Appellate Term, Second Department
Nov 15, 2024
2024 NY Slip Op 51804(U)
Provider prevailed
An insured need not prove the absence of an assignment when no proof of an assignment has been presented. The Appellate Term, Second Department, affirmed the reargument order, insofar as reviewed, vacating the arbitrator's and master arbitrator's awards, denying confirmation, and directing a rehearing before a new arbitrator. The awards had denied no-fault benefits for shoulder surgery and related services. The court relied on the Civil Court's reasons for vacatur and additionally found the arbitrator's assignment ruling contrary to settled law under 11 NYCRR 65-3.11 (a) and Lopes v Liberty Mut. Ins. Co. The appeal from the original order was dismissed as superseded; the reargument determination was reviewed under CPLR 5517 (b).
Appellate Term, Second Department
Nov 8, 2024
2024 NY Slip Op 51557(U)
Insurer prevailed
The provider's objection to the EUO location did not raise a factual issue because every scheduling letter offered virtual attendance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint for EUO nonappearance. Civil Court had effectively limited the trial under CPLR 3212 (g) to EUO scheduling in light of the provider's objections and the insurer's responses. The virtual option resolved the location issue, and the provider did not challenge Civil Court's finding that the insurer was otherwise entitled to judgment.
Trial court, Second Department
Nov 8, 2024
2024 NY Slip Op 51521(U)
Provider prevailed
The insurer failed to establish proper mailing of IME notices through its vendor's affidavit or supporting records. The Civil Court, Richmond County, denied summary judgment under CPLR 3212 on the defense that the assignor's nonappearance at two scheduled IMEs violated a coverage condition. The vendor manager described the mailing process but did not state that compliance had been ensured or describe steps taken to ensure proper addressing and mailing, as required under Nassau Ins. Co. v Murray. Copies of the notices did not establish mailing, and no business record documented mailing; under Bank of NY Mellon v Gordon, the record itself supplies proof. A factual issue remained for trial, and the court expressly left the provider's other opposition arguments unaddressed.
