4 decisions · 1 Appellate Term · 3 trial courts
Issues this month: Timeliness and preclusion 2 IME no-show 1 Defaults and vacatur 1 Jurisdiction and service 1 Medical necessity 1 Fee schedule 1
The insurer's summary judgment motion based on the assignor's IME nonappearance was denied for insufficient proof of timely scheduling-letter mailing. The Appellate Term, Second Department, affirmed because the insurer's supporting papers failed to establish timely mailing in accordance with the standard practice and procedure of the office that mailed the letters, without detailing the defects in that proof.
An insurer may not recover paid no-fault benefits for undelivered supplies when it failed to timely deny the claim for billing fraud. The insurer partially paid the provider and denied the balance on fee-schedule grounds without seeking verification. The assignor later testified at an EUO that the supplies were never received. Applying 11 NYCRR 65-3.8 (a) (1) and Fair Price Med. Supply Corp. v Travelers Indem. Co., the court held that a reimbursement action would evade the no-fault claim deadlines. The District Court, Nassau County, denied the insurer's default-judgment motion and dismissed the action for failure to state a claim, without precluding fraud reporting or criminal restitution under Penal Law § 60.27.
Service on the Superintendent of Insurance in Albany confers personal jurisdiction over consenting insurers in Buffalo City Court. Two providers served their assigned no-fault complaints through the Superintendent under Insurance Law § 1212. The insurers argued that service outside Erie County and adjoining counties violated the territorial limits of New York Constitution, article VI, § 1 (c). The County Court, Erie County, held that the insurers' required powers of attorney constituted advance consent to that service and contractually waived the territorial restriction. Insurance Law § 1212 (b) deems such service made within any state court's territorial jurisdiction. The court reversed both dismissal orders and remanded the actions, allowing the providers to proceed.
The physician's affirmation authenticated the electronic signature on the peer review, supporting the medical-necessity denial. The physician stated that only the physician could apply the signature and that its application affirmed the report under penalty of perjury. The Civil Court, Kings County, deemed the report admissible under CPLR 2106 and granted the insurer summary judgment dismissing the separate medical-necessity claim because the provider raised no factual issue. The provider obtained summary judgment on the unpaid fee-schedule balance because the insurer's affidavit did not explain its application of the fees under 11 NYCRR part 68. Errors in the insurer's attorney affirmation did not defeat its cross motion, which was supported by an employee affidavit and documents.
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