Appellate Term, Second Department
Jan 30, 2013
2013 NY Slip Op 50218(U)
Insurer prevailed
The provider failed to establish its prima facie case at trial without proof of a timely sworn notice of intention to claim against MVAIC. The provider relied on a notice to admit for claim submission and nonpayment, called no witnesses, and offered no proof of timely notice to MVAIC. Under Insurance Law § 5208 (a), timely notice is a condition precedent to payment. Without compliance with Insurance Law article 52, the assignor was not shown to be a covered person under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the provider's nonjury judgment and remitted to the District Court for entry of judgment dismissing the complaint.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 23014
Insurer prevailed
An insurer defending on a completed Florida-law rescission need not prove the underlying misrepresentation. At a nonjury trial, the parties stipulated that the sole issue was whether the insurer had to establish its reason for rescission. The Appellate Term, Second Department, applied Florida law because Florida had the most significant contacts with the contracting party and contract. Under Florida Statutes Annotated § 627.409, the majority distinguished proving a preaction rescission from seeking a judicial decree: the insurer needed to show notice and return or tender of premiums within a reasonable time after discovering the grounds. Those matters were essentially conceded. The court reversed the provider's judgment and dismissed the complaint, reaching no other issue; a dissent would have required competent evidence of material misrepresentation and affirmed.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50063(U)
Split result
The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment. The psychologist could not affirm the report under CPLR 2106, and its notary stamp and signature lacked any attestation that the psychologist was sworn or appeared before the notary, failing CPLR 2309 (b). The insurer's motion was therefore properly denied despite proof of a timely denial. The provider showed nonpayment but did not establish an absent or legally insufficient denial, failing its prima facie burden under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the provider's cross motion and otherwise affirmed, leaving both sides without summary judgment.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50069(U)
Insurer prevailed
The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action. The provider showed nonpayment but failed to establish an absent or legally insufficient denial as required for summary judgment under Insurance Law § 5106 (a). The insurer proved timely initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b); the provider's nonresponse was uncontroverted, so the payment period had not commenced under 11 NYCRR 65-3.8 (a). Although the insurer had not cross-appealed, the Appellate Term, Second Department, searched the record and granted its cross motion for summary judgment. The order, insofar as appealed from, was modified to strike compelled discovery; the court passed on no other issue.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50059(U)
Split result
The insurer proved IME nonappearance for two claims but lacked proof of nonappearance or timely denial for the other three. For two claims, affidavits established timely scheduling and denials, and the examining physician's affirmation established the assignor's nonappearances; the provider did not rebut that showing. For a third claim, the insurer lacked an affidavit from someone with personal knowledge of the missed IMEs. It failed to establish timely denial of a fourth claim and conceded an untimely denial of the fifth. The Appellate Term, Second Department, modified the order to deny the provider summary judgment and grant the insurer dismissal on the first two claims, otherwise affirming the provider's awards; the uncontested provider prima facie case was not reviewed.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50062(U)
Insurer prevailed
The provider's release relinquished recovery on the appealed claims, requiring dismissal of its appeal. After the Civil Court granted the insurer summary judgment dismissing the complaint, the provider executed a release identifying the action and releasing claims arising from the assignment insofar as they concerned that action. Because the appealed claims were included in the complaint, the Appellate Term, Second Department, dismissed the appeal, relying on UCC 1-107.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50064(U)
Provider prevailed
The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion. The insurer established timely mailing of its denial and submitted a sworn peer review report providing a factual basis and medical rationale for finding the supplies unnecessary. That showing shifted the burden to the provider. In opposition, the provider's medical affidavit sufficiently demonstrated a question of fact concerning medical necessity. The Appellate Term, Second Department, reversed the judgment dismissing the assigned no-fault claim, vacated the portion of the order granting the insurer summary judgment, and denied the insurer's cross motion.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50065(U)
Insurer prevailed
The insurer's IME report established that the supplies lacked medical necessity, and the provider submitted no medical rebuttal. The insurer proved timely mailing of the denial and supplied an affirmed IME report stating a factual basis and medical rationale for the chiropractor's determination. The provider offered no affidavit or affirmation from a medical professional rebutting the report's conclusions and therefore failed to raise a triable issue. Its remaining contentions either lacked merit or were improperly raised for the first time on appeal. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint entered upon the insurer's summary judgment motion.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50066(U)
Insurer prevailed
The provider failed to raise a triable issue against an IME report establishing lack of medical necessity. The insurer's cross motion was supported by proof of timely mailing of its denials and an affirmed IME report giving a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider submitted no affidavit or affirmation from a medical professional rebutting the report's conclusions. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining the insurer's cross motion for summary judgment on the assigned no-fault claims.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50067(U)
Insurer prevailed
The insurer's IME report established lack of medical necessity, and the provider offered no medical affidavit or affirmation in rebuttal. In seeking summary judgment dismissing the assigned no-fault claims, the insurer proved timely mailing of its denials and submitted an affirmed IME report. The report provided a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider submitted no medical professional's affidavit or affirmation rebutting the report, and thus raised no triable issue. The Appellate Term, Second Department, affirmed the dismissal judgment entered after denial of the provider's motion and grant of the insurer's cross motion for summary judgment.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50068(U)
Insurer prevailed
The insurer's IME reports established lack of medical necessity, and the provider offered no medical affidavit or affirmation in rebuttal. The insurer supported its cross motion with proof of timely mailing of the denials and two affirmed IME reports. Each report supplied a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider's failure to submit a medical professional's affidavit or affirmation rebutting those conclusions left no triable issue. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, entered after denial of the provider's summary judgment motion and grant of the insurer's cross motion.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50070(U)
The provider's appeal from an order compelling discovery became academic after dismissal of the complaint. The insurer had moved to dismiss under CPLR 3126, and the Civil Court granted relief only to the extent of compelling the provider to respond to discovery demands in its assigned no-fault action. The Appellate Term, Second Department, dismissed the appeal because a subsequent Civil Court order dismissed the complaint.
Appellate Term, Second Department
Jan 14, 2013
2013 NY Slip Op 50071(U)
Insurer prevailed
The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response. The insurer established timely mailing of the scheduling letters and denials and the provider's failure to attend duly scheduled EUOs, a condition precedent under 11 NYCRR 65-1.1. The Civil Court gave notice before converting the insurer's CPLR 3211 dismissal motion into one for summary judgment under CPLR 3211 (c). Because the provider did not allege responding to the EUO requests in any way, its objections should not have been considered. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment.
Trial court, First Department
Jan 28, 2013
2013 NY Slip Op 50720(U)
Insurer prevailed
MVAIC's fee-schedule defense succeeded because publication was waived for the fees applied, each of which was below $100. The provider challenged partial reimbursement for acupuncture under schedules for physicians and chiropractors, asserting improper mailing and unconstitutional nonpublication. The Civil Court, New York County, found MVAIC's office practices established mailing without additional proof of actual mailing. Applying Insurance Law § 5108 (a) and State Administrative Procedure Act § 102 (2) (b) (xi) (2), it rejected the publication challenge under New York Constitution, article IV, § 8. It also rejected MVAIC's four-month objection under Workers' Compensation Law § 117 (2), questioning whether acupuncturists had notice of the applicable schedule. It granted MVAIC summary judgment, dismissed the complaint, and denied the provider's cross motion.
Trial court, Second Department
Jan 24, 2013
2013 NY Slip Op 50117(U)
Insurer prevailed
A default declaratory judgment bars relitigation of the same no-fault claims between the same parties. The District Court, Nassau County, granted the insurer summary judgment dismissing the provider's complaint based on a declaration that EUO and document-request defaults defeated reimbursement. Despite the pleading requirements of CPLR 3018 (b) and 3211 (e), the unpleaded preclusion defenses could be considered without surprise or prejudice, consistent with CPLR 104 and 3025 (b). Reading the declaratory complaint and judgment together established identity of claims; separate proof of requests concerning each bill was unnecessary. Partial payment of another bill before the alleged EUO defaults did not defeat preclusion. Res judicata applied to the default judgment.
Trial court, Second Department
Jan 15, 2013
2013 NY Slip Op 50045(U)
Insurer prevailed
The insurer established proper EUO requests, timely mailing, and the provider's nonappearances, defeating its no-fault claim. The investigation justified a treating-physician EUO under 11 NYCRR 65-3.5 (e) and 65-1.1; the provider waived location objections by not objecting. Detailed insurer and courier affidavits established timely mailing despite absent certified-mail receipts, and counsel established two nonappearances. The provider did not rebut receipt. Certificates of conformity were governed by CPLR 2309 (a) and (c), with Real Property Law § 299 (3) and § 311 (5), rather than CPLR 2106; defects were disregarded under CPLR 2001 absent prejudice. The Civil Court, Kings County, denied the provider's summary judgment cross motion, granted the insurer's motion, and dismissed the complaint with prejudice.
