No-Fault Case Law
Brooklyn Chiropractic & Sports Therapy, P.C. v Unitrin Direct Auto Ins. Co. (2017 NY Slip Op 50494(U))
April 13, 2017
The insurer was improperly denied an adjournment to present its sole medical expert on the only contested trial issue. Medical necessity was the sole issue at the nonjury trial. The insurer advised that its expert could not testify on Mondays without eight weeks' notice, but the continued trial was scheduled for another Monday and a further adjournment was refused. The expert's testimony was critical, the record showed no effort merely to delay trial, and the insurer was willing to attempt a Monday appearance with sufficient notice. The Appellate Term, Second Department, reversed the provider's judgment and remitted for a new trial, finding an improvident exercise of discretion in refusing an adjournment or suitable rescheduling.
Excel Surgery Ctr., L.L.C. v Travelers Prop. Cas. Ins. Co. (2017 NY Slip Op 50493(U))
April 13, 2017
The provider's sole appellate argument was unpreserved because it had not been raised in the District Court. The insurer had moved for summary judgment dismissing the assigned no-fault action as premature on the ground that the provider had not supplied all requested verification. The District Court granted that motion. The Appellate Term, Second Department, affirmed the order based on the provider's failure to preserve the only issue it raised on appeal.
Gentle Care Med. Servs., P.C. v Country Wide Ins. Co. (2017 NY Slip Op 50488(U))
April 12, 2017
The insurer obtained vacatur and dismissal based on an unchallenged general release withdrawing the provider's pending no-fault claims. Civil Court had granted the provider summary judgment after rejecting the insurer's combined cross motion and opposition as one business day late. Seeking vacatur, the insurer submitted a release executed by the provider's sole officer and shareholder before the provider's motion, releasing pending claims against any insurer. The provider did not contest its validity, authenticity or applicability. Applying Woodson v Mendon Leasing Corp., the Appellate Term, Second Department, reversed in the interests of substantial justice, vacated the prior order, denied the provider's motion and granted the insurer's cross motion, also citing the companion appeal decided the same day, No. 2015-1217 K C.
Gentle Care Med. Servs., P.C. v Country Wide Ins. Co. (2017 NY Slip Op 50487(U))
April 12, 2017
The insurer obtained renewal and dismissal because an unchallenged release completely barred the provider's no-fault action. Civil Court denied relief on the premise that its prior summary judgment order was entered on default, although the record showed opposition and reply papers. Under CPLR 2221 (e) (2) and (3), renewal requires new facts that would change the determination and reasonable justification for not presenting them earlier. The insurer submitted a release executed by the provider's sole officer and shareholder covering the underlying claims, and counsel stated that counsel had been unaware of it. The Appellate Term, Second Department, reversed, granted renewal and, upon renewal, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Country-Wide Ins. Co. v GEICO Gen. Ins. Co. (2017 NY Slip Op 50460(U))
April 12, 2017
The respondent insurer's loss-transfer award was supported by the evidence and was not arbitrary and capricious. The petitioning insurer sought confirmation of an earlier arbitration award, while the respondent cross-petitioned to confirm a later award allowing recoupment of paid no-fault benefits. The earlier award expressly permitted the respondent to refile with additional evidence. Any asserted error in considering evidence was not sufficiently gross or palpable to establish fraud or misconduct under CPLR 7511 (b) (1) (i), and did not itself warrant vacatur. The Appellate Term, First Department, affirmed the order denying the petition and granting the respondent's cross-petition to confirm the later award.
Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co. (2017 NY Slip Op 02785)
April 12, 2017
An insurer's fraudulent incorporation defense is not precluded by failure to raise it in a timely denial. The Appellate Division, Second Department, reversed the order granting the provider's CPLR 7511 petition, denied the petition, and reinstated and confirmed the master arbitrator's award vacating an award for acupuncture reimbursement. Although factual review is limited to rationality, 11 NYCRR 65-4.10 (a) (4) permits a master arbitrator to correct substantive legal errors. The arbitrator erroneously refused to consider the insurer's Mallela defense because the insurer had not raised it in a timely denial. The master arbitrator correctly rejected that preclusion ruling, and the resulting vacatur was not irrational.
Maximum Chiropractic, P.C. v Allstate Ins. Co. (2017 NY Slip Op 50552(U))
April 11, 2017
The insurer established a reasonable excuse for its late answer and a potentially meritorious medical-necessity defense. After the insurer failed to answer timely, the provider sought leave to enter a default judgment under CPLR 3215, and the insurer cross-moved to compel acceptance of its previously served untimely answer. The insurer's documents and detailed affidavits sufficiently established nonreceipt of the summons and complaint and a potentially viable defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and compelling acceptance of the insurer's answer.
S & R Med., P.C. v Allstate Prop. & Cas. Ins. Co. (2017 NY Slip Op 50551(U))
April 11, 2017
The provider failed to establish valid service outside New York City, while the insurer failed to justify acceptance of its late answer. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's request to compel acceptance of its untimely answer, but affirmed denial of the provider's default-judgment motion. The insurer essentially conceded that it supplied neither a reasonable excuse nor a meritorious defense. Under New York City Civil Court Act §§ 403 and 404, the provider's service in Suffolk County required a statutory basis for service outside the city. Neither its complaint nor its motion papers alleged facts supporting such jurisdiction, so it failed to establish entitlement to a default judgment under CPLR 3215.
NY Spine Physical Therapy, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 50434(U))
April 7, 2017
The provider's trial judgment was affirmed on the insurer's challenge to denial of an adjournment to secure expert witnesses. The Appellate Term, Second Department, relied on the reasons stated in Middle Village Chiropractic v GEICO Gen. Ins. Co., the companion appeal decided the same day, No. 2015-2880 Q C.
Middle Vil. Chiropractic v Geico Gen. Ins. Co. (2017 NY Slip Op 50433(U))
April 7, 2017
The provider's trial judgment was affirmed on the insurer's challenge to denial of an adjournment to secure expert witnesses. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2015-2880 Q C.