Appellate Term, Second Department
Aug 30, 2024
2024 NY Slip Op 51205(U)
Split result
A no-fault claim accrues 30 days after the insurer receives it, absent tolling or proof that the claimant received an earlier denial. Applying CPLR 203 (a), CPLR 213 (2) and Insurance Law § 5106 (a), the Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the first and second causes of action as untimely. Those claims were received November 28, 2011, and suit commenced January 23, 2018, beyond six years after accrual. The insurer failed to establish when denials were mailed or received. Dismissal of the third through sixth causes of action remained denied because earlier accrual was unproved. Civil Court's CPLR 3212 (g) findings limiting trial issues remained intact because the insurer offered insufficient grounds to strike them.
Appellate Term, Second Department
Aug 13, 2024
2024 NY Slip Op 51191(U)
Insurer prevailed
The no-fault regulations do not require EUO notices to be provided in writing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the provider's complaint. After missing the first EUO, the assignor requested that the second be rescheduled three days later. The insurer established that its counsel's office orally supplied the new date, time and location, and the provider offered no affidavit based on personal knowledge rebutting that proof. Oral notice sufficed under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b), despite possible nonreceipt of written confirmation. The two nonappearances and timely denial were undisputed.
Appellate Term, Second Department
Aug 13, 2024
2024 NY Slip Op 51188(U)
Split result
The insurer failed to establish preclusion based on default declaratory judgments obtained by a different entity. The Appellate Term, Second Department, modified the amended order to deny the insurer's cross motion for summary judgment, while affirming denial of the provider's motion. The insurer did not demonstrate that it was the entity that obtained the staged-accident declarations or that that entity was the proper insurer. The court also concluded that the provider had not appeared in the declaratory judgment action and lacked a full and fair opportunity to litigate. The provider failed to establish claim receipt under Insurance Law § 5106 (a) because it supplied no insurer address; the insurer's coverage of this accident also remained disputed.
