Applying Manhattan Telecom., the First Department held that missing CPLR 3215 (f) proof does not make a default declaratory judgment a nullity, so claimants seeking vacatur had to show a reasonable excuse under CPLR 5015 (a) (1) (Hereford v Interdependent Acupuncture). The Appellate Term, Second Department, found res judicata unproven where the insurer's default declaratory judgment concerned an accident on a different date (Trapezius v Adirondack). In the Civil Court, Kings County applied ARCO and NGM Acupuncture to toll the time to deny a later bill received before the second EUO no-show, and Bronx County treated a requested NF-2 as primarily proof of claim, whose non-submission precluded coverage.
Our summary of the month’s decisions, not the courts’ words.
Appellate Division, First Department
Jan 2, 2025
2025 NY Slip Op 00021
Insurer prevailed
The injured claimants failed to establish a reasonable excuse for defaulting in the insurer's no-fault declaratory judgment action. The Appellate Division, First Department, affirmed the denial of their motion to vacate the default judgments under CPLR 5015 (a) (1). They conceded receiving service but offered no explanation for failing to respond or forward the pleadings to counsel. Counsel's suggestion that a separate personal injury action caused confusion was insufficient, so a potentially meritorious defense need not be considered. Under Manhattan Telecom. Corp. v H & A Locksmith, Inc., inadequate proof under CPLR 3215 (f) would not make the judgments jurisdictionally void. In any event, the insurer submitted admissible evidence supporting its coverage disclaimer.
Appellate Term, Second Department
Jan 17, 2025
2025 NY Slip Op 50173(U)
Split result
The insurer failed to establish preclusion because the provider's complaint and the declaratory judgment identified different accident dates. The Appellate Term, Second Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed denial of the insurer's motion. The insurer did not establish that the claims arose from the accident covered by a default declaration of no coverage. Its employee's contrary affidavit was conclusory and submitted in opposition to the cross motion, not in support of its own motion. Neither res judicata nor collateral estoppel was established. The provider also failed to eliminate the accident-date issue or establish untimely denials or timely denials that were legally insufficient.
Trial court, Second Department
Jan 14, 2025
2025 NY Slip Op 50021(U)
Insurer prevailed
A pending EUO request tolls the time to pay or deny later claims from the same provider for the same assignor before two EUO no-shows. The Civil Court, Kings County, granted the insurer's cross motion for summary judgment, denied the provider's motion, and dismissed the action with prejudice. The insurer established timely mailing of EUO notices, two nonappearances, and timely denials. The provider challenged the denial of a bill received after the first nonappearance but before the second. Following ARCO Med. NY, P.C. v Lancer Ins. Co. and NGM Acupuncture, P.C. v Nationwide Ins. Co., the court found that bill remained tolled and was timely denied within 30 days of the second nonappearance.
Trial court, First Department
Jan 13, 2025
2025 NY Slip Op 50103(U)
Provider prevailed
The insurer failed to prove the assignor's EUO and IME nonappearances through admissible evidence based on personal knowledge. The Civil Court, Bronx County, denied summary judgment and limited trial to nonappearance. Although the policy was issued in Florida, the insurer showed no substantive conflict with New York law concerning EUO noncompliance, so forum law applied. New York's CPLR 3212 governed the motion. The claims manager's affidavit established mailing of the notices but offered conclusory assertions of nonappearance without explaining personal knowledge or procedures for recording missed EUOs. No affidavit established personal knowledge of missed IMEs or the physicians' recording procedures. The insurer therefore failed to establish a breach of a coverage condition.
Trial court, First Department
Jan 10, 2025
2025 NY Slip Op 50102(U)
Provider prevailed
The insurer failed to show proper consideration of the provider's explanation that late bills had first been sent to the wrong insurer. The Civil Court, Bronx County, denied the insurer's summary judgment motion and granted the provider's cross motion. Although submission exceeded the 45-day deadline, the bills included a written explanation. Under 11 NYCRR 65-1.1, 65-3.5 (l), and 65-3.3, late filing may be excused by clear and reasonable justification, with appropriate consideration of mistaken insurer identification. The insurer offered no evidence of proper review or notice of its objections to the explanation, rendering its denial improper. The provider's mailing affidavit established mailing to both insurers, and the improper denial rendered payment overdue.
Trial court, First Department
Jan 10, 2025
2025 NY Slip Op 50101(U)
Insurer prevailed
Failure to submit a requested completed NF-2 breaches a condition precedent to no-fault coverage. The Civil Court, Bronx County, granted the insurer summary judgment and dismissed the provider's complaint. The court treated the NF-2 primarily as written proof of claim under oath, rather than notice of claim, under 11 NYCRR 65-2.4 and 65-3.5 (f). Although a late-notice defense requires a timely denial, the court found the 30-day notice rule inapplicable to the failure to submit the requested application. Drawing on EUO and IME noncompliance authorities, it treated submission as a coverage condition. The insurer's affidavit established mailing of application requests and nonreceipt of a completed application; the provider raised no factual issue.
