Noel v Nationwide Ins. Co. of Am., 2019 NY Slip Op 02348 (2d Dept. 2019)
(1) ” The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(3) and CPLR 3212, on the grounds that the motion was premature due to outstanding disclosure. The defendant appeals. “
(2) ” The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assigned his right to no-fault benefits to 10 different medical providers (see Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (cf. Abruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209). “
Abruscato is an interesting case. There, the EIP was sent bills and a causal relationship disclaimer was issued. Often times, we see treatment on a lien based upon a medical necessity denial. Assume that the EIP pays the provider and presents proof of payment, does he or she have a case against the carrier despite the presence of an AOB? My vote is yes, despite the non-existence of a revocation of assignment. We shall see what the Appellate Division says.