Appellate Division, First Department
Dec 19, 2023
2023 NY Slip Op 06472
Split result
The provider's arbitration fee motion was granted, but interest was denied during its unexplained delay in filing notice of entry. The Appellate Division, First Department, reversed the order denying the provider's fee motion and remanded for recalculation under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (d). Contrary to the lower court's premise, the provider had requested those fees in its cross-petition to confirm the award, and the confirmation order had granted them. Under 11 NYCRR 65-3.9 (d), interest was properly withheld for the roughly three-month delay, which exceeded the order's 10-day filing allowance without explanation. The provider was also denied appellate attorney fees because prosecuting an application for fees does not support fees on fees.
Appellate Term, Second Department
Dec 22, 2023
2023 NY Slip Op 51471(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for its default based on nonreceipt of process or pandemic-related staffing reductions. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion to vacate the default judgment and compel acceptance of its answer under CPLR 5015 (a) (1) and 3012 (d). The absence of an electronic receipt record was insufficient without an affidavit from the employee identified as accepting service or an explanation for its omission. The claim that reduced staffing caused a processing failure was conclusory and unsubstantiated. Because relief required both a reasonable excuse and a potentially meritorious defense, the court did not reach whether the insurer established a defense.
Appellate Term, Second Department
Dec 22, 2023
2023 NY Slip Op 51476(U)
Insurer prevailed
A provider's election to arbitrate bars later no-fault litigation involving the same assignor and accident, even after withdrawal without prejudice. Before commencing this action against MVAIC, the provider submitted claims involving the same assignor and accident to arbitration, then withdrew the arbitration without prejudice. Following Cortez v Countrywide Ins. Co. and Roggio v Nationwide Mut. Ins. Co., the Appellate Term, Second Department, concluded that the election waived the provider's right to litigate subsequent benefit disputes arising from that accident. It reversed the order, insofar as appealed from, granted MVAIC's summary judgment motion dismissing the complaint, and reached no other issue.
Appellate Term, Second Department
Dec 15, 2023
2023 NY Slip Op 51406(U)
Split result
The defendant failed to prove that another entity was the proper defendant or that it was self-insured, defeating amendment and dismissal. Under CPLR 3025 (c), a conclusory claim-representative statement did not justify substituting the declaratory judgment plaintiff. Without that substitution, res judicata was not established under CPLR 3211 (a) (5). Self-insured status supporting CPLR 214 (2)'s three-year period was unproven; supporting documents were inadmissible under CPLR 4518 (c) or absent. The provider also failed to show untimely or legally deficient denials. The Appellate Term, Second Department, modified the order to deny amendment and dismissal, affirmed denial of the provider's summary judgment cross motion, and passed on no other issue.
Appellate Term, Second Department
Dec 8, 2023
2023 NY Slip Op 51394(U)
Insurer prevailed
The insurer's affidavits established that the unpaid portion of the provider's claim exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the reargument order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. Affidavits from a claims representative and a certified professional coder established the fee-schedule defense prima facie. The provider's opposition consisted solely of counsel's affirmation, which did not establish personal knowledge and therefore raised no triable issue. The court also dismissed the appeal from the original order because the reargument order had superseded it.
Trial court, Second Department
Dec 8, 2023
2023 NY Slip Op 51337(U)
Provider prevailed
The insurer's petition to vacate a no-fault award was denied because its policy-exhaustion evidence was insufficient. The Supreme Court, Kings County, confirmed the master arbitration award affirming the provider's recovery. The master arbitrator found only a bare payment ledger insufficient to sustain exhaustion; no exhaustion evidence had been submitted to the hearing arbitrator. The court found a rational basis for the determination, no excess of the master arbitrator's powers, and no ground for vacatur under CPLR 7511 (b). It rejected the contention that payment above policy limits was legally incorrect. The provider also received proceeding-related attorney fees under 11 NYCRR 65-4.10 (j) (4), calculated using the hourly rate in 11 NYCRR 65-4.10 (j) (2) because counsel supplied no dates or hours.
Trial court, Second Department
Dec 1, 2023
2023 NY Slip Op 51311(U)
Split result
The provider's request to increase its article 75 attorney fee was denied because the claimed work and rates were excessive. The Supreme Court, Kings County, granted reargument, renewal, and resettlement but adhered to the $195 fee under 11 NYCRR 65-4.10 (j) (4), declining the requested $3,300. The submissions relied on boilerplate and lacked detailed factual analysis and adequate evidence of comparable community rates. The court found three hours sufficient and used the $65 hourly rate in 11 NYCRR 65-4.10 (j) (2); no admissible, credible time evidence accompanied the cross-petition. It also clarified that simple interest ran from the arbitration filing date at two percent monthly, prorated using a 30-day month, under 11 NYCRR 65-4.5 (s) (3) and 65-3.9 (a) and (c).
