Appellate Term, First Department
May 23, 2024
2024 NY Slip Op 50614(U)
Insurer prevailed
MVAIC's IME report established lack of medical necessity, and the provider's opposition supplied no competent medical proof. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's assigned no-fault complaint. The orthopedic surgeon's IME report supplied a factual basis and medical rationale for concluding that the assignor's injuries had resolved and further treatment was unnecessary. The provider opposed with an attorney's affirmation and a highlighted copy of MVAIC's own report purporting to identify inconsistencies. Without medical evidence or other competent proof of medical necessity, those submissions failed to raise a triable issue.
Appellate Term, Second Department
May 17, 2024
2024 NY Slip Op 50630(U)
Split result
The insurer failed to prove mailing of a Florida policy cancellation notice and was denied dismissal on its no-coverage defense. Florida Statutes § 627.728 (3) (a) required notice at least 10 days before cancellation for nonpayment, and Florida Statutes § 627.728 (5) governed proof of notice. The mail list lacked USPS markings, the bulk-mail certificate did not establish mailing to the insured's address, and the employee affidavit showed neither actual mailing nor standard mailing procedures. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's dismissal motion. It upheld denial of the provider's summary judgment cross motion because the provider failed to establish that the claim was not timely denied or that the denials were legally insufficient.
Trial court, Second Department
May 31, 2024
2024 NY Slip Op 50654(U)
Split result
The insurer's dismissal request based on a New Jersey default coverage judgment was denied because the provider never appeared there. The Civil Court, Kings County, applied CPLR 5401 to deny full faith and credit to that declaratory judgment and rejected dismissal on res judicata and collateral estoppel grounds. The court nevertheless vacated the provider's New York default judgment and compelled acceptance of the insurer's answer under CPLR 3012 (d). The answer had been filed by the deadline the provider acknowledged, and the alleged 13-day delay in receipt was de minimis, nonwillful, and nonprejudicial. Thus, the insurer obtained vacatur and acceptance of its answer, while the provider defeated dismissal of its assigned no-fault claim.
