No-Fault Case Law
Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))
December 13, 2019
The provider's action was untimely because its claim accrued 30 days after the insurer received the bill, a showing the provider did not rebut. The insurer moved to dismiss under CPLR 3211 (a) (5), and the action fell outside the limitations period in CPLR 213 (2). The provider's collateral-estoppel argument failed because the Civil Court order on which it relied denied an insurer motion and was not a conclusive final determination. A remaining contention was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed the order dismissing the complaint on the insurer's statute-of-limitations defense.
Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52045(U))
December 13, 2019
MVAIC's IME nonappearance and outstanding-verification defenses were precluded by its failure to timely deny or request verification. Its submissions showed that it neither denied the claims within 30 days nor timely extended that period under 11 NYCRR 65-3.5 (b), 11 NYCRR 65-3.6 (b), and 11 NYCRR 65-3.8 (a) (1). Following New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., MVAIC remained subject to regulatory deadlines for precludable defenses. Amendment to assert collateral estoppel was also denied because the provider was neither a party to the other proceedings nor then in privity with a party. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of MVAIC's motion.
Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U))
December 13, 2019
The insurer failed to establish that policy limits were exhausted when the provider's claim became complete. Under 11 NYCRR 65-3.15 and Nyack Hosp. v General Motors Acceptance Corp., the insurer therefore lacked entitlement to summary judgment. Although its adjuster denied receipt of one claim, the provider's owner's affidavit raised a presumption of timely mailing and receipt, creating a factual issue. The fee-schedule argument failed because the motion did not seek relief on that ground and offered no supporting evidence. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion and retaining CPLR 3212 (g) findings favoring the provider; exhaustion, receipt, and fee-schedule defenses remained for trial.
Charles Deng Acupuncture, P.C. v MVAIC (2019 NY Slip Op 52049(U))
December 13, 2019
MVAIC established that the provider's first four causes of action were time-barred, but disputed receipt required a hearing on three others. The provider raised no factual issue concerning the three-year limitations period for the first four claims. For the fifth through seventh claims, competing affidavits raised an issue concerning mailing and receipt. Receipt would require dismissal with prejudice as time-barred; nonreceipt would require dismissal without prejudice as premature. MVAIC failed to establish exhaustion when those claims were complete under 11 NYCRR 65-3.15. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant MVAIC summary judgment on the first four causes of action and remitted for a CPLR 2218 hearing and a new determination on the remaining three.
SK Prime Med. Supply v Permanent Gen. Assur. Corp. (2019 NY Slip Op 52052(U))
December 13, 2019
The insurer established effective policy cancellation before the accident by proving proper mailing and timely filing with the DMV. The insurer sought summary judgment dismissing the provider's assigned no-fault claim for lack of coverage after cancellation for nonpayment of the premium. It demonstrated mailing to the insured under Vehicle and Traffic Law § 313 (1) and filing a copy with the Department of Motor Vehicles within 30 days of cancellation's effective date under Vehicle and Traffic Law § 313 (2) (a). Cancellation was effective against the assignor, who was neither the named insured nor a household member, under Vehicle and Traffic Law § 313 (3). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion.
Active Care Med. Supply Corp. v MVAIC (2019 NY Slip Op 52058(U))
December 13, 2019
MVAIC's summary judgment motion based on outstanding verification was denied, and the provider's cross motion for summary judgment was granted. The Appellate Term, Second Department, affirmed the resulting judgment for assigned no-fault benefits for the reasons set forth in Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC.
Beacon Acupuncture, P.C. v Hertz Claim Mgt. (2019 NY Slip Op 52059(U))
December 13, 2019
The insurer established EUO nonappearance for some claims, but its EUO request was untimely for the remaining claims. For services rendered from September 28, 2015 through February 3, 2016, the insurer proved timely mailing of initial and follow-up EUO letters, the provider's nonappearance on both dates, and timely denials on that ground. For the remaining claims, the first scheduling letter was sent more than 30 days after receipt, rendering the request a nullity as to those claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing claims for that service period and affirmed denial of the insurer's cross motion as to the remaining claims.
Island Life Chiropractic Pain Care, PLLC v MVAIC (2019 NY Slip Op 52061(U))
December 13, 2019
A defendant seeking to open an excusable answering default must show a reasonable excuse and a potentially meritorious defense. In this assigned no-fault action, the provider sought a default judgment, while MVAIC cross-moved to open its default and compel acceptance of a late answer. Applying CPLR 5015 (a) (1), the Appellate Term, Second Department, found no improvident exercise of discretion in accepting MVAIC's excuse. MVAIC also showed a potentially meritorious lack-of-coverage defense that the alleged injuries did not arise from an insured incident. The order denying the provider's motion and granting MVAIC's cross motion was affirmed.
Tadros v MVAIC (2019 NY Slip Op 52066(U))
December 13, 2019
The provider failed to show exhaustion of remedies against a known vehicle owner before seeking assigned no-fault benefits from MVAIC. The assignor was a passenger in the vehicle at the time of the accident and knew the owner's identity. Following Hauswirth v American Home Assur. Co., the provider was required to exhaust remedies against that owner before seeking relief from MVAIC, but did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Big Apple Med. Supply, Inc. v Titan & Nationwide (2019 NY Slip Op 52067(U))
December 13, 2019
An insurer establishes an EUO nonappearance defense by showing two duly demanded EUOs, two assignor nonappearances, and a timely denial. In this action for assigned no-fault benefits, the provider challenged summary judgment dismissing its complaint. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, concluded that the insurer established entitlement to summary judgment. Appearance at a duly demanded EUO is a condition precedent to policy liability under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The order granting the insurer's dismissal motion was affirmed; the provider's remaining contention lacked merit.