Appellate Term, Second Department
Sep 22, 2023
2023 NY Slip Op 51235(U)
Split result
The insurer's founded belief that the collision was staged did not establish its coverage defense through sufficient admissible evidence. The investigator relied on records, photographs, and EUO transcripts, but the insurer failed to establish noncoverage as a matter of law under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider likewise failed to establish its prima facie entitlement to summary judgment by showing untimely denials or denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed the denial of the provider's motion. It did not address misrepresentation in policy procurement because the insurer had not sought dismissal on that ground.
Appellate Term, Second Department
Sep 22, 2023
2023 NY Slip Op 51236(U)
Split result
An insurer seeking summary judgment on policy exhaustion must prove payment of the policy limits under 11 NYCRR 65-3.15. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed denial of the provider's cross motion. The insurer's claim specialist relied on a payment log that was not annexed to the moving papers, so the insurer failed to establish any payments under the policy and did not make a prima facie showing of exhaustion. The provider's affidavit failed to establish either that the claims had not been timely denied or that timely denials were conclusory, vague, or without merit as a matter of law.
Appellate Term, Second Department
Sep 22, 2023
2023 NY Slip Op 51237(U)
Split result
The insurer's summary judgment motion based on claim submission more than 45 days after service was denied on appeal. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed denial of the provider's cross motion. The insurer showed untimely submission prima facie, but the provider's opposing affidavit raised a triable issue, following Longevity Med. Supply, Inc. v MVAIC.
Trial court, Second Department
Sep 29, 2023
2023 NY Slip Op 51156(U)
Insurer prevailed
A master arbitrator's reversal for substantive legal error must be upheld unless irrational, even if legally incorrect. The hearing arbitrator awarded benefits after precluding the self-insurer's late evidence that its bus was not involved in the accident. The master arbitrator vacated the award and directed a new hearing, citing preclusion of the defense and disparate treatment of late submissions. The Supreme Court, Kings County, denied the injured claimant's petition under CPLR 7511 (b) (1) (iii). The master arbitrator had neither reweighed credibility nor reconsidered factual findings, and the decision was not arbitrary, capricious, or irrational. The court found it unnecessary to resolve whether the defense was precludable to decide the petition.
Trial court, First Department
Sep 26, 2023
2023 NY Slip Op 51516(U)
Insurer prevailed
The provider's claim against MVAIC was premature because exhaustion of remedies arising from the collision with a USPS vehicle was unproven. The injured claimant was a bicyclist, and the offending vehicle's owner and operator were known. Under Insurance Law § 5201 and Insurance Law § 5221, MVAIC remained a remedy of last resort. Unavailability of no-fault benefits from the United States did not excuse exhaustion: an administrative claim and, after denial, a tort action were available under 28 USC § 2675. The record did not establish use of that process or denial by USPS or the appropriate agency. The Civil Court, Bronx County, granted MVAIC summary judgment, denied the provider's cross motion, and dismissed without prejudice.
Trial court, Second Department
Sep 11, 2023
2023 NY Slip Op 50961(U)
The insurer failed to prove good cause for licensing verification with admissible evidence supporting summary judgment. The Civil Court, Queens County, denied dismissal based on failure to supply verification within 120 days under 11 NYCRR 65-3.8 (b) (3). The insurer relied on an unsigned EUO transcript without showing submission to the witness for signature under CPLR 3116 (a); the investigator's account of that testimony was hearsay. The provider's cross motion was also denied under CPLR 3212 (f) because outstanding financial and corporate records within its exclusive control raised factual issues concerning licensing eligibility under 11 NYCRR 65-3.16 (a) (12). Although the denials established receipt and overdue payment, the eligibility defense was not precluded by untimely denial.
Trial court, Second Department
Sep 8, 2023
2023 NY Slip Op 50953(U)
Provider prevailed
The insurer's petition to vacate a master arbitration award was denied because it submitted an award from a different arbitration. The Supreme Court, Kings County, applied prima facie evidentiary requirements comparable to CPLR 3212 (b) in the CPLR article 75 proceeding. Without the correct award, it could not assess the alleged errors. It granted the provider's cross-petition and confirmed the award. Under 11 NYCRR 65-4.10 (j) (4), it awarded a nominal litigation attorney's fee because counsel overlooked the defect and supplied no supporting fee evidence. Interest under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (c) was tolled between denial and arbitration because arbitration was not requested within 30 days.
Trial court, Second Department
Sep 1, 2023
2023 NY Slip Op 50938(U)
Split result
A provider's substantial compliance with reasonable additional verification requests does not make its claims payable. The insurer sought article 75 review of a master arbitration award affirming payment of eight chiropractic bills. The Supreme Court, Kings County, found five claims premature because requested sign-in sheets and livery-fund information remained outstanding under 11 NYCRR 65-3.5 (c) and 65-3.8 (a) (1). Medical documentation and the assignor's EUO testimony did not excuse compliance. The provider prevailed on medical necessity for two bills: treatment notes could overcome the IME report without a formal rebuttal. Nevertheless, because partial confirmation and vacatur were unavailable, the court granted vacatur under CPLR 7511 (b) (1) (iii) and remanded the entire claim for rehearing under CPLR 7511 (d).
