No-Fault Case Law
Gl Acupuncture, P.C. v Maya Assur. Co. (2016 NY Slip Op 50310(U))
March 11, 2016
The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices. In the provider's assigned no-fault action, the insurer obtained summary judgment dismissing the complaint on an IME nonappearance defense. Its supporting affidavit did not sufficiently describe a standard office practice or procedure ensuring that scheduling letters were properly addressed and mailed. Without proof of proper scheduling, the insurer could not demonstrate that the assignor failed to attend duly scheduled IMEs under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, reversed the order and denied the insurer's motion, allowing the provider's claims to proceed.
Atlantic Radiology, P.C. v Maya Assur. Co. (2016 NY Slip Op 50316(U))
March 11, 2016
The insurer failed to prove timely denial mailing because its adjuster's affidavit contradicted the stated employment timeline. The adjuster asserted personal preparation and mailing of the denial in May 2012, but also stated that employment as the insurer's claims adjuster began in July 2012. The affidavit therefore had no probative value. In the provider's assigned no-fault action, the insurer consequently failed to establish that its lack-of-medical-necessity defense escaped preclusion under Presbyterian Hosp. in City of NY v Maryland Cas. Co. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion; it did not address the provider's prima facie showing because the insurer raised no appellate issue concerning it.
BAB Nuclear Radiology, P.C. v Mercury Cas. Co. (2016 NY Slip Op 50318(U))
March 11, 2016
The insurer's summary judgment motion based on late claim submission was denied, and that denial was affirmed. The Appellate Term, Second Department, stated that the provider's billing supervisor's affidavit raised a triable issue as to compliance with the 45-day claim submission requirement in 11 NYCRR 65-1.1. The insurer therefore failed to establish late submission as a matter of law.
Contemporary Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 50464(U))
March 7, 2016
The insurer failed to establish proper and timely mailing of the EUO notices and denial forms supporting its nonappearance defense. The provider sued for assigned first-party no-fault benefits, and the insurer sought summary judgment based on the assignor's alleged failure to appear for duly scheduled EUOs. The Appellate Term, Second Department, found the insurer's showing insufficient, including its proof of mailing, under Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. and St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.
Utopia Equip., Inc. v Maya Assur. Co. (2016 NY Slip Op 50463(U))
March 3, 2016
The provider's renewal motion failed because a later decision did not constitute a change in law altering the prior determination. The provider sought leave to renew and reargue its opposition to the insurer's earlier summary judgment motion dismissing an assigned no-fault action. It relied on Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., decided after the earlier motion. The Appellate Term, Second Department, found no qualifying change in law under CPLR 2221 (e) (2) and affirmed the denial of renewal. It dismissed the appeal from the denial of reargument because that ruling was not appealable. The insurer prevailed, and the prior determination remained undisturbed.
New Millennium Med. Imaging, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50259(U))
March 1, 2016
The insurer's conflicting accident dates raised a factual issue as to whether a default declaratory judgment barred the provider's claim. The provider's complaint concerned a March 17, 2012 accident, while the Supreme Court judgment declared no duty to pay claims arising from an April 2, 2012 collision because of IME nonappearance. The insurer's own moving papers referred to both dates. On its CPLR 3212 motion, it therefore failed to establish that the no-fault claim arose from the same transaction addressed in the declaratory judgment, as required for res judicata. An assignment form first submitted in reply was not considered. The Appellate Term, Second Department, affirmed the order denying the insurer summary judgment dismissing the complaint.
Gaetane Physical Therapy, P.C. v Kemper Auto & Home Ins. Co. (2016 NY Slip Op 50255(U))
March 1, 2016
A provider's restoration motion failed because counsel did not satisfactorily explain the witness's unavailability for trial. The action was marked off the trial calendar, and the provider moved to restore it five days later. Under 22 NYCRR 208.14 (c), a motion made within one year requires an affidavit from a person with firsthand knowledge explaining why the action was stricken and showing present readiness for trial. Counsel's bare assertion did not identify the witness or explain the unavailability. The Appellate Term, Second Department, affirmed denial, correcting the Civil Court's erroneous reliance on CPLR 3404, which applies only in Supreme or County Court, and expressly declining to reach the remaining contentions.
Renelique v National Liab. & Fire Ins. Co. (2016 NY Slip Op 50254(U))
March 1, 2016
The insurer raised a factual issue over fraudulent policy procurement but failed to establish material misrepresentation as a matter of law. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's alleged use of a false residence address to obtain lower premiums. The insurer's opposition established timely mailing of its denial and raised a triable issue about the address, defeating the provider's motion without a determination of the provider's prima facie case. Its own cross motion failed because admissible proof did not eliminate factual issues concerning material misrepresentations. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed.
Great Health Care Chiropractic, P.C. v Infinity Group (2016 NY Slip Op 50257(U))
March 1, 2016
The insurer failed to establish valid cancellation of a Pennsylvania policy because its litigation specialist's affidavit was missing. The insurer sought summary judgment dismissing the provider's assigned no-fault action based on cancellation for nonpayment of premiums. Although the motion purported to include the specialist's affidavit, only defense counsel's affirmation and accompanying documents were submitted. Without the affidavit, the insurer failed to demonstrate full compliance with Pennsylvania's cancellation requirements and did not establish prima facie entitlement to dismissal. The Appellate Term, Second Department, affirmed the order denying the insurer's motion and declined the provider's request to search the record and award it summary judgment.
IMA Acupuncture, P.C. v Hertz Co. (2016 NY Slip Op 50258(U))
March 1, 2016
The provider's no-fault action was barred by a default declaratory judgment establishing that the insurer owed no payment for the accident. The insurer initially cross-moved for summary judgment on an EUO nonappearance defense and raised res judicata in reply after obtaining the declaratory judgment. The defense could not have been pleaded in the answer or asserted in the initial motion because the declaratory action and judgment arose later. Taking judicial notice of the undisputed court records, the Appellate Term, Second Department, concluded that recovery would impair rights established by the declaratory judgment. It reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.