Appellate Division, Third Department
Dec 12, 2024
2024 NY Slip Op 06268
Insurer prevailed
Workers' compensation remains primary to no-fault benefits even when the employer lacks workers' compensation insurance. The Appellate Division, Third Department, affirmed summary judgment dismissing the injured claimant's complaint and denial of the claimant's cross motion. The claimant had not sought workers' compensation before pursuing no-fault benefits for basic economic loss. Under Insurance Law § 5102 (b) (2) and 11 NYCRR 65-3.16 (a) (9), workers' compensation benefits recovered or recoverable reduce no-fault payments. Lack of employer coverage changes the potential payment source, with the Uninsured Employers' Fund acting as surety under Workers' Compensation Law § 26-a, rather than permitting an election contrary to Workers' Compensation Law § 11. Eligibility must first be determined by the Workers' Compensation Board.
Appellate Division, Third Department
Jun 15, 2023
2023 NY Slip Op 03274
Split result
The injured claimant's summary judgment motion was premature because it was made before issue was joined. After settling with two liability insurers, the claimant sought a declaration requiring further additional personal injury protection benefits and barring a lien on benefits already paid. The trial court treated an order to show cause filed two days after commencement as a summary judgment motion, denied relief on the merits, and dismissed the complaint. The insurer's answer before the return date did not cure prematurity. The Appellate Division, Third Department, modified the order to reinstate the complaint and otherwise affirmed, remitting for further proceedings and leaving subrogation, allocation of the settlement to pain and suffering, and whether the claimant had been made whole unresolved.
Appellate Division, Third Department
May 14, 2020
2020 NY Slip Op 02845
Provider prevailed
The claimant's one-week answer delay was excused because the default was not willful, no prejudice appeared, and a meritorious defense was offered. The insurer sought declaratory relief and investigation costs after denying benefits. Service under CPLR 308 (2) was valid, and default notice complied with CPLR 3215 (g). Renewal was improperly subjected to the 30-day reargument limit in CPLR 2221 (d) (3). Newly obtained medical records justified renewal under CPLR 2221 (e); nonconsensual e-filing did not warrant rejecting hard-copy opposition under 22 NYCRR 202.5-b (b) (2) (i). The Appellate Division, Third Department, reversed, denied the insurer's default motion, granted renewal/vacatur, stayed the preliminary injunction, and remitted for consideration of the claimant's opposition.
Appellate Division, Third Department
May 30, 2019
2019 NY Slip Op 04242
Insurer prevailed
The insurer properly denied continuing lost wage benefits because the claimant was terminated for reasons unrelated to the injuries. Insurance Law § 5102 (a) (2) covers earnings from work the claimant would have performed absent injury; 11 NYCRR 65-3.16 (b) (6) continues benefits when discharge occurs solely because injury prevents work. Employer documentation showed termination for failure to comply with leave requirements, including failure to extend leave or provide status updates. The insurer could rely on that documentation, and no record evidence showed deliberate circumvention of its benefit obligation. Deferring to the nonjury trial findings, the Appellate Division, Third Department, affirmed the order and judgment dismissing the complaint. Any wrongful termination claim against the employer or leave administrator remained separate.
Appellate Division, Third Department
Feb 1, 2018
2018 NY Slip Op 00584
Provider prevailed
An insurer must accept proof of claim on a nonprescribed form containing substantially the same information as the prescribed form. The Appellate Division, Third Department, affirmed denial of the insurer's summary judgment motion on the remaining verification issue after remittal from the Court of Appeals. The injured claimant sought wages from an offered job not yet started. Although the insurer lacked a completed NF-6 employer's report, counsel had supplied the employment application and signed offer detailing the work. The insurer also contacted the intended employer for an interview that could have supplied remaining information. Under 11 NYCRR 65-3.5 (f), 65-3.8 (a) (1), and 65-3.8 (b) (3), triable questions remained whether the wage claim was properly verified.
Appellate Division, Third Department
Dec 14, 2017
2017 NY Slip Op 08774
Split result
An insurer's alleged consumer-oriented practice of pressuring IME physicians to justify denials stated a General Business Law § 349 claim. The Appellate Division, Third Department, modified the order to reinstate that claim at the pleading stage, finding alleged consumer-oriented deception and resulting injury. Emotional distress and punitive damages remained dismissed: no duty separate from the contract or independent tort was alleged. Bi-Economy and Panasia did not abrogate existing limits on contract damages; emotional distress foreseeability was not reached. Challenges to dismissal of the General Business Law § 350 and intentional infliction of emotional distress claims were abandoned. Other consequential damages survived, and a partial concurrence and dissent would have allowed contractual emotional distress damages.
