No-Fault Decisions, March 2024

Appellate Term, Second Department Mar 22, 2024 2024 NY Slip Op 24113 Provider prevailed

Harvey Family Chiropractic, Physical Therapy & Acupuncture, PLLC v Liberty Lines Tr., Inc.

The corporate defendant failed to establish improper service or venue in the provider's assigned no-fault action. The Appellate Term, Second Department, upheld denial of dismissal under CPLR 3211 (a) (8). An affidavit denying an office or business in Kings County did not exclude an office elsewhere in New York City or service through the Secretary of State under Business Corporation Law § 306 (c) or CCA 404. The defendant also failed to establish that the assignor did not reside in Kings County; CCA 305 (a) treats the assignor as the plaintiff for venue. The court deleted the sua sponte transfer to Westchester because no transfer was requested, leaving open whether Civil Court could transfer outside its territorial jurisdiction.

Appellate Term, Second Department Mar 15, 2024 2024 NY Slip Op 24111 Split result

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.

⚠ Not followed by Medical Supply Depot Group Corp v State Farm Mut. Auto. Ins. Co. PI/BI Claims (2026 NY Slip Op 51339(U))

An EUO request tolls the time to pay or deny a claim, not the deadline to request new verification. The insurer sought summary judgment based on the provider's failure to supply written verification within 120 days. Under 11 NYCRR 65-3.8 (a) (1), the toll ended when the provider attended the EUO. Under 11 NYCRR 65-3.5 (b) and 65-3.8 (l), the subsequent request for new verification, made more than 30 days after receipt of the claim forms, was ineffective. The Appellate Term, Second Department, modified the order to deny the insurer's motion and upheld denial of the provider's cross motion for unresolved factual issues under CPLR 3212 (b). Denial of summary judgment in a declaratory judgment action lacked preclusive effect; the court did not reach the objection to excluding that decision.

Appellate Term, Second Department Mar 15, 2024 2024 NY Slip Op 50406(U) Provider prevailed

Longevity Med. Supply, Inc. v Nationwide Ins. Co.

The insurer failed to establish that the assignor's injuries arose from an assault rather than use or operation of an insured vehicle. In the provider's action for assigned no-fault benefits, the insurer sought summary judgment on the ground that the assignor was not an eligible injured person under Insurance Law § 5103 and 11 NYCRR 65-1.1 (d) (a). The hospital records containing the statements relied upon were uncertified, and no foundation was established under CPLR 4518 (a) or (c). Even if admissible, the records did not eliminate material factual questions about the cause of the injuries. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.

Appellate Term, Second Department Mar 14, 2024 2024 NY Slip Op 50395(U) Insurer prevailed

GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co.

The provider failed to raise a triable issue on the insurer's EUO nonappearance defense where virtual attendance was offered. The insurer established timely mailing of initial and follow-up EUO scheduling letters, the provider's failure to appear, and timely, proper denials following the last scheduled EUO. The District Court had found a factual issue concerning whether the EUO location was reasonably convenient, but the scheduling letters offered virtual appearances. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's summary judgment motion dismissing the claims at issue on appeal.

Appellate Term, Second Department Mar 14, 2024 2024 NY Slip Op 50397(U) Insurer prevailed

GPLW Acupuncture, P.C. v Nationwide Mut. Ins. Co.

The provider raised no triable issue on the EUO nonappearance defense where the scheduling letters offered virtual attendance. An insurer affidavit established timely mailing of the EUO scheduling letters and denial forms through standard office practices and procedures, with reliance on 11 NYCRR 65-3.8 (l). Attorney affidavits and certified transcripts of statements of nonappearance established the provider's failure to attend. The offer of virtual appearances answered the District Court's concern about whether the scheduled location was reasonably convenient. 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 Mar 1, 2024 2024 NY Slip Op 50393(U) Insurer prevailed

J.C. Healing Touch Rehab, P.C. v MVAIC

MVAIC established that the provider's action was commenced after the three-year limitations period expired. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the assigned no-fault action, and denied the provider's cross motion. Following Kings Highway Diagnostic Imaging, P.C. v MVAIC, the court found MVAIC's motion papers sufficient to establish the limitations defense, and the provider failed to raise a factual issue concerning timeliness. The record contained no facts supporting Civil Court's sua sponte determination that MVAIC was estopped from asserting that defense. The court reached no other issue.

Trial court, Second Department Mar 21, 2024 2024 NY Slip Op 50301(U) Insurer prevailed

Community Med. Imaging P.C. v American Tr. Ins. Co.

A no-fault arbitrator may require a mailing affidavit when documentary proof of timely claim submission is inconclusive. The provider sought vacatur of a master arbitration award affirming denial of its MRI claim under the 45-day submission requirement of 11 NYCRR 65-1.1 (d). The hearing arbitrator found the USPS certificate's postmark illegible and noted the absence of a mailing affidavit. Under 11 NYCRR 65-4.5 (o) (1), strict evidentiary rules did not govern; mailing was a factual issue, and 11 NYCRR 65-4.10 (a) (4) did not authorize reweighing evidence. The Supreme Court, Kings County, denied the petition and confirmed the award under CPLR 7511 (e), finding the master arbitrator's review rational and no ground for vacatur under CPLR 7511 (b).

Trial court, First Department Mar 18, 2024 2024 NY Slip Op 24083 Insurer prevailed

Hereford Ins. Co. v Physio Care Physical Therapy, PC

A statement satisfying amended CPLR 2106 has the force of an affidavit regardless of the declarant's profession or location. The insurer sought an unopposed default judgment against the injured claimant declaring no obligation to pay benefits. Its adjuster's unsworn statement, signed and affirmed under penalties of perjury in the statutory form, asserted a founded belief that the claimant's injuries and treatment did not arise from an insured event. Applying CPLR 2106 as amended effective January 1, 2024, the Supreme Court, New York County, accepted the statement as proof of the facts constituting the claims under CPLR 3215 (f). Finding service under CPLR 308 (2) and a default established, it granted judgment for the insurer.

Trial court, Second Department Mar 5, 2024 2024 NY Slip Op 50276(U) Insurer prevailed

Primavera Physical Therapy, P.C. v State Farm Ins. Co.

The provider's action was barred by a default declaratory judgment denying coverage for the same accident. The Civil Court, Kings County, took judicial notice of a Supreme Court, Nassau County, judgment declaring that the provider had no right to no-fault payment because the loss was intentional and the accident staged. Finding identical parties and the same accident, the court applied res judicata and collateral estoppel despite the judgment's omission of a specific claim number. It rejected the provider's request for an adjournment based on alleged procedural untimeliness and prejudice by ambush. The insurer's cross motion under CPLR 3211 (a) (5) and 3212 was granted, dismissing the complaint; the provider's CPLR 3124 discovery motion was deemed moot.