Appellate Division, Second Department
Sep 11, 2024
2024 NY Slip Op 04388
Insurer prevailed
The insurer established that the claimant was struck by an e-bike rather than a motor vehicle covered by the uninsured motorist provision. The Appellate Division, Second Department, affirmed the reargument order, insofar as appealed from, sustaining a permanent stay of arbitration under CPLR article 75, and dismissed the superseded judgment appeal. The stipulated police report identified an e-bike and no motor vehicles. The claimant failed to rebut that showing: an eyewitness who described a motorcycle had observed it only during the accident and identified no license plate, engine, gas tank or power source. Deferring to the hearing court's opportunity to assess witnesses, the court upheld its finding. The argument based on prior no-fault medical payments was improperly first raised on reargument.
Appellate Term, First Department
Sep 30, 2024
2024 NY Slip Op 51346(U)
Insurer prevailed
⚠ Reversed by Health E. Ambulatory Surgical Ctr. v Country-Wide Ins. Co. (2025 NY Slip Op 06648)
The provider failed to prove its claim was overdue because the admissions it relied on also showed timely, unanswered verification requests. The Appellate Term, First Department, reversed the judgment after a nonjury trial and dismissed the complaint, dismissing the separate order appeal as subsumed. No witnesses were sworn and no evidence was received; the provider relied solely on admissions in the insurer's prior summary judgment motion. Those admissions established receipt of the claim but also outstanding verification. The provider therefore failed to establish its prima facie case under 11 NYCRR 65-3.8 (c), Insurance Law § 5106 (a) and Viviane Etienne Med. Care.
Appellate Term, Second Department
Sep 27, 2024
2024 NY Slip Op 51540(U)
Provider prevailed
The insurer's conclusory claim of a clerical email error did not establish a reasonable excuse for its default in answering. The Appellate Term, Second Department, reversed the order and denied the insurer's motion to vacate the provider's default judgment under CPLR 5015 (a) (1) and compel acceptance of an answer under CPLR 3012 (d). A claim representative stated that an email forwarding the pleadings to counsel had not been properly sent. No affidavit from a person with personal knowledge explained the error, identified who made or discovered it, or stated when it was discovered. Because the insurer failed to show a reasonable excuse, the court did not consider whether it had a potentially meritorious defense.
Appellate Term, Second Department
Sep 27, 2024
2024 NY Slip Op 51538(U)
Insurer prevailed
MVAIC obtained dismissal without prejudice because it had not received the provider's claim forms and the action was premature. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC summary judgment. MVAIC established nonreceipt prima facie. The provider owner's affidavit asserted personal mailing to an unnamed insurance carrier without identifying the recipient or mailing address, and the attached claim forms were dated after the purported mailing. That proof did not establish a presumption of timely mailing and receipt. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), MVAIC's time to pay or deny never began to run.
Trial court, Second Department
Sep 13, 2024
2024 NY Slip Op 51308(U)
A cross-claim requires an answer only when the demand for an answer appears in the cross-claim itself. The Supreme Court, Kings County, denied the bus lessor's unopposed motion under CPLR 3215 for a default judgment against the bus lessee and driver. The insurer's underlying action sought recovery of no-fault payments and property damages. Under CPLR 3011, a separate letter demanding an answer did not trigger a response obligation; the cross-claims were deemed denied or avoided. The lessor also failed to prove proper service. Because the codefendants had not appeared, CPLR 3012 (a) required service as for a summons and complaint. Filing through NYSCEF and mailing the pleading did not satisfy that requirement.
