Appellate Term, First Department
Dec 27, 2012
2012 NY Slip Op 52363(U)
Insurer prevailed
The insurer proved timely and proper mailing of IME notices and the assignor's nonappearance, warranting dismissal. In the provider's action for assigned no-fault benefits, the insurer established that it mailed the notices to the assignor and the assignor's attorney. The provider did not deny nonappearance or raise a triable issue concerning nonappearance, mailing, or the notices' reasonableness. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.
Appellate Term, First Department
Dec 24, 2012
2012 NY Slip Op 52351(U)
Insurer prevailed
The provider's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status. The assigned no-fault claims had been timely denied. The record raised questions whether the billed amounts properly reflected the provider's apparent status as a surgical facility or exceeded governing fee schedule rates. The provider waived any claimed defect in the insurer's adjuster affidavit by failing to contest its admissibility. Its new reply arguments, even if properly considered, did not eliminate all triable factual issues. The Appellate Term, First Department, affirmed denial of the provider's cross motion, leaving the insurer's fee schedule defense for resolution.
Appellate Term, First Department
Dec 24, 2012
2012 NY Slip Op 52354(U)
Insurer prevailed
The insurer established timely and proper IME and EUO notices and the assignor's nonappearance, warranting dismissal. The provider sought assigned no-fault benefits, and the insurer appealed the portion of an order denying part of its summary judgment motion. The insurer proved mailing of both types of notices to the assignor and failure to appear. The provider did not specifically deny nonappearance or raise a triable issue concerning it, mailing, or the notices' reasonableness. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's motion in full, and dismissed the complaint.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52400(U)
Provider prevailed
The insurer's demand for an EBT on independent contractor treatment was improper because its denials omitted that defense. In the provider's action for assigned no-fault benefits, the Civil Court compelled an EBT limited to the relationship between the provider and the treating acupuncturists. The insurer alleged that the acupuncturists were independent contractors rather than employees, making the provider ineligible for reimbursement. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, found the insurer precluded from asserting that omitted ground and the related discovery demand palpably improper. It reversed the order, insofar as appealed from, and denied the branch of the insurer's motion seeking the EBT.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52404(U)
Provider prevailed
The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion. The provider obtained summary judgment, and the insurer's cross motion was denied. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), the insurer had to establish timely mailing of initial and follow-up EUO letters concerning the provider's owner. Its deficient proof did not establish tolling of the 30-day determination period under 11 NYCRR 65-3.8 or timely denials. The Appellate Term, Second Department, affirmed the provider's judgment, without passing on its prima facie showing because the insurer raised no appellate issue concerning that showing.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52405(U)
Split result
The insurer's unrebutted peer review supported dismissal of the supply claims except the thermophore claim, which it conceded was payable. The provider appealed denial of its summary judgment motion and dismissal of its complaint on the insurer's cross motion. The affirmed peer review supplied a factual basis and medical rationale for finding the other supplies unnecessary but found the thermophore medically necessary. The provider submitted no doctor's affirmation rebutting the report and raised no triable issue concerning the other supplies. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the thermophore claim and deny the insurer's cross motion as to that claim, while affirming dismissal of the remaining claims.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52399(U)
Insurer prevailed
The provider's affidavit failed to establish that its supporting documents proved the fact and amount of the loss sustained. A provider's prima facie showing requires claim submission, proof of the loss and its amount, and either nonpayment or denial beyond 30 days or a timely denial that is conclusory, vague, or legally meritless under Insurance Law § 5106 (a). The affidavit did not establish the requisite evidentiary basis for the annexed documents under CPLR 4518. The Appellate Term, Second Department, affirmed denial of the provider's motion for summary judgment.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52396(U)
Insurer prevailed
The provider's action was premature because timely verification requests remained unanswered. The insurer's claim specialist affidavit established timely mailing of initial and follow-up requests and the provider's failure to respond; the provider never alleged a response. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny therefore had not begun. 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, in effect, for summary judgment dismissing the complaint. The court expressly reached no other issue.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52397(U)
Provider prevailed
The insurer failed to establish timely EUO requests and tolling of its time to pay or deny the provider's claims. Seeking summary judgment dismissing the assigned no-fault claims, the insurer relied on the provider's principal's failure to appear for an EUO. It did not show that its initial and follow-up requests were timely sent under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Consequently, it failed to establish that the EUO defense was not precluded and was not entitled to summary judgment. The Appellate Term, Second Department, affirmed denial of the insurer's motion, leaving the provider's action pending.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52398(U)
Neither party established entitlement to summary judgment on the claims reviewed after reargument. The insurer's litigation examiner affidavit failed to establish timely mailing of the denial forms, defeating its motion to dismiss the complaint. The provider likewise failed to show untimely denials or denials that were conclusory, vague, or without merit as a matter of law, as required for its prima facie showing under Insurance Law § 5106 (a). The Appellate Term, Second Department, dismissed the appeal from the superseded original order and modified the reargument order, insofar as reviewed, to deny the provider's cross motion on the first four causes of action. Denial of the insurer's summary judgment motion remained in place.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52406(U)
Insurer prevailed
The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement. The Civil Court awarded the provider summary judgment after treating the denials as nullities under 11 NYCRR 65-3.8 (c) (1). Affidavits established timely mailing of IME scheduling letters, nonappearance, and timely mailing of denials to the provider, assignor, and assignor's attorney. The provider offered no argument explaining why those mailings failed to satisfy the duplicate requirement and raised no triable issue. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52407(U)
Insurer prevailed
The provider's renewal motion failed because Excel Imaging, P.C. v MVAIC did not change the law on duplicate denial forms. The prior order found the provider's prima facie case and the insurer's timely denials established, leaving medical necessity for trial. The provider sought renewal under CPLR 2221 (e) (2), arguing that Excel Imaging created a new requirement to issue denial forms in duplicate. Citing 11 NYCRR 65-3.8 (c) (1) and New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., the Appellate Term, Second Department, rejected that asserted change in law and affirmed denial of renewal in the insurer's favor.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52409(U)
Insurer prevailed
The provider's billing affidavit failed to establish overdue claims or timely denials that were legally deficient. In an action for assigned no-fault benefits, the provider appealed the denial of its summary judgment motion. Under Insurance Law § 5106 (a), the billing manager's affidavit did not establish either that the insurer failed to pay or deny the claims within 30 days or that timely denials were conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the insurer's favor and expressly reached no other issue.
Appellate Term, Second Department
Dec 21, 2012
2012 NY Slip Op 52411(U)
Insurer prevailed
The providers' summary judgment motion was denied because they failed to demonstrate prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed the order in the action to recover assigned no-fault benefits, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without further explanation.
Appellate Term, Second Department
Dec 20, 2012
2012 NY Slip Op 52388(U)
Insurer prevailed
The insurer established that the assignor's injuries did not arise from an insured incident, and the provider's records raised no triable issue. The insured's affidavit stated that the assignor jumped onto a parked car's hood, got off without incident or injury, and had no further contact with the car. The provider opposed summary judgment with police and hospital records. The police report lacked certification or foundation under CPLR 4518 (c) and contained inadmissible hearsay. The hospital records lacked foundation under CPLR 4518 (a) and (c) and did not rebut the insured's account or establish the insured's involvement. 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
Dec 20, 2012
2012 NY Slip Op 52387(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed the order in the assigned no-fault benefits action, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without explaining the deficiency in the provider's showing.
Appellate Term, Second Department
Dec 20, 2012
2012 NY Slip Op 52391(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed the order in the assigned no-fault benefits action, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without explaining the deficiency in the provider's showing.
Appellate Term, Second Department
Dec 18, 2012
2012 NY Slip Op 22379
Split result
A hospital seeking no-fault benefits must prove the fact and amount of loss; prescribed hospital claim forms are not inherently more reliable. The hospital failed to establish its NF-5, UB-04, and DRG report as admissible business records under CPLR 4518 (a), as required to prove loss under Insurance Law § 5106 (a). Counsel and a billing-company employee claimed no knowledge of the records' truth. The court left open whether CPLR 4518 (b) applies to a hospital suing as assignee; even assuming applicability, the required certification was missing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the hospital summary judgment, but declined the insurer's request to search the record and dismiss the complaint.
Appellate Term, Second Department
Dec 13, 2012
2012 NY Slip Op 52315(U)
Provider prevailed
The provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review. In the assigned no-fault benefits action, the insurer sought summary judgment dismissing the complaint and the provider cross-moved for summary judgment. The Civil Court found both parties' prima facie cases established and limited trial to medical necessity. Although the insurer's sworn peer review supplied a factual basis and medical rationale for finding the chiropractic services unnecessary, the provider's opposing affidavit sufficiently disputed that conclusion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion and preserving the medical necessity issue for trial.
Appellate Term, First Department
Dec 11, 2012
2012 NY Slip Op 52236(U)
Insurer prevailed
The provider failed to raise a factual issue as to timely submission of its no-fault claim or reasonable justification for its delay. The insurer established entitlement to summary judgment under 11 NYCRR 65-1.1 and 65-3.3 (d) and (e). The provider's employee lacked personal knowledge of mailing and described office mailing procedures only generally. A certified mail receipt bearing two different postmarks and a file number unrelated to the claim did not establish actual mailing. The provider also offered no proof of reasonable justification for untimely notice. The Appellate Term, First Department, reversed the order, granted the insurer's motion, and dismissed the complaint.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52260(U)
Split result
The insurer's EUO defense failed on five untimely denied claims but supported dismissal of six claims that were timely denied. Five claims remained unpaid and undenied beyond 30 days under 11 NYCRR 65-3.8 (a) (1), with no EUO requested or pending during that period. The insurer failed to establish that its condition-precedent defense escaped preclusion. For six claims, timely EUO letters tolled the deadline, the provider missed both scheduled EUOs, and timely denials followed. Its complete failure to respond foreclosed review of the requests' reasonableness. The Appellate Term, Second Department, reversed the judgment and vacated the portions of the order granting the provider summary judgment and denying the insurer dismissal on those six claims, granting the insurer dismissal while preserving the provider's award on the five claims.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52263(U)
Insurer prevailed
The insurer proved that its denial was issued in duplicate, resolving the sole issue left by its unopposed summary judgment motion. The Civil Court denied the motion but found the insurer otherwise entitled to judgment and limited trial to duplicate issuance. The supporting affidavit established that the denial had been issued in duplicate. Because the provider had not opposed the motion, it could 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 motion for summary judgment dismissing the assigned no-fault benefits complaint.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52274(U)
Insurer prevailed
The provider's action was premature because unanswered verification requests tolled payment time, and a general denial did not address its bill. The insurer's litigation examiner established timely mailing of initial and follow-up verification requests and nonreceipt of the requested verification. The provider did not rebut that showing under 11 NYCRR 65-3.8 (a). Its opposing denial form omitted the bill's amount and date, the service provider, and the services rendered; it identified an applicant other than the provider and expressly stated that the applicant was not an assignee. The provider therefore failed to prove a denial of the particular bill. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52259(U)
Split result
The insurer's EUO defense failed on two untimely denied claims but supported dismissal of a third claim that was timely denied. Two claims were neither paid nor denied within 30 days under 11 NYCRR 65-3.8 (a), and the insurer claimed no EUO request or pending EUO during that period. It therefore failed to establish that its condition-precedent defense escaped preclusion. For the third claim, timely EUO letters tolled the deadline, the provider missed both scheduled EUOs, and the denial was timely. The provider's complete failure to respond foreclosed review of the requests' reasonableness. The Appellate Term, Second Department, modified the order to deny the provider summary judgment and grant the insurer dismissal on the third claim, otherwise affirming summary judgment for the provider.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52262(U)
Insurer prevailed
The insurer's peer review and IME reports established lack of medical necessity, and the provider failed to rebut their conclusions. The provider sought assigned first-party no-fault benefits, and the Civil Court denied the insurer's summary judgment motion while directing a trial on medical necessity. The affirmed reports supplied factual bases and medical rationales for finding the services unnecessary. 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 summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 7, 2012
2012 NY Slip Op 52271(U)
Insurer prevailed
The provider's complaint was dismissed after it failed to show compliance with an order requiring a workers' compensation application. A prior order stayed the no-fault action and required proof within 90 days that the assignor had applied to the Workers' Compensation Board for a determination of the parties' rights under the Workers' Compensation Law. It provided for summary judgment dismissing the complaint upon noncompliance unless the provider showed good cause. In opposing the insurer's subsequent motion, the provider demonstrated neither an application nor good cause against dismissal. The Appellate Term, Second Department, affirmed the order granting the insurer's motion, in effect, for summary judgment dismissing the complaint.
Appellate Term, First Department
Dec 6, 2012
2012 NY Slip Op 52210(U)
Provider prevailed
MVAIC failed to establish that the disputed assignor was not a qualified person or that insurance covered the vehicle at the time of the accident. MVAIC's own proof included a denial from the putative insurer stating that the vehicle in which the assignor rode was uninsured on the accident date. The assignor's apparent failure to provide a household affidavit was also not shown to defeat the claim, because the record did not indicate a timely objection to the claim form or timely verification request. The Appellate Term, First Department, affirmed denial of MVAIC's motion for summary judgment dismissing the claim relating to that assignor.
Trial court, Second Department
Dec 26, 2012
2012 NY Slip Op 52375(U)
Insurer prevailed
Chiropractors cannot recover New York no-fault benefits for manipulation under anesthesia classified as unauthorized surgery. After a joint trial concerning procedures performed in New Jersey, the Civil Court, Richmond County, dismissed both providers' actions and entered judgment for the insurer. Applying Willets Point Chiropractic PC v Allstate Insurance and the Education Law's scope of chiropractic practice, it also found knee manipulation unauthorized. The providers failed to establish proper fee reductions or sufficient causation linking the procedure to the accident. The court nevertheless found the insurer's peer review deficient because essential treatment records were withheld, stating that recovery would be warranted if the procedure became authorized. Under CPLR 1001, it required insurers to consolidate related procedure claims for joint trial or report their status and seek a stay.
Trial court, Second Department
Dec 26, 2012
2012 NY Slip Op 52423(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials and the assignor's failure to appear for EUOs. The Civil Court, Kings County, granted the insurer summary judgment dismissing the complaint with prejudice and denied the providers' cross motion. Detailed affidavits established office mailing procedures and nonappearance, while counsel's opposing affirmation lacked personal knowledge and raised no triable issue. The court disregarded defects in captions and sworn statements under CPLR 3026 because the providers showed no prejudice. It also rejected challenges concerning a missing notice and the affiants' presence at particular locations, finding the remaining proof sufficient. Under 11 NYCRR 65-1.1 and 65-3.5 (c), compliance with requested EUOs was a condition precedent to recovery.
Trial court, Second Department
Dec 12, 2012
2012 NY Slip Op 22373
Insurer prevailed
The provider's failure to respond or object to verification requests rendered its action premature despite missing notice to its attorneys. Counsel submitted the claim and expressly requested that verification communications be sent to the firm. The insurer timely mailed requests for a letter of medical necessity to the provider, whose receipt was undisputed, but sent copies only to the assignor and the assignor's attorneys. The omission of notice to provider counsel violated 11 NYCRR 65-3.6 (b) at least as to the follow-up request. Nevertheless, neither the provider nor counsel timely objected, and verification was never supplied. The District Court, Nassau County, denied the provider's summary judgment motion, granted the insurer's cross motion, and dismissed the action as premature.
