Appellate Division, Second Department
Sep 26, 2012
2012 NY Slip Op 06288
Insurer prevailed
The insurer's default was excused based on minimal delay, lack of prejudice or willfulness, and a potentially meritorious defense. The provider appealed an order vacating a clerk's judgment entered upon the insurer's failure to appear or answer and compelling acceptance of the insurer's answer. Applying CPLR 3012 (d) and CPLR 2004, the Appellate Division, Second Department, affirmed. Those circumstances, together with the policy favoring resolution on the merits, supported the Supreme Court's exercise of discretion.
Appellate Division, Second Department
Sep 26, 2012
2012 NY Slip Op 06294
Insurer prevailed
SUM benefits are reduced by a Dram Shop recovery under the standard endorsement's nonduplication provision. The claimants settled fatal-accident claims for $100,000 from the tortfeasor's automobile insurer and $255,000 from Dram Shop defendants. Under 11 NYCRR 60-2.3 (f), Condition 6 reduced the $500,000 per-accident SUM limit by the automobile liability payment, and Condition 11 (e) required a further reduction for the Dram Shop recovery. The nonduplication regulation was consistent with Insurance Law § 3420 (f) (2) (A). Exhausting one tortfeasor's liability limits permitted submission of a SUM claim but did not prevent reductions for additional recoveries. The Appellate Division, Second Department, reversed, denied the claimants' requested summary judgment and dismissal of affirmative defenses, and granted the insurer's cross motion limiting available SUM benefits to $145,000.
Appellate Term, Second Department
Sep 28, 2012
2012 NY Slip Op 51890(U)
Split result
The insurer raised a medical-necessity issue on one claim but failed to establish timely denial of the other assignor's claim. An affidavit established timely denial of the first claim, and an affirmed peer review warranted denial of provider summary judgment on that claim. For the other claim, the insurer's denial showed issuance more than 30 days after receipt, and the insurer demonstrated no proper tolling under 11 NYCRR 65-3.8. It therefore failed to establish that its defenses escaped preclusion. The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting provider summary judgment on the timely-denied claim, and denied that branch of the motion; summary judgment on the untimely-denied claim remained undisturbed.
Appellate Term, Second Department
Sep 19, 2012
2012 NY Slip Op 22278
Split result
An insurer may schedule an EUO outside the applicant's county if the place and time are reasonably convenient. Under 11 NYCRR 65-3.5 (e) and 65-1.1, EUO attendance is a coverage condition, and willful noncompliance need not be shown. The Appellate Term, Second Department, modified the order to deny the provider summary judgment on causes of action three through nine and otherwise affirmed. For those claims, timely EUO letters tolled the payment period, the doctors twice failed to appear, and denials were timely. Summary judgment remained granted on the first two claims because the insurer failed to establish timely denials; its delay letter did not toll the 30-day period. Precluded treatment and billing defenses supported neither compelled depositions nor relief under CPLR 3212 (f).
Appellate Term, First Department
Sep 19, 2012
2012 NY Slip Op 51802(U)
Insurer prevailed
Properly issued verification requests toll the insurer's 30-day period to pay or deny a no-fault claim until a response is received. At trial, the insurer established timely mailing of initial and follow-up requests to the provider's attorney, as authorized by counsel's prior correspondence, and the provider's failure to respond. Under 11 NYCRR 65-3.8 (a) (1), the Appellate Term, First Department, reversed the provider's judgment after a nonjury trial and awarded judgment dismissing the complaint. The litigation examiner's clear, consistent testimony about counsel's representation letter and the insurer's standard mailing procedure established proper mailing and an unrebutted presumption of receipt, despite the letter's absence from the record. The provider offered no countervailing evidence.
Appellate Term, Second Department
Sep 19, 2012
2012 NY Slip Op 51849(U)
Insurer prevailed
The insurer's affidavits established timely mailing of EUO notices and the denial, and the provider's failure to attend either EUO. In this action for assigned no-fault benefits, the provider challenged the insurer's proof supporting summary judgment dismissing the complaint. The Appellate Term, Second Department, deemed the appeal taken from the subsequently entered judgment under CPLR 5501 (c) and affirmed the dismissal. The court found the affidavits sufficient to establish both timely mailing and nonappearance at the duly scheduled EUOs. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at an EUO is a condition precedent to the insurer's liability under the policy.
Appellate Term, Second Department
Sep 13, 2012
2012 NY Slip Op 51825(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and denials, and the assignors' failure to attend the scheduled EUOs. Its affidavits defeated the provider's challenges to mailing and nonappearance. The provider did not claim that it or its assignors had responded in any way to the EUO requests, so its objections to those requests would not be heard. Its remaining contentions either lacked merit or were raised for the first time on appeal and were not properly before the court. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint upon the insurer's motion for summary judgment.
Appellate Term, Second Department
Sep 13, 2012
2012 NY Slip Op 51821(U)
Provider prevailed
The insurer failed to establish the assignor's intoxication at the time of the accident with sufficient admissible proof. The insurer denied the provider's claims on the ground that the assignor had operated a vehicle while intoxicated. To obtain summary judgment under Insurance Law § 5103 (b) (2) and Vehicle and Traffic Law § 1192 (2) and (3), it had to show that the assignor was injured as a result of such operation. Although Civil Court found intoxication and proximate causation, the proof did not establish intoxication as a matter of law. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer summary judgment, and denied that motion.
Appellate Term, Second Department
Sep 13, 2012
2012 NY Slip Op 51805(U)
Insurer prevailed
The insurer established timely denials and proper use of the chiropractic acupuncture fee schedule, defeating the provider's summary judgment. The provider sought assigned no-fault benefits for acupuncture services. In opposition to its motion, the insurer submitted a claims employee's affidavit establishing timely mailing of denials asserting that the charges exceeded the workers' compensation fee schedule and that the permitted amounts had been paid. Another employee's affidavit established that the insurer properly calculated reimbursement under the schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied the provider's motion.
Appellate Term, Second Department
Sep 13, 2012
2012 NY Slip Op 51815(U)
Insurer prevailed
The providers' affidavit failed to establish their prima facie entitlement to summary judgment on the unpaid no-fault bills. The providers appealed from the denial of their motion for summary judgment in an action to recover assigned benefits. Their supporting affidavit did not establish that the bills had not been timely denied or that any timely denials were conclusory, vague or without merit as a matter of law. Applying Ave T MPC Corp. v Auto One Ins. Co. and Westchester Med. Ctr. v Nationwide Mut. Ins. Co., the Appellate Term, Second Department, affirmed the order insofar as appealed from.
Appellate Term, Second Department
Sep 13, 2012
2012 NY Slip Op 51826(U)
Insurer prevailed
The insurer established that it had fully paid the disputed acupuncture claims under the workers' compensation fee schedule. The provider appealed the denial of summary judgment on claims billed under procedure code 97810 and the grant of the insurer's cross motion dismissing those claims. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, affirmed the judgment insofar as appealed from.
Appellate Term, First Department
Sep 11, 2012
2012 NY Slip Op 51754(U)
Insurer prevailed
The insurer established fraudulent procurement of coverage through the insured's false statement of residence on the insurance application. EUO transcripts showed that the insured listed a New York house owned by a parent while actually residing with the assignor and their child in a New Jersey apartment, which appeared on their tax returns. Residency required some permanence and intent to remain; mere intent to reside at an address was insufficient. The provider, standing in the assignor's shoes, raised no triable issue through conclusory testimony that the family lived in New Jersey only part time. The Appellate Term, First Department, reversed the order and granted the insurer summary judgment dismissing the no-fault complaint.
Appellate Term, First Department
Sep 11, 2012
2012 NY Slip Op 51756(U)
Insurer prevailed
The provider failed to respond to properly issued verification demands despite its biller's acknowledged receipt of a follow-up demand. The provider neither claimed nor showed any response to the insurer's demands, and its third-party biller did not explain its failure to act after receiving the follow-up request. The Appellate Term, First Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the no-fault action, also relying on the companion appeal decided the same day, No. 11-265.
Appellate Term, First Department
Sep 11, 2012
2012 NY Slip Op 51757(U)
Insurer prevailed
The third-party biller's conclusory denial of receipt did not rebut the insurer's proof of properly mailed verification demands. The insurer timely mailed initial and follow-up demands to the provider at the street address on its claim form. The provider did not meaningfully challenge the mailing procedures or deny its own receipt, but asserted nonreceipt by its biller, which used a designated suite at the same address. Even assuming the biller was an authorized representative under 11 NYCRR 65-3.5 (a) and (c), the provider did not show that omission of the suite number or any other cause prevented receipt; the court left that authorization question open. The Appellate Term, First Department, reversed the order and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 6, 2012
2012 NY Slip Op 51775(U)
Insurer prevailed
The insurer substantiated its fraudulent-incorporation allegations sufficiently to warrant disclosure and defeat summary judgment. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion to compel discovery under CPLR 3124. Relying on State Farm Mut. Auto. Ins. Co. v Mallela and Lexington Acupuncture, P.C. v General Assur. Co., the court found no improvident exercise of discretion in those rulings.
Appellate Term, Second Department
Sep 6, 2012
2012 NY Slip Op 51774(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. The assignor was therefore not a covered person under Insurance Law § 5221 (b) (2), because the requirements of Insurance Law § 5208 (a) and (c) remained unsatisfied. This defeated a condition precedent to the provider's right to seek no-fault payment. 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 dismissing the complaint; it reached no other issue.
Appellate Term, Second Department
Sep 5, 2012
2012 NY Slip Op 51768(U)
Insurer prevailed
The insurer established timely denials and lack of medical necessity through unrebutted affirmed peer review and IME reports. An employee's affidavit identified the office that mailed the denials and described its standard mailing practice, establishing timely mailing. Each medical report supplied a factual basis and medical rationale for the doctor's determination that the services were unnecessary. The provider failed to rebut that prima facie showing. The Appellate Term, Second Department, reversed the judgment awarding the provider assigned no-fault benefits, vacated the underlying order, denied the provider's summary judgment motion and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 5, 2012
2012 NY Slip Op 51772(U)
Insurer prevailed
The insurer established timely denials, full fee-schedule payment for certain acupuncture services and lack of necessity for the remaining services. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion and granted the insurer's cross motion for summary judgment dismissing the complaint. An employee's description of the mailing practice at the office that sent the denials established timely mailing. The insurer proved full payment for one group of services under the workers' compensation schedule for chiropractic acupuncture. For the remaining services, a licensed acupuncturist's sworn IME report supplied a factual basis and medical rationale for finding further treatment unnecessary. The treating acupuncturist's conclusory rebuttal failed to raise a triable issue.
Appellate Term, Second Department
Sep 5, 2012
2012 NY Slip Op 51765(U)
Insurer prevailed
The provider's challenge to facsimile signatures failed because the peer reviewers placed the signatures on their reports or directed their placement. The insurer established timely mailing of denials asserting lack of medical necessity and submitted three sworn peer review reports supplying factual bases and medical rationales for finding the supplies unnecessary. The provider did not rebut that showing but argued that electronic stamped facsimiles rendered the reports inadmissible. The record established placement by the reviewing doctors or at their direction. 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
Sep 5, 2012
2012 NY Slip Op 51770(U)
Insurer prevailed
The insurer's litigation examiner established timely mailing of the denial based on the assignor's failure to attend EUOs. Civil Court denied both sides' summary judgment motions, finding that the provider established its prima facie case and that the assignor failed to attend properly scheduled EUOs, but leaving denial timeliness for trial. On the insurer's appeal, the Appellate Term, Second Department, found the examiner's affidavit sufficient to establish timely mailing. The provider did not challenge Civil Court's finding that the insurer was otherwise entitled to judgment. The appellate court reversed the order insofar as appealed from and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 5, 2012
2012 NY Slip Op 51773(U)
Insurer prevailed
The provider's action was premature because timely verification requests remained unanswered when the action began. The insurer's affidavits established timely mailing of its initial and follow-up verification requests and nonreceipt of the requested material. The provider did not show that it had supplied verification before commencing its action for assigned no-fault benefits. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny the claims therefore had not begun to run. The Appellate Term, Second Department, reversed the order insofar as appealed from and granted the insurer's motion for summary judgment dismissing the complaint.
