No-Fault Decisions, July 2010

Appellate Term, Second Department Jul 29, 2010 2010 NY Slip Op 51350(U) Split result

AVA Acupuncture, P.C. v AutoOne Ins. Co.

The insurer justified corporate financial discovery on fraudulent incorporation, but failed to justify the owner's personal tax and banking records. The provider's untimely objections under CPLR 3122 preserved only privilege and palpable impropriety. Specific eligibility concerns under Mallela supported corporate records, including tax returns under CPLR 3101 (a). The insurer did not show personal returns indispensable or personal banking records material and necessary. Assignment discovery was improper because the insurer had not sought verification or denied on assignment grounds; expert disclosure was not yet compelled under CPLR 3101 (d) (1) (i). The Appellate Term, Second Department, modified the discovery order accordingly and affirmed denial of provider summary judgment as premature under CPLR 3212 (f).

Appellate Term, Second Department Jul 29, 2010 2010 NY Slip Op 51349(U) Insurer prevailed

AR Med. Rehabilitation, P.C. v MVAIC

MVAIC obtained summary judgment because no proof established exhaustion of remedies against the known owner of the vehicle. The provider sought assigned no-fault benefits for an assignor struck by a vehicle whose owner's identity was known to both the provider and the assignor. Following Hauswirth v American Home Assur. Co., the provider had to exhaust remedies against that owner before seeking relief from MVAIC. No proof established that it had done so. The Appellate Term, Second Department, affirmed the order granting MVAIC's motion for summary judgment dismissing the complaint.

Appellate Term, Second Department Jul 29, 2010 2010 NY Slip Op 51348(U) Insurer prevailed

Five Boro Psychological Servs., P.C. v MVAIC

The provider failed to show that it exhausted remedies against the known vehicle owners before seeking benefits from MVAIC. The provider and its assignor knew the identities of the owners of the vehicles involved in the accident. Following Hauswirth v American Home Assur. Co., the provider, as assignee, had to exhaust remedies against those owners before seeking relief from MVAIC. The record did not reflect that it had done so. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment in its action to recover assigned no-fault benefits.

Appellate Term, Second Department Jul 29, 2010 2010 NY Slip Op 51356(U) Insurer prevailed

Kew Gardens Med & Rehab, P.C. v Travelers Ins. Co.

The provider's claimed change of counsel did not invalidate service where no filed substitution or insurer knowledge of the change was shown. After years of inactivity, the insurer served a 90-day demand under CPLR 3216 (b) on counsel of record. The provider did not respond or oppose the ensuing dismissal motion. Seeking vacatur, it asserted that replacement counsel had taken over four years before the demand. No proof showed filing of a substitution under CPLR 321 (b) before service, and no communication or other basis established the insurer's awareness of the change. Service on existing counsel of record was proper. The Appellate Term, Second Department, affirmed denial of vacatur, leaving the default dismissal for failure to prosecute in place.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51338(U) Split result

Points of Health Acupuncture, P.C. v Lancer Ins. Co.

⚠ Overruled by Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

The insurer proved EUO nonappearance and timely notices for three claims, but failed to establish tolling for the remaining claims. Counsel's affirmation and a no-fault specialist's affidavit supported dismissal of three claims under 11 NYCRR 65-1.1. Delay letters requesting no verification did not toll the 30-day period, and other verification requests lacked timely-mailing proof. Nevertheless, outstanding discovery on fraudulent incorporation under 11 NYCRR 65-3.16 (a) (12) made provider summary judgment premature under CPLR 3212 (f). The Appellate Term, Second Department, reversed, dismissed the three supported claims, denied the provider's cross motion, compelled discovery except privileged or palpably improper requests, and remitted the remaining claims; a dissent found insufficient personal-knowledge proof of nonappearance.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51334(U) Provider prevailed

Infinity Health Prods., Ltd. v Progressive Ins. Co.

The insurer failed to prove timely mailing of EUO notices and therefore failed to avoid preclusion of its assignor-nonappearance defense. Opposing the provider's summary judgment motion, the insurer asserted timely denial based on the assignor's failure to attend EUOs. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), it had to establish timely initial and follow-up requests. Without timely-mailing proof, it did not show tolling of the 30-day determination period under 11 NYCRR 65-3.8 or timely denials. The Appellate Term, Second Department, affirmed the provider's judgment; a dissent would have denied summary judgment, finding certified nonappearance transcripts sufficient and objecting to appellate consideration of mailing issues not raised by the provider.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51332(U) Insurer prevailed

Alfa Med. Supplies, Inc. v GEICO Gen. Ins. Co.

The insurer's unrebutted peer reviews defeated the provider's summary judgment motion on the three medical-supply claims under review. The provider's employee affidavit established admissibility of the supporting documents under CPLR 4518. Submission of statutory claim forms stating the fact and amount of loss, together with overdue payment, established a prima facie case under Insurance Law § 5102 (a). The insurer nevertheless showed timely denials and supplied affirmed peer reviews with factual bases and medical rationales for finding the supplies unnecessary. The Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment on those three claims, and denied those branches of the provider's motion; a separate concurrence agreed only with the result and disputed propositions in cited authorities.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51333(U) Insurer prevailed

Astoria Wellness Med., P.C. v Progressive Northeastern Ins. Co.

The insurer's motion for summary judgment dismissing acupuncture claims on licensing grounds was granted, and that ruling was affirmed. The provider's sole physician owner lacked acupuncture licensing or certification, although a licensed employee performed the services. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion as moot, adopting the reasons in Quality Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51336(U) Insurer prevailed

Yklik, Inc. v GEICO Ins. Co.

The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer reviews finding medical supplies unnecessary. The provider obtained summary judgment in its assigned no-fault action, while the insurer's cross motion to dismiss was denied. The insurer established timely denials and submitted affirmed peer reviews setting out factual bases and medical rationales for lack of medical necessity. The provider's opposing affirmation failed to raise a triable issue because it did not meaningfully refer to the reviewers' conclusions, following Pan Chiropractic, P.C. v Mercury Ins. Co. and Innovative Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint.

Appellate Term, Second Department Jul 22, 2010 2010 NY Slip Op 51339(U) Insurer prevailed

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

The provider's billing-company affiant failed to show personal knowledge needed to establish a business-record foundation. The provider moved for summary judgment in an action for assigned no-fault benefits, relying on an affidavit from the president of its billing company. The affiant did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to establish admissibility of the supporting documents under CPLR 4518. The provider therefore failed to make a prima facie showing of entitlement to judgment. The Appellate Term, Second Department, affirmed the denial of the provider's motion and expressly reached no other issue.

Appellate Term, First Department Jul 21, 2010 2010 NY Slip Op 51292(U) Insurer prevailed

Marina v Praetorian Ins. Co.

The insurer established mailing of IME notices and the assignors' nonappearances, defeating coverage for the provider's claims. In the assigned no-fault action, the provider failed to raise a triable issue concerning either the reasonableness of the IME requests or the assignors' failure to attend. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Inwood Hill Med. v General Assurance Co., compliance was a condition precedent to coverage. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51247(U) Provider prevailed

Kipor Medicine, P.C. v GEICO

The insurer failed to support consolidation, amendment of its answer, and further discovery after the notice of trial. The Appellate Term, Second Department, reversed and denied the insurer's motion. Under CPLR 602 (a), the insurer showed no common questions among the actions; under CPLR 3025 (b), it offered no evidence of merit for its proposed defenses. The provider could wind up its affairs and recover for services predating its sole shareholder's license surrender, and the insurer did not demonstrate fraudulent incorporation under Mallela. Further discovery lacked an affidavit showing unusual or unanticipated post-notice conditions under 22 NYCRR 208.17 (d). A separate concurrence agreed with the result based on the insurer's delay but disagreed with the majority's reasoning.

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51250(U) Insurer prevailed

Five Boro Psychological Servs., P.C. v MVAIC

Timely filing of a notice of intention to claim is a condition precedent to recovering no-fault benefits from MVAIC. The provider moved for summary judgment, and MVAIC opposed on the ground that a timely notice had never been filed. Under Insurance Law § 5208 (a) (1) and (3), timely filing must be established to show that the claimant is a covered person entitled to benefits under Insurance Law § 5221 (b) (2). MVAIC's failure to deny the provider's claim timely did not excuse that statutory prerequisite. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion.

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51244(U) Provider prevailed

Stoessel v Allstate Ins. Co.

The insurer failed to rebut presumed receipt of a commercial claim or establish grounds to vacate its default judgment. The Appellate Term, Second Department, affirmed denial of vacatur in the provider's action for assigned no-fault benefits. The professional corporation, whose principal office was in New York State, properly commenced the action under CCA 1801-A (a) and 1809-A (a). The commercial claims index card showed proper service, and the insurer's conclusory denial did not overcome the CCA 1803-A presumption of receipt where ordinary mail was not returned as undeliverable within 21 days. The insurer also failed to demonstrate a reasonable excuse and meritorious defense under CPLR 5015 (a).

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51245(U) Provider prevailed

Stoessel v Allstate Ins. Co.

The insurer's motion to vacate a commercial claims no-fault default judgment was denied, and the denial was affirmed on appeal. The insurer challenged subject matter jurisdiction and sought relief under CPLR 317 or 5015; the Civil Court denied the motion as untimely. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2009-576 Q C.

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51246(U) Insurer prevailed

Hillcrest Radiology Assoc. v State Farm Mut. Auto. Ins. Co.

The insurer's affirmed peer review established lack of medical necessity, and the provider failed to rebut that showing. In the provider's action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint. The provider did not dispute that the claim had been timely denied on medical necessity grounds. The peer review supplied a factual basis and medical rationale for concluding that the services were not medically necessary. The Appellate Term, Second Department, affirmed the order granting the insurer's motion, finding the provider's remaining contentions without merit.

Appellate Term, Second Department Jul 16, 2010 2010 NY Slip Op 51252(U) Insurer prevailed

Neomy Med., P.C. v GEICO Ins. Co.

The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule. The provider had obtained summary judgment after the Civil Court found that the insurer failed to establish timely mailing. The Appellate Term, Second Department, reversed, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint. An affirmed peer review supplied a factual basis and medical rationale for denying one claim as medically unnecessary. The insurer also established entitlement to dismissal of the unpaid portions of other bills because they exceeded the workers' compensation fee schedule. The provider failed to rebut either showing; its remaining arguments were unpreserved or lacked merit.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51177(U) Split result

Raz Acupuncture, P.C. v AIG Indem. Ins. Co.

An insurer may use the workers' compensation acupuncture fee schedule for chiropractors to reimburse a licensed acupuncturist. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on the initial-visit claim, for which its evidence was insufficient, but affirmed dismissal of the remaining claims. Those sessions were paid at the rate for medical doctors, higher than the chiropractic rate permitted under Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider failed to show the schedules were not established under Workers' Compensation Law § 13 and 11 NYCRR 68.1 (a). Its cross motion remained denied because it omitted claim forms, and the insurer's submission of them supplied no CPLR 4518 foundation; acknowledgment of receipt did not concede admissibility.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51176(U) Insurer prevailed

Proscan Imaging, P.C. v Travelers Indem. Co.

The provider's action was premature because it did not show that it supplied outstanding verification before commencing suit. The insurer submitted affidavits supporting timely mailing of its initial and follow-up verification requests, and the provider admitted receipt. The provider did not demonstrate that it furnished the requested verification before commencement, so the insurer's 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint without prejudice to a new action. It reached no other issue.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51178(U) Insurer prevailed

All for Happy Smiles Dental, P.C. v American Tr. Ins. Co.

The denial of the provider's CPLR 7511 petition to vacate a master arbitrator's no-fault award was affirmed. The award upheld denial of assigned no-fault reimbursement. The Appellate Term, Second Department, found the pertinent facts identical to those in 563 Grand Med., P.C. v Nationwide Ins. Co., Avanessov v State-Wide Ins. Co., and SP Med., P.C. v Country-Wide Ins. Co., and relied on their reasoning.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51179(U) Insurer prevailed

D & R Med. Supply, Inc. v Safeco Ins. Co.

The provider's summary judgment motion was denied on appeal because its billing affidavit failed to establish admissible business records. The insurer challenged the billing manager's affidavit both below and on appeal as insufficient to establish admissibility of the attached documents under CPLR 4518. The Appellate Term, Second Department, agreed and reversed the order granting the provider's motion.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51185(U) Insurer prevailed

Mani Med., P.C. v American Tr. Ins. Co.

The insurer established an excuse for its default and an arguably meritorious workers' compensation defense warranting vacatur. The provider had obtained summary judgment on default and a resulting judgment. The Appellate Term, Second Department, affirmed the order vacating both under CPLR 5015 (a) (1) and restoring the provider's motion to the calendar. The insurer's affirmations established a reasonable excuse for failing to oppose summary judgment. Its showing that the assignor was acting as an employee at the time of the accident required the Workers' Compensation Board to determine in the first instance whether workers' compensation benefits were available. The insurer's vacatur motion was also timely.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51181(U) Insurer prevailed

Infinity Health Prods. Ltd. v New York Cent. Mut. Fire Ins. Co.

An insurer that paid a judgment later set aside may obtain restitution under CPLR 5015 (d). After the provider's satisfied judgment was vacated, the action was placed on the trial calendar and subsequently dismissed for the provider's nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as reviewed, directing repayment upon renewal and requiring the provider to move to restore the action rather than restoring it sua sponte. Restitution was a proper exercise of discretion. The appeal from the direction to pay half the insurer's trial expert costs was dismissed because that relief had not been requested on notice and was not appealable as of right under CCA 1702 (a) (2) and CPLR 2211.

Appellate Term, Second Department Jul 7, 2010 2010 NY Slip Op 51183(U) Provider prevailed

Eagle Surgical Supply, Inc. v Unitrin Advantage Ins. Co.

The insurer failed to establish timely mailing of its denial and that its medical necessity defense was not precluded. The insurer sought summary judgment dismissing the provider's claim for equipment on the ground that it was not medically necessary. An employee of another insurance company supplied an affidavit, but it did not describe the defendant insurer's standard office practices and procedures for ensuring proper addressing and mailing. That omission left the insurer without proof of timely denial. The Appellate Term, Second Department, reversed the order granting summary judgment and denied the insurer's motion; it did not reach the provider's other contentions.

Trial court, Second Department Jul 27, 2010 2010 NY Slip Op 20308 Provider prevailed

John Giugliano, DC, P.C. v Merchants Mut. Ins. Co.

⚠ Not followed by Willets Point Chiropractic P.C. v Allstate Ins. (2012 NY Slip Op 51614(U))

The chiropractor established that procedures absent from the chiropractic fee schedule were properly billed under surgical CPT codes. After trial, the Civil Court, Kings County, entered judgment for the provider under the New York Workers' Compensation Medical Fee Schedule. The claims involved spinal manipulation under anesthesia and closed treatment of a mandibular fracture with manipulation. The provider rebutted the insurer's testimony that a chiropractor could not use the surgical schedule, explaining that the procedures were not listed in the chiropractic schedule. For an unscheduled reimbursable service, the provider may establish a fee consistent with scheduled comparable procedures, subject to insurer review. The court also allowed co-surgeon billing because the insurer offered no contrary proof concerning that classification.

Trial court, Second Department Jul 15, 2010 2010 NY Slip Op 20285 Provider prevailed

Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co.

⚠ Not followed by Alsaad Med., P.C. v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op50532(U))

An insurer may not obtain summary judgment for EUO nonappearance based on a demand for advance production of corporate and financial records. The District Court, Nassau County, denied the insurer's motion after the provider failed to attend two EUOs or furnish ownership, tax, and other records demanded for production a week before the EUOs. The court read 11 NYCRR 65-1.1 and 11 NYCRR 65-3.5 as authorizing oral examination and claim verification, rather than unrestricted discovery into a potential Mallela defense. The document demand amounted to pre-action discovery governed by CPLR 3102 (c) and rendered the EUO demand improper. The court expressly preserved the insurer's ability to prove its pleaded Mallela defense under 11 NYCRR 65-3.16 (a) (12) and obtain proper discovery in the action.