would be dismissed unless the insurers renewed their motion within 30 days of entry of the order.
Trial court, First Department
Jul 13, 2023
2023 NY Slip Op 50745(U)
Split result
The insurer established EUO nonappearance defenses against seven providers, but one provider's binding claim withdrawal eliminated any controversy. The Supreme Court, New York County, found the initial EUO requests timely under 11 NYCRR 65-3.5 (b) and (d), and found that three claimants missed both scheduled and rescheduled EUOs. The insurer supplied sufficient objective justification; outstanding discovery did not warrant delay, and untimely denials did not preclude the coverage defense. Summary judgment declaring noncoverage was granted against seven providers. Under CPLR 3212 (b), the court granted summary judgment to the nonmoving eighth provider, dismissing the insurer's claims because its principal's affidavit withdrew claims with prejudice and bound it against future submissions. Remaining claims were severed to continue.
Trial court, First Department
Jul 13, 2023
2023 NY Slip Op 50746(U)
Provider prevailed
An insurer must timely deny no-fault claims to preserve a defense based on material misrepresentations in obtaining the policy. The Supreme Court, New York County, denied the insurers' default-judgment motion concerning alleged misrepresentations of the vehicle's garaging address and operators. Under 11 NYCRR 65-3.8 (c), that defense is subject to the 30-day denial deadline. Although denials followed completed verification by two days, the insurers did not establish how much time had elapsed before the first EUO request. Delay letters requesting no verification did not toll the deadline. The insurers therefore failed to establish the facts constituting their claims; absent a renewed motion within 30 days of entry, the action would be dismissed against the defaulting defendants.
