Appellate Division, First Department
Oct 24, 2023
2023 NY Slip Op 05369
Insurer prevailed
An insurer's duties cease upon payment of the contractual limit of its no-fault policy. The provider sought CPLR article 75 vacatur of a master arbitration award affirming denial of benefits. Policy exhaustion before arbitration was undisputed, but the provider argued that its claim retained payment priority because submission and denial preceded exhaustion. The arbitrator's reliance on Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., rather than contrary Second Department precedent, did not warrant reversal. Following Matter of DTR Country-Wide Ins. Co. v Refill Rx Pharm., Inc., the Appellate Division, First Department, affirmed denial of the petition because an award after exhaustion would exceed the arbitrator's power.
Appellate Division, First Department
Oct 10, 2023
2023 NY Slip Op 05094
Insurer prevailed
The provider's request for additional attorney's fees was denied because its lengthy delay was unexplained and its fees were undocumented. After defeating the insurer's petition to vacate a no-fault master arbitration award, the provider waited approximately five and a half years to move for fees under 11 NYCRR 65-4.10 (j) (4). A proposed judgment submitted within the period prescribed by 22 NYCRR 202.48 had been returned for correction, but the provider offered no explanation for failing to correct it or timely seek fees. The claim was effectively abandoned. The Appellate Division, First Department, affirmed denial of the motion, finding a proper exercise of discretion given the delay and absence of contemporaneous fee documentation.
Appellate Term, Second Department
Oct 6, 2023
2023 NY Slip Op 51241(U)
Insurer prevailed
The provider's complaint was dismissed for incomplete discovery responses under a conditional so-ordered stipulation. The Appellate Term, Second Department, affirmed dismissal under CPLR 3126. The provider's interrogatory responses were improperly verified, and the record did not show that promised expert-witness information had been supplied. Because the provider had not timely challenged the demands under CPLR 3122 (a) and 3133 (a), it had to respond except to privileged or palpably improper requests; it established neither exception. The conditional stipulation became absolute when the provider failed to provide complete responses. To avoid dismissal, the provider had to demonstrate both a reasonable excuse and a potentially meritorious cause of action, but it demonstrated neither.
Appellate Term, Second Department
Oct 5, 2023
2023 NY Slip Op 51239(U)
Provider prevailed
The provider's petition to vacate the master arbitrator's award was granted because the award lacked a rational basis. The Appellate Term, Second Department, affirmed the judgment granting relief under CPLR 7511 and remitting the matter for a new determination, relying on Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co.; the award had upheld an arbitrator's denial of assigned no-fault benefits.
Trial court, Second Department
Oct 11, 2023
2023 NY Slip Op 51094(U)
Provider prevailed
The insurer failed to establish a staged collision, and inconsistent insurer names raised a triable issue on the EUO no-show defense. The provider sought payment for services rendered to an assignor who was a passenger in the insured vehicle. The insurer relied on the drivers' purported confessions supplied by the other vehicle's insurer. Following Repwest Ins. Co. v Sasan Family Chiropractic, P.C., the court found those statements insufficient without corroboration by an affiant with personal knowledge of their making and reliability. The Civil Court, Kings County, denied summary judgment under CPLR 3212 but granted amendment of the caption under CPLR 3025 (b) to identify the proper insurer.
