Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50836(U)
Insurer prevailed
An insurer may seek business records during claim verification to determine whether a provider satisfies licensing requirements. The provider challenged dismissal for failing to supply management agreements, W-2 forms, bank records, and leases. The Appellate Term, Second Department, found the requests proper under 11 NYCRR 65-3.16 (a) (1) and Mallela. Denial of the insurer's summary judgment motion in a declaratory judgment action had no collateral estoppel effect because it was not a final merits determination. The record did not show error in rejecting the provider's amended opposition as an improper surreply, or that considering it would change the result. The court affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50839(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint for the reasons stated in the companion appeal decided the same day, No. 2023-1091 K C.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50838(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint for the reasons stated in the companion appeal decided the same day, No. 2023-1091 K C.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50837(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint for the reasons stated in the companion appeal decided the same day, No. 2023-1091 K C.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50835(U)
Provider prevailed
An appellate undertaking under CPLR 5519 does not stop no-fault interest from accruing until the judgment is satisfied. After unsuccessfully seeking to vacate a default judgment, the insurer deposited an undertaking equal to the judgment amount and sought to compel the provider to recover it from the Department of Finance. The Appellate Term, Second Department, rejected the insurer's assertions that the deposit tolled interest, satisfied its debt, or placed the burden of recovering the undertaking on the provider. Interest continued under 11 NYCRR 65-3.9 (a), making the undertaking insufficient. The amended order, insofar as appealed from, was reversed, relief under CPLR 2606, 2607 and 8010 was denied, and the sua sponte direction to provide a satisfaction of judgment was vacated.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50831(U)
Insurer prevailed
The insurer established timely mailing of EUO notices, the provider's nonappearance, and timely, proper denials after the last EUO. In the provider's action for assigned no-fault benefits, the insurer demonstrated timely mailing of initial and follow-up scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and 11 NYCRR 65-3.8 (l). Its proof also established each nonappearance and proper denials following the last scheduled EUO under Quality Health Supply Corp. v Nationwide Ins. The provider raised no triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross motion, and recalled and vacated its prior decision and order.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50830(U)
Insurer prevailed
The insurer established timely EUO requests, the provider's nonappearance at each scheduled EUO, and timely, proper denials. The initial scheduling letter was mailed before receipt of the claims, and timely follow-up requests after each nonappearance tolled the insurer's time to pay or deny. The insurer then denied the claims following the last scheduled EUO, as addressed in Quality Health Supply Corp. v Nationwide Ins. The provider raised no triable issue in response. The Appellate Term, Second Department, reversed the order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion. It also recalled and vacated its prior decision and order.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50829(U)
Insurer prevailed
The insurer was granted summary judgment dismissing the first through fifth causes of action based on the provider's EUO nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's corresponding cross-motion branches. It relied on the companion appeal decided the same day, No. 2021-478 K C, and recalled and vacated its prior decision and order.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50845(U)
Split result
The insurer's verification denial, issued more than 150 days after its initial request, was a nullity, making the action premature. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the insurer's cross motion to dismiss with prejudice, and, upon searching the record, dismissed without prejudice under Chapa Prods. Corp. v MVAIC. Requests for business records to determine licensing eligibility were proper under 11 NYCRR 65-3.16 (a) (1) and Mallela. Denial of summary judgment in the insurer's declaratory judgment action had no preclusive effect because it was not a final merits determination. The provider also failed to show error in rejecting its amended opposition as a surreply or that considering it would change the outcome.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50841(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint for the reasons stated in the companion appeal decided the same day, No. 2023-1091 K C.
Appellate Term, Second Department
May 16, 2025
2025 NY Slip Op 50840(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's failure to supply verification was upheld on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint for the reasons stated in the companion appeal, Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2023-1091 K C.
Appellate Term, Second Department
May 14, 2025
2025 NY Slip Op 50844(U)
Insurer prevailed
MVAIC established that the assignor was ineligible for no-fault benefits because the assignor owned the vehicle involved in the accident. In seeking summary judgment dismissing the provider's assigned-benefits action, MVAIC submitted the assignor's sworn application identifying the assignor as owner of the vehicle in which the assignor was a passenger. That evidence established that the assignor was not a qualified person under Insurance Law § 5202 (b), applying Vehicle and Traffic Law § 128 and Insurance Law § 5102 (e), and could not qualify as a covered person under Insurance Law § 5221 (b) (2). The provider raised no triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted MVAIC summary judgment and struck the trial-limiting findings, reaching no other issue.
Appellate Term, Second Department
May 2, 2025
2025 NY Slip Op 50825(U)
Split result
The provider's first seven causes of action were barred by a default declaratory judgment, but its eighth and ninth were restored. The Civil Court properly took judicial notice of a Supreme Court judgment conclusively determining that the provider could not recover on seven bills. Res judicata applied even though that judgment was entered on default, because recovery would impair rights established by it. The eighth cause concerned a bill outside the declaratory action, and the ninth sought interest and attorney's fees. The Appellate Term, Second Department, modified the order to vacate dismissal of those two causes and denial as moot of the provider's motion to compel discovery and strike affirmative defenses, and remitted for determination of that motion on the merits.
Appellate Term, Second Department
May 2, 2025
2025 NY Slip Op 50823(U)
Split result
The insurer failed to establish that a default declaratory judgment obtained by another insurer barred the provider's claims. The insurer did not sufficiently support its assertion that the declaratory judgment plaintiff was the proper insurer, preventing proof of a merits adjudication between the same parties. The Appellate Term, Second Department, upheld denial of the insurer's summary judgment cross motion. It modified the order, insofar as appealed from, to strike the CPLR 3212 (g) findings establishing the provider's prima facie case and limiting trial to preclusion because the record did not support them. The insurer's collateral estoppel argument was unpreserved; the court also noted that the provider's default meant the EUO nonappearance issue had not actually been litigated.
Trial court, First Department
May 22, 2025
Split result
An arbitration award may have issue-preclusive effect without judicial confirmation or conversion into a judgment. The Supreme Court, New York County, denied the insurer's CPLR article 75 petition and confirmed the award for the provider, following Allstate Ins. Co. v Toussaint. The insurer opposing preclusion bore the burden of showing that the earlier award had been vacated; no such showing was made. Attorney fees for this proceeding were governed by 11 NYCRR 65-4.10 (j) (4), rather than the arbitration fee limits in 11 NYCRR 65-4.6 (d). The fee request was granted only in part, awarding $345 instead of $850 because the rate and tasks were insufficiently substantiated and time preparing the fee request was not compensable.
Trial court, Second Department
May 2, 2025
2025 NY Slip Op 50706(U)
Insurer prevailed
The insurer established two post-reopening EUO nonappearances and a timely denial despite earlier scheduling during COVID-19 closures. The insurer scheduled four EUOs for the assignor under 11 NYCRR 65-1.1. Applying a totality-of-the-circumstances analysis, the Civil Court, Kings County, treated the March 30 and May 4, 2020 EUOs as nullities because they fell during mandated closures; the May virtual option did not alter that conclusion. Following reopening effective June 12 under 9 NYCRR 8.202.41, the court counted June 17 and July 6 as the first and second nonappearances. The insurer established entitlement to judgment, and the provider offered no evidence or reasonable justification rebutting that showing. The court granted the insurer's summary judgment motion and dismissed the complaint with prejudice.
