Appellate Division, First Department
Mar 20, 2025
2025 NY Slip Op 01727
Insurer prevailed
The insurer established a founded belief that the claimants' injuries did not arise from the reported accident. An investigator's affidavit identified suspicious circumstances; adverse-vehicle occupants described a bumper tap and stated that the insured vehicle had no passengers. The insurer also identified credibility concerns in the claimants' EUOs. The providers offered no admissible evidence rebutting that showing, and the claimants' defaults were treated as admissions that their EUO accounts were false and their injuries unrelated to the accident. The providers' prematurity argument failed under CPLR 3212 (f) because they did not show necessary evidence was exclusively within the insurer's possession or further attempts to obtain it. The Appellate Division, First Department, affirmed summary judgment declaring no duty to pay the providers' claims.
Appellate Division, Second Department
Mar 12, 2025
2025 NY Slip Op 01363
Provider prevailed
The provider was entitled to attorney's fees after defeating the insurer's petition to vacate its arbitration award. The Supreme Court, Kings County, denied the insurer's CPLR article 75 petition and confirmed the award, but denied the provider's request for attorney's fees. Insurance Law § 5106 (a) permits recovery of reasonable fees for securing payment of overdue no-fault claims, and 11 NYCRR 65-4.10 (j) (4) requires the court to fix fees for a court appeal from a master arbitration award. The Appellate Division, Second Department, reversed the order and judgment, insofar as appealed from, granted the provider's fee request, and remitted for determination of the reasonable fee.
Appellate Division, Second Department
Mar 12, 2025
2025 NY Slip Op 01337
Provider prevailed
Separate master arbitration awards cannot be combined to meet the $5,000 threshold for de novo review of no-fault claims. The insurer sought review of four awards for separately billed chiropractic treatments, each below the threshold. Under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (h) (1) (ii), a single award must reach $5,000, exclusive of interest and attorney's fees. The statutory language and legislative purpose did not permit aggregation despite common parties, services and arbitrator. The Appellate Division, Second Department, reversed, granted the provider's motion under CPLR 3211 (a) (2) to dismiss for lack of subject matter jurisdiction, awarded attorney's fees under 11 NYCRR 65-4.10 (j) (4), and remitted for determination of the reasonable fee.
Appellate Term, Second Department
Mar 28, 2025
2025 NY Slip Op 50492(U)
Insurer prevailed
The insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs. The affirmation recounted counsel's presence at the scheduled location, intention to conduct the EUOs if the provider appeared, and personal knowledge of the nonappearances. The provider's sole appellate challenge to that proof failed; its contention concerning counsel's recollection raised no issue because the affirmation was not unworthy of belief on its face. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 28, 2025
2025 NY Slip Op 50491(U)
Insurer prevailed
The provider's complaint was dismissed as abandoned because it failed to timely seek a default judgment or justify its delay. The provider obtained a default judgment more than two years after service of the summons and complaint. Under CPLR 3215 (c), a plaintiff that fails to initiate proceedings for entry of judgment within one year after default must offer a reasonable excuse for the delay and demonstrate a meritorious cause of action. The provider did not oppose the insurer's motion or make either showing. The Appellate Term, Second Department, reversed the order, vacated the default judgment and dismissed the complaint as abandoned, reaching no other issue.
Appellate Term, Second Department
Mar 28, 2025
2025 NY Slip Op 50493(U)
Provider prevailed
A material misrepresentation defense concerning a vehicle's garaging location is subject to preclusion for untimely denial. The insurer sought summary judgment dismissing the provider's assigned no-fault claims on the ground that the assignor materially misrepresented where the vehicle was garaged. Because the defense was subject to preclusion, the insurer had to establish timely denial on that ground and failed to do so. The Appellate Term, Second Department, reversed the order and denied the insurer's motion, without reaching any other issue.
Appellate Term, Second Department
Mar 21, 2025
2025 NY Slip Op 50487(U)
Provider prevailed
The provider's delay in entering judgment on an unpaid settlement did not justify tolling statutory no-fault interest. Under CPLR 5003-a, the insurer owed payment after settlement without a demand, and it did not show that the provider prevented payment. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, vacated the denial of the provider's CPLR 5019 (a) correction motion and the interest toll, granted the motion, and remitted for a new judgment. Because the claim preceded April 5, 2002, former 11 NYCRR 65.15 (h) required interest compounded at 2% monthly. Insurance Law § 5106 (a) and that regulation also superseded CPLR 5004's general postjudgment rate.
Appellate Term, Second Department
Mar 7, 2025
2025 NY Slip Op 50306(U)
Insurer prevailed
The insurer's verification requests for records bearing on the provider's licensing eligibility were proper. The requests sought management agreements, W-2 forms, business bank records and leases to assess eligibility under 11 NYCRR 65-3.16 (a) (12) and Mallela. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment and separate motion to dismiss affirmative defenses. Denial of the insurer's summary judgment motion in a declaratory judgment action had no preclusive effect because it was not a final determination on the merits. The court did not reach the provider's amended cross motion because the appealed order had not addressed it.
Trial court, Second Department
Mar 26, 2025
2025 NY Slip Op 50947(U)
Provider prevailed
The insurer's summary judgment motion failed because the sufficiency of the provider's verification response presented a factual issue. The Civil Court, Richmond County, directed trial on whether the provider's document submission satisfied the timely verification demand issued with the EUO scheduling letter. Although the EUO request tolled the time to pay or deny, it did not extend the verification-request deadline under 11 NYCRR 65-3.5 (b). New demands made after that deadline were nullities under Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., while previously requested items remained due. Under 11 NYCRR 65-3.5 (o), the provider had to supply information within its control or possession or written reasonable justification; whether its response complied required trial.
Trial court, Second Department
Mar 24, 2025
2025 NY Slip Op 50376(U)
Insurer prevailed
The provider failed to supply requested verification within 120 days or reasonably justify noncompliance. The Civil Court, Kings County, granted the insurer's cross motion for summary judgment, dismissed the complaint with prejudice, and denied the provider's motions to dismiss affirmative defenses and compel discovery as moot. Under 11 NYCRR 65-3.5 (o), the insurer established nonreceipt of requested documents. The owner's original and amended affidavits qualified compliance as limited to documents deemed proper and accessible, without corroborating documentary proof. Correspondence treating licensing-related requests as nullities neither established compliance nor furnished reasonable justification. Following Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., the court found no triable issue.
Trial court, Second Department
Mar 13, 2025
2025 NY Slip Op 50358(U)
Insurer prevailed
The provider's default judgment motion failed because Vehicle and Traffic Law § 253 did not authorize service on the out-of-state insurer. The Civil Court, Kings County, denied the unopposed motion under CPLR 3215 and 320 and dismissed the assigned no-fault action without prejudice. The service affidavit invoked Vehicle and Traffic Law § 253, which addresses nonresident owners or operators involved in New York motor vehicle accidents. The Illinois insurer was neither a nonresident operator nor a nonresident owner within that provision. Because the defect appeared on the affidavit's face, the court resolved service as a matter of law without a traverse hearing and found personal jurisdiction lacking.
Trial court, Second Department
Mar 11, 2025
2025 NY Slip Op 50315(U)
Insurer prevailed
Electronically signed peer review reports are admissible when properly subscribed and affirmed under CPLR 2106. The Civil Court, Richmond County, granted the insurer summary judgment dismissing both assigned no-fault claims for lack of medical necessity. Applying State Technology Law §§ 302 (3) and 304 (2), the court treated the electronic signatures as subscribed writings; the reports' penalty-of-perjury language satisfied the then-applicable affirmation requirement. The insurer also established timely mailing of denials through evidence of its processing and mailing procedures. The provider offered no affirmation or testimony rebutting the peer reviews' medical conclusions. The court did not reach the fee-schedule or policy-exhaustion defenses.
Trial court, First Department
Mar 3, 2025
2025 NY Slip Op 50277(U)
Split result
The insurer established the assignor's EUO nonappearance but failed to eliminate factual issues concerning mailing of the notices. On the insurer's CPLR 3212 (b) motion, the Civil Court, Bronx County, found that counsel's mailing submissions lacked demonstrated personal knowledge and conflicted with the attached notices concerning certified mailing. The examiner's description of office procedures did not ensure that notices were properly addressed and mailed. A certified transcript from a noninterested reporter and counsel's affidavit of personal knowledge established nonappearance. The court granted the motion only to establish that fact and left proper mailing for trial.
