Applying Delacruz, the First Department held an EUO-based summary judgment motion premature where the insurer had not disclosed its objective justification under 11 NYCRR 65-3.5 (e) or fully answered discovery seeking it (State Farm v Lifeline). Following Hereford v Lida's, it held the 65-3.5 and 65-3.6 notification requirements inapplicable to IME notices sent before claims arrived, and required no timely disclaimer for an IME no-show (Nationwide v Gaines). The Appellate Term, Second Department, required proof of exhaustion before completed claims arrived (Chiropractic Assoc. of Richmond Hill) and allowed CPLR 317 vacatur without a reasonable excuse after service through the Department of Financial Services (Medical Supply of NY v Berkshire).
Our summary of the month’s decisions, not the courts’ words.
Appellate Division, First Department
Apr 3, 2025
2025 NY Slip Op 02025
Provider prevailed
The insurers' EUO-based summary judgment motion was premature because they had not disclosed their objective justification for the EUOs. The insurers sought a declaration of no obligation to pay the provider's bills, alleging nonappearance and refusal to produce a knowledgeable individual. Under 11 NYCRR 65-3.5 (e), their criteria for requiring EUOs were essential to the provider's opposition and exclusively within their knowledge and control. They had not fully answered discovery seeking those standards. The Appellate Division, First Department, reversed, denied the motion and vacated the declaration. Whether the no-coverage defense was subject to preclusion remained undecided pending determination of the EUO rationale.
Appellate Division, First Department
Apr 1, 2025
2025 NY Slip Op 01896
Insurer prevailed
IME notices sent before receipt of claims are not subject to the verification notification requirements of 11 NYCRR 65-3.5 and 65-3.6. The insurers established that the injured claimant failed to attend two properly noticed IMEs through a scheduling employee's affidavit and consistent affirmations from the IME physician. The providers' objection that the IMEs were untimely failed because the notices preceded receipt of claims. Nonappearance was a coverage defense applying to all claims rather than bill by bill, and the insurers were not required to establish timely disclaimer. The Appellate Division, First Department, reversed the denial of summary judgment, granted the insurers' motion, and declared no obligation to pay the two respondent providers' no-fault claims.
Appellate Term, Second Department
Apr 10, 2025
2025 NY Slip Op 50628(U)
Insurer prevailed
The master arbitrator's award had a rational basis because the parties' stipulation limited the dispute to the assignor's IME appearance. The arbitrator found nonappearance and failure to satisfy a coverage condition, and the master arbitrator upheld denial of benefits. The provider sought vacatur under CPLR article 75, arguing that the IME notices, examinations, and denials were untimely. Limited judicial review asks whether a compulsory award has evidentiary support, is rational, or has a plausible basis. The stipulation supplied that basis here. The Appellate Term, Second Department, upheld denial of vacatur and modified the order to confirm the award under CPLR 7511 (e). It also noted that CPLR 411 requires a special proceeding to terminate in a judgment.
Appellate Term, Second Department
Apr 4, 2025
2025 NY Slip Op 50506(U)
Provider prevailed
The insurer failed to establish that policy limits were exhausted before it received the provider's completed claims. To obtain summary judgment on policy exhaustion, the insurer had to prove that it paid the policy limits in accordance with 11 NYCRR 65-3.15. Its failure to establish exhaustion before receipt of completed claims defeated its prima facie showing. The Appellate Term, Second Department, affirmed the denial of the insurer's motion for summary judgment dismissing the complaint, without reaching any other issue.
Appellate Term, Second Department
Apr 4, 2025
2025 NY Slip Op 50504(U)
Insurer prevailed
The insurer obtained default vacatur under CPLR 317 based on delayed actual notice and a potential workers' compensation defense. Although it moved under CPLR 5015, CPLR 317 also governed because service through the Department of Financial Services under Insurance Law § 1212 was not personal delivery. The insurer received actual notice after the 30-day answer period under CCA 402 (b), and CPLR 317 required no reasonable excuse. Employee and employment-supervisor affidavits stated that the assignor was acting within the scope of employment when injured, establishing a potentially meritorious defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, vacating the default judgment and extending the insurer's time to answer.
Trial court, Second Department
Apr 1, 2025
2025 NY Slip Op 50412(U)
Split result
A defective notarial signature may be disregarded under CPLR 2001 when no substantial right is prejudiced. The provider opposed summary judgment with an affidavit asserting responses to verification requests, notarized by counsel using the word "February" as a signature. The Civil Court, Kings County, found the notarization defective because the signature did not match the notary's filed oath of office. It nevertheless admitted the affidavit: the insurer challenged its substance in reply, first objected to its form at oral argument, waived that objection and suffered no prejudice. The affidavit raised a factual issue concerning outstanding verification. Under CPLR 3212 (g), the court granted the insurer's motion only to establish timely denials, leaving verification unresolved.
