Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51722(U)
Insurer prevailed
The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge. The provider challenged an acupuncturist's affidavit because it stated only that the assignors had not appeared to the best of the affiant's knowledge. The other two practitioners, however, expressly based their accounts of nonappearance at their scheduled IMEs on personal knowledge. The provider's assertion that those practitioners lacked such knowledge was conclusory and unsupported by the record. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint upon the insurer's summary judgment motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51707(U)
Split result
The insurer failed to schedule the first IME within 30 days of receiving two claims, defeating summary judgment on those claims. Under 11 NYCRR 65-3.5 (d), the insurer was not entitled to dismissal of claims for services from July 21 through August 14 and August 20 through August 25, 2008. The Appellate Term, Second Department, reversed the judgment, vacated summary judgment on those claims and denied those motion branches, but sustained dismissal of the September 3 and 4, 2008 claim. An affidavit established mailing under the scheduling entity's standard procedures, and the letters clearly indicated that the entity acted for the insurer. The provider raised no other argument concerning the September claim.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51710(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractic acupuncture to reimburse a licensed acupuncturist. The provider challenged denials and explanations of benefits accompanying partial payments, and the insurer's use of medical-doctor rates for some claims and chiropractic rates for others. The forms sufficiently explained that the unpaid balances exceeded the fee schedule and that the permitted amounts had been paid. Under Great Wall Acupuncture, P.C. v Geico Ins. Co., the chiropractic rate was permissible. Payment of other claims at the higher medical-doctor rate supplied no basis to disturb their dismissal. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint following denial of the provider's summary judgment motion and grant of the insurer's cross motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51713(U)
Insurer prevailed
The insurer's sworn IME report established lack of medical necessity, and the provider did not rebut the insurer's prima facie showing. The insurer moved for summary judgment dismissing the assigned no-fault action on medical-necessity grounds. Its supporting affidavit established timely denials, and the chiropractor's sworn IME report supplied a factual basis and medical rationale for finding the services unnecessary. Because the provider failed to rebut that showing, the Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51725(U)
Insurer prevailed
The insurer proved timely mailing of IME notices and denials and the assignor's failure to attend the duly scheduled IMEs. An employee of the company retained to schedule the IMEs described standard office mailing practices establishing timely mailing of the scheduling letters. Affirmations from the licensed healthcare professionals who were to perform the examinations established nonappearance, and the insurer's employee established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., attendance at a duly scheduled IME is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51721(U)
Provider prevailed
MVAIC failed to raise a triable issue on exhaustion of remedies because its opposition omitted the documentary evidence it claimed to attach. A prior order denying MVAIC summary judgment on whether the assignor was a qualified person under Insurance Law § 5202 (b) did not bar its separate exhaustion defense. MVAIC could oppose the provider's motion on the ground that the assignor had not exhausted remedies against the identified vehicle owner, but failed to supply the supporting documents. The Appellate Term, Second Department, affirmed summary judgment for the provider and did not address the provider's uncontested prima facie case.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51719(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), and Insurance Law § 5221 (b) (2), the assignor was therefore not a covered person. A condition precedent to the provider's right to seek no-fault payment from MVAIC remained unsatisfied. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, entered upon denial of the provider's summary judgment motion and grant of MVAIC's cross motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51709(U)
Insurer prevailed
A provider and assignor who know the vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider sought assigned benefits for an assignor who had been a passenger in the vehicle, and both knew the owner's identity. The provider did not demonstrate exhaustion of its remedies against the owner. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, affirmed the order granting MVAIC's motion for summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51708(U)
Insurer prevailed
A provider and assignor who know the vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger. The provider failed to demonstrate that it had exhausted its remedies against that owner. Following 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, Second Department
Aug 31, 2012
2012 NY Slip Op 51702(U)
Insurer prevailed
The insurer established timely denials and an unrebutted lack of medical necessity for the chiropractic services at issue. The provider sought summary judgment on its assigned no-fault claims, and the insurer cross-moved to dismiss the complaint. The insurer's affidavit established timely mailing of the denial forms, and its sworn IME report supplied a factual basis and medical rationale for the chiropractor's conclusion. The provider did not rebut that showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and upheld the denial of the provider's motion and grant of the insurer's cross motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51703(U)
Insurer prevailed
The insurer's unrebutted sworn peer review report supported dismissal for lack of medical necessity, and its denial was timely mailed. In the provider's action for assigned no-fault benefits, the insurer supported its cross motion for summary judgment with an affidavit establishing timely mailing of the denial and a psychologist's peer review report. The report supplied a factual basis and medical rationale for finding the services unnecessary, and the provider did not rebut that prima facie showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining denial of the provider's summary judgment motion and the grant of the insurer's cross motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51704(U)
Insurer prevailed
The insurer established timely mailing of its denial and lack of medical necessity through an unrebutted sworn peer review report. The provider challenged the grant of the insurer's cross motion for summary judgment dismissing its assigned no-fault action and the denial of its own motion. The insurer's affidavit established timely mailing, and the psychologist's report set forth a factual basis and medical rationale for concluding that the services were unnecessary. The provider did not rebut the insurer's prima facie showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and rejected the provider's remaining contentions.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51705(U)
Split result
The diagnostic-interview claim presented a factual issue, while unrebutted peer review proof established lack of necessity for three other services. The insurer's affidavit established timely mailing of a denial based on lack of medical necessity. The Appellate Term, Second Department, reversed the judgment and vacated summary judgment dismissing the claim billed under procedure code 90801, denying that branch of the insurer's cross motion because a factual issue remained. Dismissal of the claims for the other three services stood: the psychologist's sworn peer review report supplied a factual basis and medical rationale that the provider did not rebut. The denial of the provider's summary judgment motion remained undisturbed.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51712(U)
Insurer prevailed
The insurer's proof of timely IME notices and denials and the assignor's nonappearance raised a triable issue on six causes of action. Opposing the provider's summary judgment motion, the insurer supplied an affidavit describing the scheduling company's mailing procedures, affirmations from the doctor establishing nonappearance and a claim specialist's affidavit establishing timely mailing of the denials. Under 11 NYCRR 65-1.1, attendance at a duly scheduled IME is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting summary judgment on the fifth through tenth causes of action and denied those branches of the provider's motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51715(U)
Provider prevailed
The insurer's cross motion for summary judgment was denied because a triable issue remained as to whether verification was outstanding. The Appellate Term, Second Department, affirmed the order insofar as appealed from in the provider's action for assigned no-fault benefits, stating that this factual issue warranted denial of the insurer's cross motion to dismiss the complaint.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51716(U)
Insurer prevailed
The insurer's summary judgment dismissing the disputed acupuncture claims on fee-schedule grounds was affirmed. The Appellate Term, Second Department, affirmed the order insofar as appealed from, rejecting the provider's argument that the insurer had not demonstrated full payment under the workers' compensation fee schedule. The provider conceded that its remaining contention rested on material outside the record.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51717(U)
Insurer prevailed
The provider failed to establish entitlement to summary judgment because its submission included a facially timely denial it did not discredit. The provider annexed the insurer's denial to its motion for summary judgment on assigned no-fault benefits. It did not show that the denial was untimely or that its basis was conclusory, vague or without merit as a matter of law. Applying Westchester Med. Ctr. v Nationwide Mut. Ins. Co. and Ave T MPC Corp. v Auto One Ins. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order and denied the provider's motion.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51718(U)
Provider prevailed
The insurer's cross motion for summary judgment on lack-of-medical-necessity grounds was denied, and that denial was affirmed. The Appellate Term, Second Department, affirmed the order insofar as appealed from because the insurer's affirmed peer review report did not clearly establish a sufficient medical rationale and factual basis to show that the supplies were unnecessary.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51723(U)
Provider prevailed
The insurer's summary judgment motion based on late accident notice and late proof of claim was denied, and that denial was affirmed. The Appellate Term, Second Department, affirmed the order insofar as appealed from because the insurer failed to establish, as a matter of law, noncompliance with the 30-day accident-notice or 45-day proof-of-claim requirements of 11 NYCRR 65-1.1.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51724(U)
Insurer prevailed
The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing. In moving for summary judgment dismissing the assigned no-fault action, the insurer established timely mailing of denials based on lack of medical necessity. Its annexed IME report supplied a factual basis and medical rationale for concluding that the services at issue were unnecessary. Because the provider did not rebut the insurer's prima facie showing, the Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 31, 2012
2012 NY Slip Op 51727(U)
Insurer prevailed
The provider did not dispute sufficient proof of the assignor's failure to attend two EUOs timely scheduled after receipt of the claims. Civil Court granted the insurer summary judgment dismissing the assigned no-fault action based on those nonappearances. On appeal, the provider argued that the insurer lacked proof of nonappearance at an earlier EUO. That argument did not contest the evidence of the two later nonappearances or the timely scheduling of those EUOs after the insurer received the claim forms. The Appellate Term, Second Department, rejected the provider's remaining contentions and affirmed the order granting the insurer's motion.
Appellate Term, First Department
Aug 30, 2012
2012 NY Slip Op 51685(U)
Provider prevailed
An insurer's untimely denial precludes a fraudulent-billing defense even if the alleged billing was part of a widespread fraud scheme. The insurer sought to compel the provider to produce its principal for a deposition concerning that defense, and the provider sought a protective order. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the court found the deposition notice palpably improper because the insurer had not denied the claim within the 30-day statutory period. The Appellate Term, First Department, reversed the order, insofar as appealed from, denied the insurer's motion to compel, and granted the provider's cross motion for a protective order.
Appellate Term, First Department
Aug 30, 2012
2012 NY Slip Op 51684(U)
Provider prevailed
MVAIC failed to establish existing insurance coverage through conflicting statements in the assignor's notice of intention to file a claim. MVAIC sought summary judgment dismissing the provider's action for first-party no-fault benefits on the ground that the assignor was not a qualified person. The conflicting statements concerning potential coverage, although perhaps enough to raise a triable issue, did not satisfy MVAIC's threshold burden to establish that a policy was in effect at the time of the accident. The Appellate Term, First Department, affirmed the order denying MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Aug 29, 2012
2012 NY Slip Op 51619(U)
Provider prevailed
MVAIC's conflicting evidence of notice receipt and its own proof of absent insurance defeated its summary judgment motion. In the provider's action for first-party no-fault benefits, MVAIC failed to eliminate triable issues concerning timely filing of the assignor's notice of intention to file a claim because its evidence conflicted on the receipt date. It also failed to establish that the assignor was not a qualified person. Its submissions included the putative insurer's denial form stating that the vehicle carrying the assignor was uninsured on the accident date, defeating its threshold showing that coverage existed. The Appellate Term, First Department, affirmed the order denying MVAIC summary judgment dismissing the complaint.
Appellate Term, First Department
Aug 29, 2012
2012 NY Slip Op 51617(U)
Provider prevailed
MVAIC failed to raise a coverage issue where the putative insurer's letter stated that the striking vehicle was uninsured on the accident date. The provider established prima facie entitlement to summary judgment for assigned first-party no-fault benefits. Under Matter of MVAIC v Interboro Med. Care & Diagnostic PC, MVAIC bore the burden of proving its lack-of-coverage defense. Given the denial letter, its submissions did not raise a triable issue whether an insurance policy was in effect when the accident occurred. The Appellate Term, First Department, affirmed the order granting the provider's motion and denying MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 27, 2012
2012 NY Slip Op 51660(U)
Insurer prevailed
The transit authority established late accident notice, and the provider supplied neither contrary proof nor justification for the delay. The claims examiner proved timely mailing of the denial and first receipt of accident notice through an NF-2 submitted more than 30 days after the accident, contrary to 11 NYCRR 65-2.4. The provider merely speculated that notice arrived earlier and showed no use of the opportunity to provide clear and reasonable written justification under 11 NYCRR 65-1.1 and 65-2.4 (b). Referring to the person who could justify the delay as the applicant did not invalidate the denial because regulations use that term for providers and injured persons. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 27, 2012
2012 NY Slip Op 51659(U)
Insurer prevailed
The insurer proved timely denials and an unrebutted lack of medical necessity through its litigation examiner's affidavit and IME report. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits. Contrary to the provider's arguments, the litigation examiner's affidavit established timely denial of the claims. The affirmed IME report supplied a factual basis and medical rationale for the doctor's determination that the services lacked medical necessity. The provider failed to rebut the insurer's prima facie showing. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51656(U)
Insurer prevailed
The provider's claim was untimely because it missed the 45-day submission deadline and did not establish written justification for the delay. It was undisputed that 11 NYCRR 65-1.1 required submission to MVAIC within 45 days after the services were rendered and that the provider failed to comply. MVAIC's denial advised that written justification could excuse the delay, as required by 11 NYCRR 65-3.3 (e). The provider's opposition did not establish that it supplied such justification. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion; remaining contentions were either improperly raised for the first time on appeal or without merit.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51650(U)
Insurer prevailed
MVAIC established that the assignor was not a covered person because no timely notice of claim was filed and no leave for late filing was sought. The failure to comply with Insurance Law § 5208 (a) and (c) defeated covered-person status under Insurance Law § 5221 (b) (2). A condition precedent to the provider's right to apply for payment of assigned no-fault benefits therefore remained unsatisfied. The Appellate Term, Second Department, reversed the order denying MVAIC's motion for summary judgment and granted the motion dismissing the complaint.
Appellate Term, First Department
Aug 24, 2012
2012 NY Slip Op 51588(U)
Provider prevailed
MVAIC's summary judgment motion was denied because it failed to establish that the assignor was not a qualified person entitled to no-fault coverage. The Appellate Term, First Department, affirmed, relying on MVAIC's failure to meet its initial burden, which required denial irrespective of the sufficiency of the provider's opposition.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51653(U)
Insurer prevailed
The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue. The scheduling entity's employee established timely mailing of the IME letters, the examining chiropractor/acupuncturist confirmed nonappearance, and the insurer's litigation examiner established timely denials on that ground. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that proof established the insurer's entitlement to judgment. The provider submitted only a counsel affirmation that raised no triable issue. 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 reaching any other issue.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51654(U)
Insurer prevailed
The insurer established full payment under the applicable acupuncture fee schedule and unrebutted lack of medical necessity for other claims. Its moving papers proved timely mailing of the denials. For the fee-schedule claims, the insurer showed payment of the amounts allowed for acupuncture services rendered by a chiropractor, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. For the remaining claims, its acupuncturist's sworn IME report established lack of medical necessity, and the provider's acupuncturist failed to meaningfully address the conclusions. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, upholding summary judgment for the insurer and denial of the provider's cross motion.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51655(U)
Split result
The insurer proved timely denials and lack of medical necessity for four claims, but failed to prove timely denials of two others. The provider appealed the grant of the insurer's cross motion for summary judgment dismissing its assigned no-fault action. A claims employee's affidavit established timely mailing of denials for two claims and the unpaid portions of two partially paid claims. Affirmed peer review and IME reports supported the medical-necessity defense, which the provider did not rebut. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal only of those two claims and unpaid portions, leaving the other two claims pending because timely denial was not established.
Appellate Term, Second Department
Aug 24, 2012
2012 NY Slip Op 51658(U)
Insurer prevailed
The provider's medical affirmation failed to rebut the insurer's IME and peer review conclusions that the disputed services were unnecessary. The insurer appealed the denial of summary judgment on three claims for assigned no-fault benefits. Its affirmed reports each supplied a factual basis and medical rationale for finding a lack of medical necessity. The provider's doctor did not meaningfully address either report's conclusions, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment on those claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the three claims.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51649(U)
Provider prevailed
An insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim. The insurer acknowledged receiving the provider's two claims, and neither was paid or denied within 30 days. Its letters merely advised that it was investigating and obtaining verification, including EUOs. Under Nyack Hosp. v Encompass Ins. Co., those letters did not toll the deadline. The insurer therefore failed to establish timely denials or that its medical-necessity defense was not precluded. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer's summary judgment cross motion, and denied that cross motion.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51643(U)
Insurer prevailed
The provider failed to show that its hit-and-run assignor met the 24-hour accident-report requirement or qualified for an exception. Under Insurance Law § 5221 (b) (2), no-fault coverage through MVAIC requires qualification under Insurance Law § 5202 (b) and compliance with article 52. Insurance Law § 5208 (a) (2) (A) requires timely reporting, subject to the reasonable-possibility exception in Insurance Law § 5208 (a) (2) (B). MVAIC's claims examiner stated that repeated requests produced no proof of an accident report. The provider supplied neither evidence of compliance nor a showing that reporting was not reasonably possible. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51647(U)
Insurer prevailed
An insurer moving for summary judgment need not attach the provider's bills to its motion. The provider appealed the grant of the insurer's cross motion dismissing its action for assigned first-party no-fault benefits, raising only the omission of the bills and timely mailing. Following Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., the Appellate Term, Second Department, rejected the attachment argument and found that the insurer established timely mailing of the verification requests and denials. The court affirmed the order granting the insurer summary judgment.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51638(U)
Provider prevailed
The provider's doctor's affidavit raised a triable issue of medical necessity in response to the insurer's peer review report. The insurer cross-moved for summary judgment dismissing the provider's action for assigned no-fault benefits. Its affirmed peer review report supplied a factual basis and medical rationale for the opinion that the services lacked medical necessity. The provider's opposing affidavit sufficiently demonstrated a factual dispute, requiring denial of the cross motion under Zuckerman v City of New York. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51639(U)
Provider prevailed
The insurer's cross motion for summary judgment based on lack of medical necessity was denied for failure to prove timely denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on the insufficiency of the insurer's affidavit. The insurer had not demonstrated that its medical-necessity defense was not precluded.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51640(U)
Provider prevailed
The treating chiropractor's affidavit raised a triable issue as to the medical necessity of the provider's services. The insurer appealed the denial of its motion for summary judgment dismissing the action for assigned no-fault benefits. Following Ozone Park Chiropractic v Clarendon Natl. Ins. Co., the court found no basis to disturb the denial because the provider's medical evidence demonstrated a factual dispute. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51641(U)
Insurer prevailed
The provider's action was premature because timely verification requests remained unanswered when the action began. The insurer's litigation supervisor established timely mailing of initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). The insurer showed that it had not received the requested verification, and the provider failed to show that it had supplied it before commencing suit. Accordingly, the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51642(U)
Provider prevailed
The insurer failed to prove timely denial because its claims representative's affidavit was not evidence in admissible form. The insurer sought summary judgment dismissing the provider's assigned no-fault claim based on the assignor's alleged misrepresentation of residence when the policy was issued. The provider challenged the affidavit's admissibility under Real Property Law § 299-a (1). Without admissible proof of a timely denial, the insurer did not establish that its residence-misrepresentation defense was not precluded. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51644(U)
Insurer prevailed
The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters. The chiropractor/acupuncturist designated to perform the IMEs established nonappearance, and the insurer's claims examiner demonstrated timely denial on that ground. This proof entitled the insurer to summary judgment dismissing the assigned no-fault action. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51645(U)
Insurer prevailed
The provider's notice of trial was vacated because discovery remained outstanding, and its untimely discovery objections required production. The provider certified that discovery was complete despite unanswered demands. The insurer's motion to vacate was timely under CPLR 2103 (b), (c) and 22 NYCRR 208.17 (c). The provider also failed to challenge the CPLR 3120 demand within the time prescribed by CPLR 3122, limiting objections to palpably improper or privileged matters; neither exception was asserted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, vacating the notice, compelling responses to all outstanding demands, and denying the provider's summary judgment motion as premature.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51646(U)
Provider prevailed
The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports. The insurer sought summary judgment dismissing an action for assigned no-fault benefits based on lack of medical necessity. Its two affirmed peer review reports supplied a factual basis and medical rationale for that defense, but the provider's opposing medical affidavit demonstrated a question of fact. The provider conceded that the denials were timely, leaving medical necessity as the sole issue on appeal. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, Second Department
Aug 23, 2012
2012 NY Slip Op 51648(U)
Provider prevailed
The insurer failed to establish that the providers were parties to, or in privity with a party to, an earlier arbitration. Two providers' consolidated no-fault actions were dismissed at the outset of a nonjury trial on collateral-estoppel grounds. The insurer relied on an award finding that a third provider had not established timely notice within 90 days under former 11 NYCRR 65.11 (m) (2). Collateral estoppel applies only against a party or privy to the earlier proceeding, and the required relationship was not demonstrated. The Appellate Term, Second Department, reversed the judgment, vacated the dismissal order, denied the insurer's motion, and remitted the matter for further proceedings.
Appellate Term, First Department
Aug 14, 2012
2012 NY Slip Op 51534(U)
Provider prevailed
MVAIC bears the burden of establishing that a provider's assignors are not qualified persons based on lack of New York residency. MVAIC sought summary dismissal under Insurance Law § 5202 (b), but submitted no evidentiary proof that the assignors resided outside the state. Its papers included neither the notice of intention to make claim forms supplied under Insurance Law § 5208 nor a sworn denial that those forms stated New York residences. Following Matter of MVAIC v Interboro Med. Care & Diagnostic PC, the Appellate Term, First Department, rejected the contention that the provider had to establish qualification and affirmed the denial of MVAIC's summary judgment motion.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51628(U)
Insurer prevailed
The insurer's attorney affirmation established the assignor's EUO nonappearance through the law firm's appearance-recording procedures. The majority found that affidavits established timely mailing of EUO scheduling letters and the denial, and the managing no-fault attorney's affirmation demonstrated failure to attend either scheduled EUO. Under 11 NYCRR 65-1.1, appearance was a condition precedent to policy liability. The provider raised no triable issue. The Appellate Term, Second Department, reversed the order and granted the insurer's summary judgment motion dismissing the complaint; a dissent found the nonappearance proof inadmissible under CPLR 4518 (a) because the attorney lacked personal knowledge, compliance with office procedures was not established, and the computer notation was not produced.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51624(U)
Provider prevailed
An assignor's status as a qualified person under Insurance Law § 5202 (b) does not depend on MVAIC's receipt of a household affidavit. MVAIC had received a sworn notice of intention to make claim under Insurance Law § 5208, but opposed payment because the assignor had not supplied the affidavit. That omission did not defeat the provider's entitlement to summary judgment for assigned first-party no-fault benefits. The Appellate Term, Second Department, affirmed the provider's judgment entered upon the order granting its motion and denying MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51623(U)
Split result
The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others. The provider sought summary judgment on six claims. Under Insurance Law § 5106 (a), it failed to establish its prima facie case on five; on the sixth, the insurer raised a factual issue concerning a timely fee-schedule denial. The insurer proved timely denials and unrebutted lack of medical necessity through an affirmed IME report for three claims, but did not conclusively establish fee-schedule and unmet-deductible defenses for the remainder. The Appellate Term, Second Department, reversed the provider's judgment, denied its motion entirely, and granted the insurer's cross motion only as to the three medical-necessity claims, leaving the remaining claims pending.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51632(U)
Insurer prevailed
A provider that knows the offending vehicle owner's identity must exhaust remedies against that owner before seeking benefits from MVAIC. The provider and assignor knew who owned the vehicle that struck the vehicle in which the assignor was allegedly a passenger. The provider did not demonstrate exhaustion of remedies against that owner, as required under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting the provider summary judgment and denying MVAIC's cross motion, denied the provider's motion, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51625(U)
Insurer prevailed
A provider must exhaust remedies against a known offending vehicle owner before seeking assigned no-fault benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the assignor. Following Hauswirth v American Home Assur. Co., the provider was required to exhaust remedies against that owner, but did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order denying MVAIC's motion for summary judgment and granted the motion dismissing the complaint.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51629(U)
Insurer prevailed
The insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional. The insurer supported its summary judgment motion with an affirmed IME report supplying a factual basis and medical rationale for the doctor's conclusion. That showing shifted the burden to the provider, which failed to offer medical evidence in opposition. The insurer also established timely mailing of its denial. The Appellate Term, Second Department, reversed the order of the District Court, Nassau County, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 7, 2012
2012 NY Slip Op 51630(U)
Insurer prevailed
The insurer proved IME nonappearance as to two bills and lack of medical necessity as to another, without a triable issue in opposition. The scheduling service's president established timely mailing of IME requests through standard office procedures, and the examining chiropractor established the assignor's nonappearance. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance was a condition precedent to coverage, supporting denial of two bills. An affirmed peer review report supplied a factual basis and medical rationale for denying the remaining bill. Timely denials had already been found below. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51498(U)
Provider prevailed
MVAIC failed to establish lack of New York residency where its own submissions included sworn documents stating the assignor's Brooklyn address. MVAIC sought summary judgment on the ground that the assignor was not a qualified person under Insurance Law § 5202 (b). Its motion included a sworn notice of claim under Insurance Law § 5208 and a requested household affidavit, both giving the same residence. The assertion that those documents were insufficient and further documentary proof was required was conclusory and lacked merit. The Appellate Term, Second Department, reversed the order granting MVAIC summary judgment dismissing the complaint and denied its motion.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51490(U)
Split result
An insurer's medical expert may testify without having prepared the peer review, but must stay within the denial's stated basis. At a nonjury trial limited to medical necessity, the Civil Court permitted the insurer's expert to testify on the first cause of action but precluded testimony on the second because the expert had not authored the peer review. The Appellate Term, Second Department, upheld the finding for the provider on the first claim: the trial court could reject an uncontradicted expert opinion after cross-examination. It reversed the judgment and remitted for a new judgment for the provider on that claim, with statutory interest and attorney's fees, and a new trial on the second claim because preclusion was erroneous.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51500(U)
Insurer prevailed
The assignor was not a covered person because no timely notice of claim was filed with MVAIC and no leave for late filing was sought. MVAIC established the failure to comply with Insurance Law § 5208 (a) and (c). Under Insurance Law § 5221 (b) (2), that failure left unsatisfied a condition precedent to the provider's right to seek payment of assigned no-fault benefits. The Appellate Term, Second Department, reversed the order granting the provider's summary judgment motion and denying MVAIC's cross motion, denied the provider's motion, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51492(U)
Split result
MVAIC failed to excuse its late answer, while the provider failed to supply personal-knowledge proof supporting a default judgment. The Appellate Term, Second Department, modified the order to deny MVAIC's cross motion to open its default and compel acceptance of its late answer, and otherwise affirmed the denial of the provider's motion. MVAIC's claims representative did not explain the failure to answer timely, leaving no reasonable excuse for the default. The provider relied on counsel's affirmation and an attorney-verified complaint without establishing counsel's personal knowledge of the facts, which was insufficient for a default judgment under CPLR 3215 (f).
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51491(U)
Insurer prevailed
A provider aware of the offending vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider sought assigned first-party no-fault benefits for an assignor allegedly riding in a vehicle struck by another vehicle. Both the provider and assignor knew the other vehicle owner's identity. Following Hauswirth v American Home Assur. Co., the provider was required to pursue available remedies against that owner but did not demonstrate exhaustion. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51485(U)
Insurer prevailed
The provider's action was dismissed because the record did not show authorization after its sole corporate principal died. The provider's sole officer, director, and shareholder died before commencement of the action for assigned no-fault benefits. Under Business Corporation Law §§ 1507 and 1511 and the authorities concerning corporate authorization and decedents' estates, the record did not demonstrate that someone with authority had authorized the action. The Appellate Term, Second Department, reversed the Civil Court's order, insofar as appealed from, and granted the branch of the insurer's motion seeking dismissal of the complaint.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51486(U)
Split result
The insurer failed to prove that IME scheduling letters were mailed to the assignor, defeating summary judgment on its nonappearance defense. The Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. Because the insurer did not establish mailing of the scheduling letters, it failed to demonstrate noncompliance with a condition precedent to coverage under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion while affirming denial of the provider's motion under Westchester Med. Ctr. v Nationwide Mut. Ins. Co.; it did not reach the provider's remaining contentions.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51489(U)
Provider prevailed
The insurer failed to establish timely denial of the claim and its entitlement to assert the assignor's IME nonappearance. In the provider's action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint. Its supporting affidavit did not establish timely denial of the claim. Following Presbyterian Hosp. in City of NY v Maryland Cas. Co., the insurer failed to demonstrate that it was not precluded from raising the IME nonappearance defense. The Appellate Term, Second Department, affirmed the Civil Court's order denying the insurer's motion.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51493(U)
Insurer prevailed
The insurer's summary judgment motion on claims denied for EUO nonappearance was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the insurer's affidavits sufficient to establish timely and proper mailing of the EUO scheduling letters and denial forms. The provider's remaining contentions were rejected without further explanation.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51494(U)
Provider prevailed
The insurer failed to establish timely denial of the claims and its entitlement to rely on the assignor's IME nonappearance. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits. Its supporting affidavit did not establish that the claims had been timely denied. Following Presbyterian Hosp. in City of NY v Maryland Cas. Co., the insurer therefore failed to show that it was not precluded from asserting the IME nonappearance defense. The Appellate Term, Second Department, affirmed the Civil Court's order denying the insurer's motion.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51495(U)
Provider prevailed
The insurer failed to show that the provider knew the terms of a TRO barring commencement of its no-fault action. The Civil Court granted dismissal under CPLR 3211 (a) (1) and (4) because the action allegedly violated a TRO issued in another action involving both parties. The provider had not been served with the TRO when it commenced this action, and the insurer offered no proof of actual or imputed knowledge of its terms. The insurer's assertion on appeal that the provider's attorney knew a TRO was being sought was outside the record. The Appellate Term, Second Department, reversed the judgment, vacated the dismissal order, and denied the insurer's motion.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51496(U)
Insurer prevailed
A provider that fails to seek a default judgment within one year must show a reasonable excuse and a meritorious complaint to avoid abandonment. The insurer defaulted in the provider's action for assigned no-fault benefits and, more than two years later, moved to dismiss under CPLR 3215 (c). The provider did not oppose the motion. Under that provision, dismissal is required when a plaintiff fails to initiate default judgment proceedings within one year and does not make the necessary showing. The Appellate Term, Second Department, reversed the Civil Court's order denying the motion and granted dismissal of the complaint as abandoned.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51497(U)
Insurer prevailed
The insurer established timely mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, the Civil Court denied the insurer's cross motion for summary judgment, leaving the IME nonappearance defense for trial. An employee of the scheduling entity described standard office mailing practices, and the examining doctors supplied affidavits establishing nonappearance. 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 dismissing the complaint.
Appellate Term, Second Department
Aug 6, 2012
2012 NY Slip Op 51502(U)
A physician's deposition may be used at trial without proof of unavailability, subject to a motion for protection against abuse. Under CPLR 3117 (a) (4), the insurer sought to introduce its doctor's deposition at a nonjury trial limited by stipulation to medical necessity, with the insurer bearing the burden of going forward. The Civil Court excluded the transcript and directed judgment for the provider, although the record showed no CPLR 3103 protective-order motion. The Appellate Term, Second Department, found an abuse of discretion, reversed the judgment, and remitted the matter for a new trial limited to medical necessity.
Trial court, Second Department
Aug 17, 2012
2012 NY Slip Op 22242
Provider prevailed
The provider proved mailing of requested verification, and the insurer's conclusory denial of receipt raised no triable issue. The insurer sought summary judgment on the ground that the MRI claim was premature because verification remained outstanding. The provider's billing supervisor attested to personally mailing the MRI films and requested information, supported by a certificate of mailing. The affidavit also established business records, and the insurer's verification request acknowledged timely receipt of the claim. The District Court, Nassau County, denied the insurer's motion and, searching the record under CPLR 3212 (b), granted the provider summary judgment. The provider established timely submission, compliance with verification requests, and failure to pay or deny within 30 days after receipt of verification under 11 NYCRR 65-3.8 (a) (1).
Trial court, Second Department
Aug 16, 2012
2012 NY Slip Op 51614(U)
Insurer prevailed
Chiropractors may not perform manipulation under anesthesia under New York's statutory definition of chiropractic practice. The Civil Court, Richmond County, dismissed both providers' actions after a joint trial, applying Education Law § 6551 (1), (3) despite the procedures having been performed in New Jersey. The insurer's credible expert testimony established that further chiropractic care was unnecessary, and the providers failed to rebut it or establish accident-related injuries and physician screening before the procedures. An education department letter could not expand the statutory scope of practice. Alternatively, even if the procedures were necessary, reimbursement was limited to 68.4% of the relative value unit allowed for physicians under the workers' compensation fee schedule.
