No-Fault Case Law
Reyes-Arguelles v Omni Indem. Co. (2013 NY Slip Op 52153(U))
December 17, 2013
The insurer's alternative request for summary judgment was premature because it moved before serving an answer and joining issue. The insurer sought dismissal under CPLR 3211 (a) and, alternatively, CPLR 3212. It identified no subdivision of CPLR 3211 (a), and its papers showed no basis for relief under any subdivision. Under CPLR 3212 (a), summary judgment required joinder of issue; without an answer or treatment of the motion under CPLR 3211 (c), Civil Court lacked power to grant it. The Appellate Term, Second Department, affirmed Civil Court, Kings County's denial of the insurer's motion and expressly passed on no other issue.
Vincent Med. Servs., P.C. v Omni Indem. Co. (2013 NY Slip Op 52157(U))
December 17, 2013
The insurer's alternative request for summary judgment was premature because issue had not been joined before the motion. The insurer moved to dismiss under CPLR 3211 (a) and CPLR 3212 without specifying a subdivision of CPLR 3211 (a), and its papers established no ground for relief under that provision. CPLR 3212 (a) permits summary judgment only after joinder of issue. Because the insurer had not served an answer and Civil Court did not treat the motion under CPLR 3211 (c), summary judgment was unavailable. The Appellate Term, Second Department, reversed Civil Court, Kings County's order and denied the insurer's motion, while expressly passing on no other issue.
Pomona Med. Diagnostics, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 52131(U))
December 13, 2013
Conflicting medical expert opinions raised a triable issue concerning the necessity of the provider's diagnostic tests. The provider sought assigned first-party no-fault benefits for those tests, and the insurer moved for summary judgment dismissing the complaint. Both sides submitted medical expert opinions. The Appellate Term, First Department, affirmed the denial of the insurer's motion because those conflicting opinions sufficed to create a factual issue on medical necessity.
Karina K. Acupuncture P.C. v MVAIC (2013 NY Slip Op 52127(U))
December 13, 2013
MVAIC may request verification to determine whether an assignor is a covered person entitled to no-fault benefits. The provider sought the difference between acupuncture charges and payments under the workers' compensation fee schedule. MVAIC established timely denial based on excessive fees, and the provider raised no triable issue concerning mailing, fee calculation, or tolling of the 30-day payment-or-denial period by a proper verification request. Following New York Hosp. Med. Ctr. of Queens v MVAIC, the coverage verification request was permissible; the provider's remaining challenges were unpreserved. The Appellate Term, First Department, reversed Civil Court, Bronx County's order, insofar as appealed from, and granted MVAIC summary judgment dismissing the complaint.
Karina K. Acupuncture P.C. v MVAIC (2013 NY Slip Op 52128(U))
December 13, 2013
MVAIC's motion for summary judgment dismissing the complaint was granted on appeal. The Appellate Term, First Department, reversed Civil Court, Bronx County's order, insofar as appealed from, denying that motion and directed entry of judgment for MVAIC, relying on the companion appeal decided the same day, No. 13-300, without giving independent reasoning.
American Tr. Ins. Co. v Miranda (2013 NY Slip Op 52277(U))
December 12, 2013
The assignor's two IME nonappearances defeated coverage despite the providers' objection that the insurer's denial was late. The insurer submitted scheduling letters and evidence of its mailroom procedures. The opposing attorney's affirmation supplied no firsthand evidence challenging that proof, and the providers identified no evidentiary basis for further discovery. Applying First Department authority treating IME attendance as a condition precedent, Supreme Court found that the coverage defense survived the 30-day denial deadline. The Supreme Court, New York County, awarded summary judgment against the answering defendants and default judgments against the nonappearing defendants, declaring that neither the assignor nor the assignees could recover benefits for the accident.
J.C. Healing Touch Rehab, P.C. v Access Gen. Ins. Co. (2013 NY Slip Op 52086(U))
December 12, 2013
The provider failed to establish personal jurisdiction over the out-of-state insurer under CCA 404 (a). On renewal of its CPLR 3211 (a) (8) motion, the insurer supplied the previously missing certificate of conformity and an affidavit describing its Georgia offices and absence of New York business, policies, or employees. That evidence made a prima facie jurisdictional showing, shifting the burden to the provider. Counsel's affirmation lacked personal knowledge establishing any qualifying New York City contacts, and the provider did not establish entitlement to jurisdictional discovery. The Appellate Term, Second Department, affirmed the order granting renewal and, upon renewal, dismissing the complaint for lack of personal jurisdiction.
Westchester Med. Ctr. v New S. Ins. Co. (2013 NY Slip Op 52085(U))
December 12, 2013
Conflicting evidence concerning delivery of requested verification prevented summary judgment for the provider. The insurer submitted proof that it had not received the verification, while the provider supplied an affidavit asserting that responsive material had been sent. Those submissions left a material factual issue unresolved in the action for assigned first-party no-fault benefits. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and declined the insurer's request to search the record and grant summary judgment dismissing the complaint.
Interboro Ins. Co. v Perez (2013 NY Slip Op 08347)
December 12, 2013
The insurer failed to establish mailing of EUO scheduling letters and was denied a default judgment declaring no coverage. The Appellate Division, First Department, affirmed denial of the insurer's motion under CPLR 3215 (f) and the order compelling acceptance of two providers' late answers under CPLR 3012 (d). A computer inputting error explained the minimal delay, counsel acted promptly, and there was no history of willful neglect or prejudice. A meritorious defense was unnecessary for that relief, but the providers nevertheless showed insufficient evidence of proper EUO notification. The insurer's affidavit did not establish mailing in accordance with the no-fault regulations, and it supplied no objective proof of mailing.
Reed v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 52076(U))
December 11, 2013
The injured claimant's allegations of coverage, timely accident notice, and unpaid bills stated a cognizable no-fault cause of action. The complaint identified the applicable policy and alleged that it covered the claimant's vehicle and provided no-fault benefits. On the insurer's CPLR 3211 (a) (7) motion, the allegations required liberal construction and acceptance as true to determine whether they fit a cognizable legal theory. They also sufficiently notified the insurer of the transactions to be proved. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the order granting dismissal, and denied the insurer's motion.