No-Fault Decisions, October 2011

Appellate Term, Second Department Oct 28, 2011 2011 NY Slip Op 52018(U) Insurer prevailed

Comfort Supply, Inc. v Clarendon Natl. Ins. Co.

The insurer proved notice of the accident came more than 30 days afterward, and the provider offered no proof excusing the delay. The claims employee established timely mailing of the denial and that the insurer first learned of the accident upon receiving an NF-2. The provider merely speculated that the insurer had earlier notice. Although the denial advised of the opportunity to submit written proof giving clear and reasonable justification under 11 NYCRR 65-1.1 and 11 NYCRR 65-2.4 (b), the provider supplied no evidence it used that opportunity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Appellate Term, Second Department Oct 28, 2011 2011 NY Slip Op 52023(U) Insurer prevailed

Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co.

A no-fault policy is construed to contain the mandatory EUO provision even if the policy omits it. The Civil Court dismissed the provider's assigned-benefits complaint under CPLR 3211 (a) (7) for failure to appear for two EUOs. The provider's sole appellate argument was that the insurer had not proved the policy contained an EUO provision. The mandatory personal injury endorsement under 11 NYCRR 65-1.1 (b) required that provision for the policy covering this accident. Even if omitted, it would be incorporated under Insurance Law § 5103 (h). The Appellate Term, Second Department, rejected the provider's argument and affirmed the judgment dismissing the complaint.

Appellate Term, Second Department Oct 28, 2011 2011 NY Slip Op 21390 Split result

Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co.

The insurer justified bank and tax discovery, but the provider's remaining responses were sufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, to limit compelled disclosure to bank statements, canceled checks, income and payroll tax records, and W-2 or 1099 forms, followed by the owner's deposition. Detailed licensing concerns under Mallela established materiality and special circumstances under CPLR 3101 (a). The court affirmed striking the action from the trial calendar because the certificate of readiness misstated that discovery was complete despite outstanding documents and the owner's failure to appear for a deposition. Considering the insurer's untimely motion was within the Civil Court's discretion under CPLR 2004 and 22 NYCRR 208.17 (c), given the minimal delay.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52016(U) Insurer prevailed

Velen Med. Supply v MVAIC

The provider failed to show compliance with the 24-hour accident-report requirement or an excuse for noncompliance in its claim against MVAIC. The assignor was injured in a hit-and-run accident. Under Insurance Law § 5221 (b) (2), covered-person status requires qualification under Insurance Law § 5202 (b) and compliance with article 52. MVAIC's claims examiner stated that repeated requests produced no proof of an accident report. The provider offered no indication of compliance with Insurance Law § 5208 (a) (2) (A) or that reporting was not reasonably possible under subdivision (B). The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for MVAIC and denial of the provider's cross motion.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52008(U) Provider prevailed

Jamaica Med. Supply, Inc. v MVAIC

Insurance Law § 5214 does not bar a default judgment against MVAIC when it is the named defendant and has defaulted. In the provider's action for assigned no-fault benefits, MVAIC moved to vacate the default judgment entered against it. Its moving papers established neither a reasonable excuse for the default nor a meritorious defense. MVAIC attempted to establish a meritorious defense only in reply, which was not properly before the court and was correctly disregarded under Juseinoski v Board of Educ. of City of NY. The Appellate Term, Second Department, affirmed the order denying vacatur, leaving the provider's default judgment in place.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52010(U) Insurer prevailed

Queens Brooklyn Med. Rehab, P.C. v Allstate Ins. Co.

The insurer established special circumstances warranting disclosure of the provider's tax documents concerning licensing eligibility. In an action for assigned no-fault benefits, the insurer moved to strike the provider's notice of trial, and the Civil Court granted the motion to the extent of compelling production of certain tax documents. The insurer supplied detailed and specific reasons to believe the provider failed to satisfy applicable state and local licensing requirements under 11 NYCRR 65-3.16 (a) (12) and Mallela. Those papers justified disclosure under CPLR 3101. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining the insurer's entitlement to the requested documents.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52012(U) Insurer prevailed

Richmond Radiology, P.C. v American Tr. Ins. Co.

The insurer's investigator established the assignor's EUO nonappearances, supporting summary judgment dismissing the provider's claims. The provider's sole appellate argument was that the insurer had not proved those failures to appear. The affidavit of the investigator responsible for conducting the EUOs established that the assignor missed the scheduled examinations. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, appearance at an EUO is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, treated the appeal as one from the judgment under CPLR 5512 (a) and affirmed the judgment entered upon denial of the provider's motion and grant of the insurer's cross motion.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52013(U) Insurer prevailed

Van Courtland Med. Care, P.C. v Praetorian Ins. Co.

The insurer's unrebutted peer review established lack of medical necessity and warranted dismissal of the claim at issue on appeal. The provider sued to recover assigned no-fault benefits, and the insurer appealed only the denial of summary judgment on one claim. The affirmed peer review supplied a factual basis and medical rationale for the doctor's conclusion that the services were unnecessary. The provider did not challenge the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied that claim on medical necessity grounds. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing that claim.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52014(U) Insurer prevailed

Trimed Med. Supply, Inc. v Clarendon Natl. Ins. Co.

The insurer's unrebutted peer review established that the supplies lacked medical necessity and warranted summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the provider's action for assigned no-fault benefits. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusion. The provider did not challenge the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claim on that ground. Following Urban Radiology, the appellate court rejected the provider's argument that dismissal was unwarranted because it lacked the documents relied upon by the peer reviewer.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52015(U) Insurer prevailed

Complete Radiology, P.C. v Progressive Ins. Co.

The insurer's peer review report raised a triable issue of medical necessity and defeated the provider's summary judgment motion. In this action for assigned no-fault benefits, the Civil Court denied both parties' motions and limited trial to medical necessity under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. Consideration of the insurer's untimely cross motion was discretionary because the provider opposed it and showed no prejudice. The appellate court declined to search the record and grant the insurer summary judgment.

Appellate Term, Second Department Oct 27, 2011 2011 NY Slip Op 52017(U) Insurer prevailed

Morris Park Chiropractic, P.C. v American Tr. Ins. Co.

The provider's chiropractor failed to meaningfully address or rebut the IME report finding the disputed services medically unnecessary. The insurer appealed denial of the branch of its cross motion seeking summary judgment on a specified group of assigned no-fault claims. Its sworn IME report set out the examining chiropractor's determination that those services lacked medical necessity. The provider's opposing affidavit did not rebut the report's conclusions, and the provider did not dispute the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those claims.

Appellate Term, Second Department Oct 26, 2011 2011 NY Slip Op 51997(U) Insurer prevailed

MSSA Corp. v American Tr. Ins. Co.

The insurer's unrebutted peer review established lack of medical necessity for the supplies and warranted dismissal of the complaint. The Civil Court denied both parties' summary judgment motions, found the provider's prima facie case and timely denial established, and left medical necessity for trial. The insurer's affirmed peer review supplied a factual basis and medical rationale for the doctor's determination that the supplies were unnecessary. The provider neither rebutted that showing nor challenged the implicit finding under CPLR 3212 (g) that the insurer timely denied the claim on that ground. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment.

Appellate Term, Second Department Oct 25, 2011 2011 NY Slip Op 51988(U) Provider prevailed

R.D.K. Med., P.C. v NY Cent. Mut. Fire Ins. Co.

The insurer failed to establish that a default declaratory judgment barred claims arising from an incident not listed in that judgment. The insurer sought summary judgment based on a prior declaration barring the provider and assignor from recovering benefits for specified incidents found to have been staged. The claims in this action concerned a different incident, whose date also appeared on the insurer's denial forms. The motion papers therefore did not establish the judgment's preclusive effect. The Appellate Term, Second Department, reversed, denied the insurer's motion, reinstated the complaint, and remitted the matter to the Civil Court for determination of the provider's cross motion to amend the caption and obtain discovery.

Appellate Term, Second Department Oct 25, 2011 2011 NY Slip Op 51990(U) Provider prevailed

Superior Med. Equip. & Supply v Merchants & Businessmens Mut. Ins. Co.

The provider raised a factual issue whether notice to the owner's broker secured retroactive coverage for a newly acquired vehicle. The insurer's affidavit showed that coverage began three weeks after the accident, establishing prima facie entitlement to dismissal. The provider argued that the owner instructed the broker within 14 days of purchase to add the vehicle to an existing policy, satisfying a condition for coverage retroactive to purchase. The insurer's declaration identified the broker as an agency, raising a factual issue whether the broker had general authority to represent the insurer. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion.

Appellate Term, Second Department Oct 25, 2011 2011 NY Slip Op 51993(U) Provider prevailed

South Bronx Med., P.C. v Progressive Ins. Co.

An oral trial ruling is not appealable unless incorporated into an order or judgment, even if memorialized in writing. Two providers obtained a directed verdict during a nonjury trial of assigned no-fault claims before the insurer had rested. The insurer had denied one provider's claim for lack of medical necessity based on a peer review and the other provider's claims for improper fees. The Appellate Term, Second Department, dismissed the insurer's appeal from the trial ruling under CCA 1702 and CPLR 5512. The ruling could not be appealed either as of right or by permission without incorporation into an order or judgment.

Appellate Term, Second Department Oct 18, 2011 2011 NY Slip Op 51878(U) Insurer prevailed

BLR Chiropractic, P.C. v MVAIC

A provider that knows the vehicle owner's identity must exhaust remedies against that owner before seeking relief from MVAIC. The provider sought assigned no-fault benefits for an assignor who had been a passenger in the vehicle. Both knew the owner's identity, but the provider did not demonstrate that it had exhausted remedies against the owner, as required under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion for summary judgment dismissing the complaint.

Appellate Term, First Department Oct 18, 2011 2011 NY Slip Op 51891(U) Provider prevailed

Pomona Med. Diagnostic, P.C. v MVAIC

MVAIC's summary judgment motion was denied because it failed to show that the assignor was not a qualified person entitled to coverage. The Appellate Term, First Department, affirmed the denial in the provider's action for assigned no-fault benefits, relying on Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. MVAIC also failed to show that the provider was required to exhaust remedies before seeking reimbursement.

Appellate Term, Second Department Oct 18, 2011 2011 NY Slip Op 51875(U) Insurer prevailed

Stracar Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co.

The provider's complaint was conditionally subject to dismissal for failure to answer discovery and produce its owner for a deposition. The order required responses to the insurer's discovery demands within 45 days and production of the owner for an examination before trial within 60 days, with dismissal under CPLR 3126 upon noncompliance. CPLR 3101 (a) requires disclosure of material and necessary matter, and CPLR 3124 permits orders compelling discovery. Applying the trial court's broad discretion over discovery, the Appellate Term, Second Department, found no improvident exercise of discretion and affirmed the order, insofar as appealed from, in the insurer's favor.

Appellate Term, Second Department Oct 18, 2011 2011 NY Slip Op 51880(U) Split result

Trimed Med. Supply, Inc. v American Tr. Ins. Co.

The insurer established lack of medical necessity for three claims, but a factual issue remained over the fourth claim's late submission. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing three supply claims on an unrebutted affirmed peer review providing a factual basis and medical rationale. The insurer established timely mailing of its denials. Dismissal of the fourth claim remained denied because, although submitted beyond 45 days, the provider offered an explanation under 11 NYCRR 65-3.3 (e) whose reasonableness presented a factual issue. Denial of the provider's preclusion and summary judgment motion was affirmed: discovery responses served less than a week late did not warrant preclusion under the circumstances.

Appellate Term, Second Department Oct 18, 2011 2011 NY Slip Op 51876(U) Insurer prevailed

Mosad Med., P.C. v Praetorian Ins. Co.

The provider's doctor's affirmation failed to rebut the insurer's peer review showing that the services lacked medical necessity. The insurer's affirmed report set forth a factual basis and medical rationale for its doctor's conclusion. The opposing affirmation did not meaningfully address, much less rebut, those conclusions. The provider also did not dispute the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claim. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint, rather than leaving medical necessity for trial.

Appellate Term, Second Department Oct 18, 2011 2011 NY Slip Op 51877(U) Insurer prevailed

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co.

The provider failed to prove that its claim was overdue because its witness's testimony lacked personal knowledge. After a nonjury trial of the action for assigned no-fault benefits, the Civil Court granted the insurer's motion for a directed verdict and dismissed the complaint on that ground. The Appellate Term, Second Department, agreed with the finding and affirmed the judgment, treating the provider's appeal from the trial decision as an appeal from the judgment under CPLR 5520 (c).

Appellate Term, Second Department Oct 14, 2011 2011 NY Slip Op 51863(U) Insurer prevailed

New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co.

The hospital's third-party affidavit failed to establish its claim forms as business records proving the services rendered. A provider seeking summary judgment must prove claim submission, the fact and amount of loss, and either failure to pay or deny within 30 days or a timely denial that is conclusory, vague, or without merit as a matter of law under Insurance Law § 5106 (a). Claim forms offered to prove the loss require a business-record foundation under CPLR 4518 (a). The affidavit did not establish that the NF-5 or its incorporated UB04 listing the hospital's services was the hospital's business record. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion.

Appellate Term, Second Department Oct 14, 2011 2011 NY Slip Op 51860(U) Insurer prevailed

Radiology Imaging of Queens v Progressive Ins.

The insurer's unopposed peer review and timely denial established entitlement to dismissal for lack of medical necessity. In its summary judgment motion, the insurer demonstrated that the denial was timely mailed through its standard office practices and procedures. It also submitted an affirmed peer review providing a factual basis and medical rationale for the doctor's opinion that the service was unnecessary. That proof established the insurer's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the order denying the motion and granted the insurer summary judgment dismissing the provider's complaint for assigned no-fault benefits.

Appellate Term, Second Department Oct 14, 2011 2011 NY Slip Op 51862(U) Insurer prevailed

Padova Physical Rehab. Medicine, P.C. v Praetorian Ins. Co.

The insurer's proof established timely IME notices and denials and the assignor's nonappearances, warranting summary judgment. A manager's affidavit established timely mailing of the IME notices through the scheduling service's standard office practices. Affirmations from the medical professionals retained to conduct the examinations established the assignor's failures to appear, contrary to the Civil Court's finding. The insurer's examiner also established timely mailing of the denials. Because IME attendance is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, the insurer properly denied the claims and was not precluded from asserting the defense. The Appellate Term, Second Department, reversed and granted the insurer's motion dismissing the complaint.

Appellate Term, Second Department Oct 14, 2011 2011 NY Slip Op 51864(U) Insurer prevailed

MSSA Corp. v American Tr. Ins. Co.

The insurer's unrebutted peer review established lack of medical necessity for the supplies and warranted summary judgment. The Civil Court had found under CPLR 3212 (g) that the provider established its prima facie case and the insurer established timely denial, leaving medical necessity as the sole trial issue. The insurer's affirmed peer review provided a factual basis and medical rationale for concluding that the supplies were unnecessary. The provider did not rebut that showing or dispute the timely-denial finding. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 21361 Provider prevailed

Fine Healing Acupuncture, P.C., v Country-Wide Ins. Co.

An insurer's medical-necessity denial need not rest on an examination by a practitioner in the treating provider's specialty. The insurer relied on a neurologist's IME finding no need for further acupuncture, and the Civil Court denied the provider's motion while granting the insurer's cross motion for summary judgment. Deferring to an Insurance Department opinion letter, the Appellate Term rejected the provider's specialty objection. The IME supplied a factual basis and medical rationale, but the treating acupuncturist's affidavit raised a triable issue concerning necessity. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer's cross motion, and denied that cross motion.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51851(U) Insurer prevailed

Alfa Medical Supplies, Inc.. v Auto One Ins. Co.

A peer review report is not inadmissible merely because the reviewer considered medical records from other providers. The insurer submitted two affirmed peer reviews supplying factual bases and medical rationales for finding the equipment medically unnecessary. Following Urban Radiology, the Appellate Term, Second Department, rejected the provider's challenge to the reports' admissibility. The insurer also established timely mailing of its medical necessity denials through affidavits describing standard office practices. Its prima facie showing shifted the burden to the provider, which failed to rebut it. The appellate court affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51850(U) Insurer prevailed

Walton Med. Care, P.C. v Travelers Ins. Co.

A court denying a petition to vacate a master arbitration award must confirm the award under CPLR 7511 (e). The provider sought relief under CPLR article 75 from a master arbitrator's award upholding denial of assigned no-fault benefits in arbitration under Insurance Law § 5106 (b). The Appellate Term, Second Department, found the master arbitrator's determination rational, neither arbitrary nor capricious, and consistent with settled law. It modified the order denying vacatur by adding confirmation of the award and otherwise affirmed, leaving the denial of benefits intact. It also noted that a special proceeding should terminate in a judgment under CPLR 411.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51852(U) Insurer prevailed

PMR Physical Therapy v GEICO Gen. Ins. Co.

The provider's billing-company affidavit lacked personal knowledge needed to establish the admissibility of its supporting records. The provider moved unopposed for summary judgment on assigned no-fault claims, relying on an affidavit from the president of a third-party billing company. The affiant did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to establish that the attached documents were admissible under CPLR 4518. The provider therefore failed to establish prima facie entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order denying the provider's motion.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51853(U) Insurer prevailed

Parkway Imaging & Diagnostic, P.C. v Clarendon Natl. Ins. Co.

The insurer's IME doctor's affirmation established the assignor's nonappearances, and the provider failed to raise a triable issue. The insurer also established timely mailing of the IME requests and denial through affidavits describing the scheduling service's and insurer's standard office practices. Contrary to the Civil Court's finding, the doctor's affirmation sufficiently proved the missed examinations. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, IME attendance is a condition precedent to coverage, and the insurer properly denied the claim without preclusion. The provider's counsel's opposing affirmation was insufficient. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51854(U) Insurer prevailed

Triangle R, Inc. v Clarendon Natl. Ins. Co.

The insurer established the assignor's IME nonappearances and timely mailing of notices and the denial, warranting dismissal. The scheduling entity's president described standard office practices establishing timely mailing of the IME requests. Sworn statements from the doctor and chiropractor retained to perform the examinations established the nonappearances, and the insurer's claims examiner established timely mailing of the denial. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, IME attendance is a condition precedent to the insurer's policy liability. The insurer properly denied the claim and was not precluded from asserting that defense. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51855(U) Insurer prevailed

Proscan Imaging Buffalo v Clarendon Natl. Ins. Co.

The insurer's affidavits established timely IME notices and denials and the assignor's nonappearances, requiring dismissal. The scheduling service's president established timely mailing of IME requests through standard office procedures. The chiropractor retained to conduct the examinations established the assignor's nonappearances, contrary to the Civil Court's finding, and a claims employee established timely mailing of the denials. IME attendance is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, and the insurer properly denied the claim without preclusion. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider summary judgment, and granted the insurer summary judgment dismissing the complaint.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51856(U) Insurer prevailed

AVA Acupuncture, P.C. v GEICO Gen. Ins. Co.

The insurer established full payment under the applicable chiropractor acupuncture fee schedule and timely mailing of its denials. A claims employee's affidavit established standard office mailing practices, contrary to the provider's challenge. It also demonstrated that the insurer properly applied the workers' compensation fee schedule for acupuncture services performed by chiropractors, following Great Wall Acupuncture. The provider did not dispute that the insurer paid the full permissible amount before suit. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The provider's remaining arguments were not properly before the court because they were raised for the first time on appeal.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51857(U) Insurer prevailed

S.M. LAC, LLC v Nationwide Mut. Ins. Co.

The provider's appeal was dismissed because rejection of its untimely opposition left the insurer's summary judgment motion unopposed. The provider acknowledged that the Civil Court rejected the opposition papers, and the order recited consideration only of the moving papers under CPLR 2219 (a). The resulting judgment dismissing the assigned no-fault action was therefore treated as entered on default. Under CPLR 5511, no appeal lies from such a judgment by the defaulting party. The Appellate Term, Second Department, dismissed the provider's appeal, leaving the judgment in the insurer's favor undisturbed.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51858(U) Insurer prevailed

Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co.

The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim. The insurer proved timely mailing of its denial on that ground and submitted a peer review supplying a factual basis and medical rationale for the conclusion that the services were unnecessary. This established prima facie entitlement to summary judgment and shifted the burden to the provider, which failed to rebut the showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint; it reached no other issue, including the challenged finding under CPLR 3212 (g) that the provider had established its prima facie case.

Appellate Term, Second Department Oct 12, 2011 2011 NY Slip Op 51859(U) Split result

Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer proved lack of medical necessity for seven claims but failed to establish defenses to the remaining two. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the first through fifth, eighth, and ninth causes of action on the insurer's summary judgment cross motion. Unrebutted affirmed IME and peer review reports supplied factual bases and medical rationales, and timely denials were established. Dismissal remained denied for the sixth cause of action because its denial did not assert medical necessity, that defense was not shown to be preserved, and the stated defense was not established. For the seventh cause of action, concerning an office visit, the insurer failed to substantiate its asserted reduced reimbursement rate.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51835(U) Provider prevailed

Complete Med. Servs. of NY, P.C. v MVAIC

The provider established its prima facie case against MVAIC, including the assignor's New York residence through a notarized notice of intention to claim. MVAIC received the notice, executed one day after the accident, which stated the assignor's New York residence under Insurance Law § 5202 (b) and § 5221 (b) (2). The provider also proved mailing of its claim, nonpayment, an untimely denial, and admissibility of the claim form under CPLR 4518. The Appellate Term, Second Department, affirmed summary judgment for the provider. It dismissed the separate appeal from the order because entry of judgment terminated direct appeal, reviewing the issues on the judgment appeal under CPLR 5501 (a) (1).

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51834(U) Insurer prevailed

Peace of Mind, Social Work, P.C. v MVAIC

The provider failed to establish its prima facie case at trial because it offered no proof of submitting a notice of intention to claim to MVAIC. Its billing witness testified only to creation and mailing of the claim form and nonpayment. Timely sworn notice is a condition precedent under Insurance Law § 5208 (a) (1) and (3), and compliance establishes covered-person status under Insurance Law § 5221 (b) (2). Applying those provisions and Insurance Law § 5202 (b), the Appellate Term, Second Department, reversed the provider's nonjury judgment and remitted for dismissal. Civil Court had awarded recovery based on a defective late-billing denial under 11 NYCRR 65-3.3 (e), but the provider's failure of proof required dismissal.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 21359 Provider prevailed

Jamaica Med. Supply, Inc. v NY Cent. Mut. Fire Ins. Co.

A provider's arbitration election does not bar another provider from suing for benefits arising from the same accident. Under Insurance Law § 5106 (b), each provider may independently choose arbitration. The plaintiff had not participated in the earlier arbitration, and no privity with the participating provider was shown, so the award also lacked res judicata or collateral estoppel effect against it. The insurer's alternative summary judgment request, alleging that the assignor was not involved in the accident, failed because its supporting proof was inadmissible. The Appellate Term, Second Department, reversed, denied the insurer's motion under CPLR 3211 and CPLR 3212, and reinstated the complaint; a dissent favored dismissal with prejudice based on the prior award and coverage evidence.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51836(U) Provider prevailed

Park v Zurich American Ins. Co.

The insurer failed to show that its late-claim denials advised the provider that reasonable justification could excuse late submission. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion to dismiss the complaint. The denials asserted that the provider submitted claims more than 45 days after rendering the services. The no-fault specialist's affidavit sufficiently established timely mailing of those denials through standard office practices and procedures. However, 11 NYCRR 65-3.3 (e) required notice that late proofs of claim would be excused upon a reasonable justification. Because the insurer did not demonstrate that its denial forms contained that advice, it failed to establish entitlement to summary judgment.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51840(U) Split result

Fiutek v Clarendon Natl. Ins. Co.

The insurer proved the assignor's IME nonappearance, but conflicting mailing evidence prevented dismissal of one claim. The Appellate Term, Second Department, modified the order to grant summary judgment dismissing claims for services in August, September, and October, while leaving the July claim pending. Affidavits established timely mailing of the IME notices, the assignor's nonappearance, and timely denials of the dismissed claims. For the July claim, the denial was dated August 23, but the claims examiner stated it was mailed September 26, despite describing a practice of mailing denials when generated. That conflict created a factual issue concerning mailing. Although the provider submitted no opposition, the insurer established entitlement to judgment only on the remaining claims.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51843(U) Split result

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

The workers' compensation fee schedule may be judicially noticed in determining reimbursement for acupuncture services. The Appellate Term, Second Department, modified the order, insofar as appealed from, denying the provider's summary judgment motion and granting the insurer's cross motion in part. Under Workers' Compensation Law § 13, 11 NYCRR 68.1 (a), and CPLR 4511 (b), the schedule was sufficiently authentic and reliable for judicial notice. Claims fully paid under the chiropractic fee schedule were dismissed; claims for services whose treatment codes the insurer changed without explanation survived. Claims denied for lack of medical necessity were dismissed because supported peer reviews went unrebutted. The provider's motion failed because it admitted timely partial payments and denials without showing the denials lacked merit as a matter of law.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51844(U) Split result

LVOV Acupuncture, P.C. v GEICO

The workers' compensation fee schedule may be judicially noticed when determining reimbursement for acupuncture services. Under Workers' Compensation Law § 13, 11 NYCRR 68.1 (a), and CPLR 4511 (b), the schedule had sufficient authenticity and reliability for judicial notice. The insurer established full payment for services billed under codes 97810 and 97811 using the chiropractic fee schedule and timely mailing of partial denials. The Appellate Term, Second Department, modified the order, insofar as appealed from, and searched the record to dismiss those claims. The provider retained summary judgment for the initial visit billed under code 99204 because the insurer offered no supporting evidence or argument for dismissal. The court declined to search the record on the separate medical-necessity claims.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51837(U) Insurer prevailed

Viviane Etienne Med. Care, P.C. v Auto One Ins. Co.

A conditional preclusion order becomes absolute when a party fails to comply timely and sufficiently with its terms. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal of the complaint on the insurer's cross motion. The provider was directed to supply verified discovery responses within 60 days or be precluded from offering evidence at trial. It missed that deadline, and responses served after the cross motion were incomplete. To avoid preclusion, the provider had to demonstrate both a reasonable excuse and a meritorious cause of action, but failed to do so. Because the absolute preclusion order barred all trial evidence, dismissal was proper. The provider's remaining contentions were unpreserved or lacked merit.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51839(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v Autoone Ins. Co.

An assignor's appearance at an IME is a condition precedent to the insurer's liability under the no-fault policy. The Appellate Term, Second Department, affirmed a judgment dismissing the provider's complaint after the insurer's summary judgment motion was granted and the provider's cross motion denied. A manager's affidavit from the company retained to schedule the IMEs established timely mailing of the scheduling letters through standard office practices and procedures. The chiropractor who was to conduct the examinations supplied an affidavit establishing the assignor's nonappearance. Applying 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court upheld dismissal on the IME nonappearance defense.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51841(U) Insurer prevailed

Lynbrook Med., P.C. v GEICO Gen. Ins. Co.

The providers failed to establish entitlement to summary judgment because they did not show that the insurer's timely denials lacked merit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers' motion for summary judgment on assigned no-fault claims. The insurer established timely mailing through its standard office practices and procedures. Its denials asserted lack of medical necessity and payment under the workers' compensation fee schedule. Following Westchester Med. Ctr. v Nationwide Mut. Ins. Co., the providers' failure to show that those grounds were conclusory, vague, or without merit as a matter of law defeated their prima facie showing. The court therefore did not consider the sufficiency of the insurer's opposition papers.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51842(U) Insurer prevailed

Z.A. Acupuncture, P.C. v Geico Ins. Co.

The insurer established proper acupuncture reimbursement under the chiropractic fee schedule and lack of medical necessity for later services. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider's motion, and granted the insurer's cross motion for summary judgment dismissing the complaint. The court judicially noticed the fee schedule under Workers' Compensation Law § 13, 11 NYCRR 68.1 (a), and CPLR 4511 (b). The insurer showed full payment at the applicable rates and proper recoding from former treatment code 97780 to code 97810. An IME report and the examining acupuncturist's affidavit established lack of medical necessity for subsequent services. The provider submitted no opposition or admissible contrary evidence and failed to show its admitted timely denials lacked merit.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51845(U) Split result

LVOV Acupuncture, P.C. v GEICO Ins. Co.

The workers' compensation fee schedule incorporated into no-fault regulations may be judicially noticed under CPLR 4511 (b). The schedule required by Workers' Compensation Law § 13 and incorporated through 11 NYCRR 68.1 (a) was sufficiently authentic and reliable despite the insurer's failure to submit it. The insurer established full payment for acupuncture billed under codes 97810 and 97811 using the chiropractic fee schedule, and timely mailing of partial denials. It offered no evidence or argument against the initial visit billed under code 99204. The Appellate Term, Second Department, modified the order to grant the provider summary judgment only for that initial visit and grant the insurer's cross motion dismissing the remaining claims.

Appellate Term, Second Department Oct 11, 2011 2011 NY Slip Op 51846(U) Insurer prevailed

Five Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co.

EUO scheduling letters need not conspicuously highlight the information they contain under 11 NYCRR 65-3.5 (b) and (e). The Civil Court granted the provider summary judgment and denied the insurer's cross motion after finding the scheduling letters insufficient. The insurer's affidavits established timely mailing of the letters and denial through standard office practices. An affirmation from an attorney responsible for conducting the EUOs established the provider's failure to appear at either scheduled EUO, which had been requested of its owner. EUO attendance is a condition precedent to policy liability under 11 NYCRR 65-1.1. The Appellate Term, Second Department, reversed, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint.

Trial court, Second Department Oct 6, 2011 2011 NY Slip Op 21413 Provider prevailed

Kraft v State Farm Mut. Auto. Ins. Co.

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

A chiropractor may perform hip manipulation under anesthesia for spinal nerve interference but may not administer the anesthesia. The Civil Court, Queens County, entered a verdict for the provider after a bench trial on medical necessity. Under Education Law § 6551 (1), treatment may extend beyond the spine when directed at nerve interference related to the vertebral column; Education Law § 6551 (3) bars the chiropractor from administering drugs. A licensed professional administered anesthesia here, and the hip treatment was related to the spine. The insurer's expert supplied no authority requiring a second opinion, and failure to review records alone was insufficient. The cited protocols also permitted the procedure after minimally effective conservative care. The insurer failed to rebut medical necessity by a fair preponderance of credible evidence.