Trial court, Second Department
Jun 3, 2019
2019 NY Slip Op 50862(U)
Insurer prevailed
The master arbitrator's affirmance of a policy-exhaustion denial was rational despite conflicting appellate authority. The provider argued that exhaustion could not defeat its claim because the policy remained unexhausted when the insurer earlier denied the claim in good faith. Both arbitrators considered the split between the First and Second Departments concerning exhaustion and payment priority, and followed Harmonic Physical Therapy, P.C. v Praetorian Ins. Co. The District Court, Nassau County, found that choice rational and denied the provider's vacatur application under CPLR 7511 (b) (1) (iii). Judicial review did not permit vacatur for an asserted substantive legal error unless the award was so irrational as to require it. The court confirmed the master arbitration award under CPLR 7511 (e).
Trial court, Second Department
May 10, 2019
2019 NY Slip Op 29138
An EUO deponent's reimbursement for lost earnings turns on the actual monetary loss caused by attendance. The District Court, Nassau County, denied both sides' summary judgment motions under CPLR 3212 in an action seeking additional compensation under 11 NYCRR 65-3.5 (e). The provider's owner sought to include income beyond wages shown on a tax return. The owner's conclusory affidavit did not establish earnings lost through absence from the businesses, while the insurer offered no probative evidence that the disputed income was solely rental income or unaffected by attendance. Neither side established the businesses' activities or the financial consequences of the absence. Passivity of assets alone did not determine compensability.
Trial court, Second Department
Jul 16, 2018
2018 NY Slip Op 28220
Split result
A provider owner seeking EUO lost earnings was protected from a second deposition, with the insurer allowed interrogatories. The owner brought a plenary action for the unpaid balance of earnings lost attending an EUO concerning the provider's no-fault claims. The District Court, Nassau County, rejected the contention that the insurer waived discovery by not addressing earnings at that EUO. Under 11 NYCRR 65-3.5 (e), reimbursement need not be agreed upon beforehand, and CPLR 3101 (a) entitled the insurer to relevant discovery in the new action. Nevertheless, another deposition would diminish the recovery the regulation protects. The court granted a protective order under CPLR 3103 (a), while permitting interrogatories under CPLR 3130.
Trial court, Second Department
Jun 21, 2017
2017 NY Slip Op 50829(U)
Insurer prevailed
The injured claimant lacked standing to recover chiropractic expenses after assigning the right to payment to the treating provider. The District Court, Nassau County, granted the insurer's motion under CPLR 3212 and dismissed the action. The signed assignment clearly transferred all rights, privileges and remedies to payment for the provider's services. Following Lopes v Liberty Mutual Insurance Company and 11 NYCRR 65-3.11 (a), the assignment required payment directly to the provider. The insurer established the assignment, while the claimant's opposition failed to address standing. Counsel's affirmation, without an affidavit from the claimant, did not raise a triable issue.
Trial court, Second Department
Mar 1, 2017
2017 NY Slip Op 27057
Provider prevailed
The insurer's postjudgment motion based on policy exhaustion was denied because it failed to prove that pleaded defense at trial. After a provider obtained a judgment following a trial de novo, the insurer sought to stay execution, reduce the judgment to zero, and obtain satisfaction entries. The District Court, Nassau County, denied the motion in its entirety. Under CPLR 3018 (b), the insurer bore the burden of pleading and proving exhaustion. It pleaded the defense and knew before trial that the limits had been exceeded, but presented no evidence of exhaustion at trial. Cases allowing postjudgment relief after summary judgment were distinguishable because those insurers lacked a full and fair opportunity to contest exhaustion.
Trial court, Second Department
Nov 9, 2015
2015 NY Slip Op 51620(U)
The insurer's summary judgment motion based on collateral estoppel was granted only to the extent of directing a conference. A default declaratory judgment found the accident intentional and uncovered, but the court lacked information about the status of the separate default motion against the assignor. The District Court directed the parties to appear for a conference without explaining why it limited relief to that direction.
