Appellate Division, Second Department
May 30, 2012
2012 NY Slip Op 04156
Provider prevailed
The provider proved receipt of its bill and nonpayment or denial within 30 days; the insurer failed to raise a triable issue. The certified mail receipt and signed return receipt card created a presumption of receipt that the insurer's mere denial did not rebut. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), failure to respond within 30 days precluded defenses based on untimely notice of the accident or proof of claim. Although lack of coverage remained available despite the late denial, the insurer's submissions did not raise a triable issue on that defense. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the provider's motion for summary judgment.
Appellate Term, First Department
May 29, 2012
2012 NY Slip Op 50950(U)
Insurer prevailed
The provider failed to rebut presumed receipt of verification requests because its affidavit did not show anyone checked its computer records. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion and dismissed the complaint. The insurer established proper mailing of its verification letters. The provider's billing supervisor described general procedures for recording receipt but supplied no facts showing that anyone checked the computer system for those letters. The affiant's asserted status as custodian of the case file, without more, did not overcome the presumption of receipt under Nassau Ins. Co. v Murray or raise a material issue requiring trial.
Appellate Term, Second Department
May 25, 2012
2012 NY Slip Op 22142
Insurer prevailed
Under Florida law, failure to follow statutory cancellation procedures does not preclude rescission for a material application misrepresentation. Applying the grouping-of-contacts analysis, the Appellate Term, Second Department, found Florida law controlling, as the parties agreed. Florida Statutes § 627.409 permitted retroactive rescission independently of the cancellation procedures in Florida Statutes § 627.728. The insurer nevertheless had to give the insured notice and return or tender all premiums within a reasonable time after discovering the grounds for rescission. Its affidavit, rescission letter, and endorsed premium-refund checks established compliance. The provider raised no triable issue concerning the rescission's validity. The court affirmed the judgment dismissing the provider's assigned no-fault claim on the insurer's summary judgment motion.
Appellate Term, Second Department
May 15, 2012
2012 NY Slip Op 50930(U)
Insurer prevailed
The provider's third and sixth causes of action were premature because requested verification remained outstanding when suit began. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing those causes of action. The claims examiner's affidavit established timely mailing of verification requests and follow-up requests and the provider's failure to respond. In opposition, the provider did not demonstrate that it had supplied the requested verification before commencing the action. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny those claims therefore had not begun to run.
Appellate Term, Second Department
May 15, 2012
2012 NY Slip Op 50931(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled examinations. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion. An employee of the scheduling entity established timely mailing of the IME letters, and the insurer's claims employees established timely mailing of the denials. Affirmations from the examining physician, chiropractor and acupuncturist established nonappearance. This proof entitled the insurer to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider submitted only counsel's affirmation in opposition, which failed to raise a triable issue of fact.
Appellate Term, Second Department
May 15, 2012
2012 NY Slip Op 50934(U)
Insurer prevailed
An insurer need not attach the medical records reviewed by its peer reviewer to its summary judgment motion. The Appellate Term, Second Department, affirmed the judgment dismissing the provider's assigned no-fault claims after denial of the provider's motion and grant of the insurer's cross motion. The Civil Court had found timely denials based on lack of medical necessity and no rebuttal of the insurer's evidence. The appellate court rejected the provider's objection to the absence of underlying medical records. It also rejected the challenge to the report's electronically stamped facsimile signature because the record showed that the chiropractor who performed the review had permissibly placed the signature on the report.
Appellate Term, Second Department
May 14, 2012
2012 NY Slip Op 50890(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and the denial, and the assignor's failure to appear at either scheduled EUO. The provider challenged summary judgment dismissing its assigned no-fault claims. The insurer's affidavits established mailing and nonappearance. Following ARCO Med. NY, P.C. v Lancer Ins. Co., the court rejected the provider's argument that the nonappearances permitted denial only of pending claims. Because the provider did not claim to have responded to the EUO requests, its appellate objection to those requests would not be heard. The Appellate Term, Second Department, affirmed the judgment entered on the order granting the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 14, 2012
2012 NY Slip Op 51012(U)
Insurer prevailed
The provider's claims against MVAIC failed for lack of a timely sworn notice of claim and failure to exhaust remedies against the vehicle owner. MVAIC established that no timely sworn notice had been filed and no leave to file a late notice had been sought under Insurance Law § 5208 (a) and (c). The assignor therefore was not a covered person under Insurance Law § 5221 (b) (2). The provider and assignor also had not exhausted remedies against the owner of the vehicle in which the assignor was a passenger, as required by Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's summary judgment cross motion dismissing the complaint.
Appellate Term, Second Department
May 14, 2012
2012 NY Slip Op 51014(U)
Insurer prevailed
The insurer proved timely mailing of the EUO notices and denials and the provider's failure to attend either scheduled EUO. In this action for assigned first-party no-fault benefits, the provider challenged the affidavits supporting the insurer's summary judgment motion. The affidavits established both timely mailing and nonappearance. Under 11 NYCRR 65-1.1, a provider's appearance at a duly scheduled EUO is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
May 14, 2012
2012 NY Slip Op 51010(U)
Insurer prevailed
The insurer established full fee-schedule payment for four acupuncture claims and lack of medical necessity for a fifth. 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. Claims employees' affidavits established timely mailing of the denials and proper use of the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The insurer had paid the allowable amounts on the second through fifth causes of action before suit. A sworn peer review supported denial of the first cause of action, and the treating acupuncturist's affidavit failed meaningfully to address or rebut its conclusions.
Appellate Term, Second Department
May 14, 2012
2012 NY Slip Op 51013(U)
Insurer prevailed
An insurer seeking summary judgment on medical necessity need not attach the medical records reviewed by its peer reviewer. The Civil Court, Kings County, found that the insurer timely denied the claims as medically unnecessary and that the provider failed to rebut the insurer's evidence. It denied the provider's motion and granted the insurer's cross motion dismissing the complaint. Following Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co. and Urban Radiology, P.C. v Tri-State Consumer Ins. Co., the Appellate Term, Second Department, rejected the provider's objection to the absence of the underlying records, rejected its remaining contentions and affirmed the dismissal judgment.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50882(U)
Insurer prevailed
The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut. The Appellate Term, Second Department, reversed the order denying the insurer's cross motion and granted summary judgment dismissing the complaint. The provider had withdrawn its own summary judgment motion. The insurer's affidavits established timely denial, and its peer review report supplied a factual basis and medical rationale for finding the services unnecessary. Contrary to the Civil Court's finding, the copy of the report together with the reviewing chiropractor's affidavit established the defense prima facie. The burden therefore shifted to the provider, which failed to rebut that showing.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50862(U)
Provider prevailed
MVAIC failed to establish timely mailing of its denials because it proved neither actual mailing nor office procedures for the relevant period. Its claims representative began working for MVAIC after the denials were allegedly mailed, and the affidavit did not establish the required mailing practice during that period. MVAIC therefore failed to show that it was not precluded from asserting the defense supporting its summary judgment motion. The Appellate Term, Second Department, reversed the judgment dismissing the complaint, vacated the portion of the underlying order granting MVAIC summary judgment and denied that motion, allowing the provider's action to continue. The court reached no other issue.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50881(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against the owner of the vehicle that struck the assignor, barring relief from MVAIC. The provider and assignor knew that owner's identity. Under Hauswirth v American Home Assur. Co., the provider, as assignee, had to exhaust remedies against the owner before seeking MVAIC benefits. Because it did not demonstrate exhaustion, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50879(U)
Insurer prevailed
MVAIC established that neither a timely notice of claim nor an application for leave to file a late notice had been made. Under Insurance Law § 5208 (a) and (c), the assignor was not a covered person under Insurance Law § 5221 (b) (2). The provider therefore had not satisfied a condition precedent to applying for no-fault benefits from MVAIC. The Appellate Term, Second Department, reversed the provider's judgment, 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, Second Department
May 11, 2012
2012 NY Slip Op 50878(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought. Under Insurance Law § 5208 (a) and (c), the assignor was therefore not a covered person under Insurance Law § 5221 (b) (2). The provider had not satisfied a condition precedent to applying for no-fault benefits from MVAIC. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, entered on the order denying the provider's summary judgment motion and granting MVAIC's cross motion.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50877(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against the known vehicle owner, requiring dismissal of its claims against MVAIC. The provider and assignor knew the owner of the vehicle in which the assignor had been a passenger during the accident. Under Hauswirth v American Home Assur. Co., the provider had to exhaust remedies against that owner before seeking MVAIC benefits. The Appellate Term, Second Department, reversed the provider's judgment, 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, Second Department
May 11, 2012
2012 NY Slip Op 50875(U)
Insurer prevailed
MVAIC established the absence of a timely notice of claim or an application for leave to file a late notice, defeating coverage. The provider had obtained summary judgment on its assigned no-fault claim. Under Insurance Law § 5208 (a) and (c), MVAIC's showing established that the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to the provider's right to apply for benefits had therefore not been satisfied. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion for summary judgment and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50868(U)
Insurer prevailed
The insurer's sworn peer review established lack of medical necessity for psychological services, and the provider did not rebut it. The Civil Court, Kings County, denied both parties' summary judgment applications and identified medical necessity as the sole issue for trial after finding the denial timely and proper. The insurer's peer review supplied a factual basis and medical rationale for the psychologist's conclusion that the services were not medically necessary. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. 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
May 11, 2012
2012 NY Slip Op 50864(U)
Insurer prevailed
An insurer may obtain Mallela discovery despite omitting the defense from its answer if its moving papers sufficiently allege ineligibility. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling disclosure and then an examination before trial of the provider's owner, and denying the provider's cross motion for a protective order and summary judgment. The insurer sufficiently alleged that the professional service corporation was ineligible for no-fault reimbursement because it failed to comply with applicable licensing requirements. The Civil Court therefore acted within its discretion in ordering discovery. In light of that ruling, denial of the provider's cross motion was proper under CPLR 3212 (f).
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50865(U)
Insurer prevailed
The insurer established full payment under the workers' compensation fee schedule for the four challenged causes of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing the first, second, third and fifth causes of action. The insurer's affidavits established timely denials on the ground that the unpaid portions exceeded the permissible fee-schedule amounts. The insurer also demonstrated that it had fully paid for the services in accordance with that schedule, following Great Wall Acupuncture, P.C. v GEICO Ins. Co.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50871(U)
Insurer prevailed
The provider's fee-schedule payment challenge failed, and its remaining contention relied on material outside the record. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the challenged acupuncture claims for two assignors. The Civil Court had implicitly found timely fee-schedule denials. The appellate court rejected the argument that the insurer had not demonstrated full payment under the schedule. It declined to consider the remaining contention because the provider conceded that it rested on material outside the record.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50872(U)
Provider prevailed
The insurer's summary judgment motion based on lack of medical necessity was denied because the provider raised a triable factual issue. The Appellate Term, Second Department, reversed the judgment dismissing the complaint, vacated the order granting the motion and denied it, stating that the provider's opposition showed a factual issue concerning the medical necessity of the supplies and citing Zuckerman v City of New York.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50880(U)
Split result
The insurer proved the IME no-show defense for four causes of action, but its mailing affidavit omitted the third cause of action. The Appellate Term, Second Department, reversed the judgment, granted dismissal of the first, second, fourth and fifth causes of action, and denied the provider's entire summary judgment cross motion. Affidavits established timely IME notices, nonappearance and timely denials for the four dismissed claims, without a triable rebuttal. The insurer's affidavit did not address the third claim, which remained pending. The provider also failed to establish entitlement to judgment on that claim under Insurance Law § 5106 (a): it did not show that the attached denial was untimely mailed, conclusory, vague or legally meritless.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50883(U)
Insurer prevailed
The insurer's summary judgment dismissal was upheld because the record showed no factual issue about whether it denied the claims. The Appellate Term, Second Department, affirmed the judgment dismissing the provider's assigned no-fault action on the insurer's cross motion. It rejected the provider's sole appellate argument that a triable issue existed as to whether any claims had been denied.
Appellate Term, Second Department
May 11, 2012
2012 NY Slip Op 50884(U)
Split result
The provider's employee affidavit raised a factual issue about timely denial of the claim for services rendered August 2 through August 9, 2007. The Appellate Term, Second Department, reversed the judgment and vacated only the portion of the order granting the insurer summary judgment dismissing that claim, denying that branch of the cross motion. The insurer's claims employee had established timely denial prima facie through standard office mailing practices and procedures. The provider's affidavit, submitted with its own summary judgment motion, nevertheless created a triable issue concerning this claim. Summary judgment dismissal of the remaining claims was undisturbed.
Appellate Term, First Department
May 10, 2012
2012 NY Slip Op 50844(U)
Insurer prevailed
The insurer established timely and proper mailing of IME notices and the assignor's nonappearance, without a triable rebuttal. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion and dismissed the provider's action for assigned first-party no-fault benefits. The insurer's proof established prima facie entitlement to dismissal under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC. In opposition, the provider did not specifically deny the assignor's failure to appear or otherwise raise a triable issue concerning nonappearance.
Trial court, Second Department
May 24, 2012
2012 NY Slip Op 51086(U)
Split result
The insurer established grounds for a preliminary injunction against no-fault suits and arbitrations arising from allegedly fraudulent policies. Its investigator's affidavit and verified complaint provided specific facts supporting likely success on fraudulent-procurement claims. A deliberate collision furthering insurance fraud is not a covered accident. Multiple proceedings and possible inconsistent outcomes established irreparable injury and favorable equities. The Supreme Court, Nassau County, applied CPLR article 63 because CPLR 2201 concerns stays in the motion court, and continued restraints on pending and future proceedings during the action. Relief required an undertaking under CPLR 6312 (b) within 20 days. The court denied the provider's CPLR 3211 (a) (4) dismissal request because its reimbursement action lacked sufficient identity, denied severance because common issues favored one trial, and granted unopposed leave to answer late.
Trial court, Second Department
May 1, 2012
2012 NY Slip Op 50903(U)
Provider prevailed
An insurer's consent to adjourn an EUO prevents it from counting nonappearance on that date as a no-show. The Civil Court, Kings County, denied the insurer's summary judgment motion and directed the action to proceed to trial. The insurer requested the initial EUO before receiving the provider's claim, then consented to adjourn it and rescheduled after receipt of the claim. The assignor missed the rescheduled EUO, and the insurer denied benefits without requesting another examination. Receipt of the claim required compliance with the verification procedures, including a follow-up request under 11 NYCRR 65-3.6 (b). Without that request, the insurer could not rely on EUO nonappearance as the ground for denial.
