Appellate Term, First Department
Feb 21, 2013
2013 NY Slip Op 50264(U)
Insurer prevailed
The provider's unsworn, conclusory chiropractor's report failed to rebut the insurer's showing that MRI tests lacked medical necessity. The insurer supported its timely denial with a chiropractor's sworn peer review supplying a factual basis and medical rationale for finding the tests medically unnecessary. The provider's opposing letter from the treating chiropractor lacked probative value under CPLR 2106. Even if considered, its conclusory findings did not raise a triable issue sufficient to defeat summary judgment. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Feb 20, 2013
2013 NY Slip Op 50307(U)
Split result
The insurer failed to prove timely mailing of IME scheduling letters and therefore failed to establish tolling of its claim deadline. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss. The provider's affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The insurer's papers, in turn, did not establish timely mailing of the IME letters as a matter of law. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the insurer's cross motion, and denied it, leaving the denial of the provider's motion intact.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50258(U)
Insurer prevailed
The insurer's IME nonappearance denials were timely because it issued them within 30 days after receiving requested written verification. Civil Court awarded the provider summary judgment on the second and third causes of action because denials followed the last IME nonappearance by more than 45 days. Timely initial and follow-up IME and written verification requests tolled the insurer's deadline under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The insurer denied within 30 days of receiving written verification, satisfying 11 NYCRR 65-3.8 (a). IME attendance was a condition precedent to liability, and the provider raised no factual issue. The Appellate Term, Second Department, reversed the judgment, granted the insurer summary judgment dismissing the second and third causes of action, and denied the provider's corresponding cross-motion branches.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50254(U)
Provider prevailed
The insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others. The provider's president established mailing and admissibility of the claim forms under CPLR 4518, proving the fact and amount of loss. For the first, second, third, and fifth through ninth causes of action, the insurer's papers showed untimely denials under 11 NYCRR 65-3.8 (a) (1). For the fourth and tenth, mere denial of receipt did not rebut the provider's mailing proof. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on all ten causes of action, otherwise affirmed, and remitted for statutory interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50252(U)
Insurer prevailed
The provider's medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review. The provider appealed from summary judgment dismissing its assigned no-fault claims for psychological testing. Its letter did not meaningfully address the insurer's psychologist's conclusions. The prior testimony established only that certain tests had utility in general, whereas the peer review found the tests unnecessary under this case's particular facts. That testimony therefore had no relevance to the report at issue. The Appellate Term, Second Department, affirmed the judgment for the insurer; the provider's remaining contentions lacked merit, were unpreserved, or both.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50256(U)
Insurer prevailed
The provider's denial of receipt did not rebut proof of timely mailed verification requests, and its unanswered claims were premature. The insurer's affidavits established timely mailing of initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The office manager's mere denial of receipt did not overcome the presumption of proper mailing and receipt. Because the provider had not responded before commencing this assigned no-fault action, the insurer's time to pay or deny had not begun to run under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50257(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 consequently was not a covered person under Insurance Law § 5221 (b) (2), because the requirements of Insurance Law § 5208 (a) and (c) had not been satisfied. A condition precedent to the provider's right to seek no-fault payment from MVAIC was therefore unmet. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion, and granted MVAIC's cross motion for summary judgment dismissing the complaint; it reached no other issue.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50247(U)
Insurer prevailed
The peer reviewers' facsimile signatures were placed by the doctors or at their direction, defeating the provider's admissibility objection. The insurer established timely mailing of denials based on lack of medical necessity. Its peer review reports and physician affirmations supplied a factual basis and medical rationale for finding the disputed supplies unnecessary, and the provider did not rebut that showing. The provider argued that electronic stamped signatures rendered the affirmations inadmissible, but the record established their placement by the physicians or at their direction. The Appellate Term, Second Department, affirmed the judgment entered after denial of the provider's motion and grant of the insurer's cross motion for summary judgment dismissing the complaint; the provider's remaining appellate contentions lacked merit.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50248(U)
Split result
The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion. The provider also sought a finding under CPLR 3212 (g) that its prima facie case was established. Its supporting affidavit, however, did not establish untimely denials or timely denials that were conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's motion dismissing the complaint and otherwise affirmed. The provider obtained denial of the insurer's motion but did not obtain the requested finding establishing its prima facie case.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50249(U)
Split result
Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others. The insurer proved duly scheduled IME nonappearances and timely denials for the first, fifth, and sixth causes of action, warranting dismissal under 11 NYCRR 65-1.1. Unanswered verification made the third, fourth, seventh, and ninth premature under 11 NYCRR 65-3.8 (a). The insurer did not address the second and eighth; the provider failed to prove untimely denials or denials that were conclusory, vague, or meritless as a matter of law. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion, and granted the insurer's cross-motion branches dismissing the seven specified causes, leaving both applications denied on the second and eighth.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50250(U)
Provider prevailed
The insurer failed to establish that EUO scheduling letters were mailed before the scheduled EUO dates, defeating summary judgment. In this assigned no-fault action, the insurer sought dismissal based on timely denials asserting the assignor's failure to attend duly scheduled EUOs. The missing proof of mailing before the scheduled dates defeated its entitlement to dismissal as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50251(U)
Insurer prevailed
The provider's first eight claims were dismissed for outstanding verification or the assignor's failure to attend duly scheduled IMEs. For the first, second, seventh, and eighth causes of action, the insurer proved timely initial and follow-up verification requests remained unanswered. The provider did not show a response before suit, so those claims were premature under 11 NYCRR 65-3.8 (a). For the third through sixth causes of action, affidavits established timely mailed IME requests, nonappearance, and timely mailed denials, warranting dismissal under 11 NYCRR 65-1.1. The Appellate Term, Second Department, reversed the judgment, vacated the summary judgment rulings on those eight causes of action, denied the provider's corresponding motion branches, and granted the insurer's corresponding cross-motion branches.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50253(U)
Insurer prevailed
The insurer properly denied the third bill based on two prior EUO nonappearances without issuing new scheduling letters for that bill. Civil Court dismissed claims on the first two bills but awarded the provider summary judgment on the third because no two scheduling letters addressed its service date. The insurer denied the third bill within 30 days of receipt under 11 NYCRR 65-3.8 (a), relying on the provider's failure to attend two previously, properly scheduled EUOs. That failure breached a condition precedent to coverage, and new scheduling letters were unnecessary. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion branch concerning the third bill, and granted the insurer's corresponding cross-motion branch dismissing that claim.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50255(U)
Split result
The insurer preserved its fee schedule defense, but factual issues remained as to whether it had fully paid under that schedule. The provider appealed from an order granting the insurer summary judgment dismissing its assigned no-fault action and denying its own cross motion. Following Arco Med. NY, P.C. v Lancer Ins. Co., the denial forms sufficiently preserved the defense. Nevertheless, the record presented triable issues concerning full payment for the services under the workers' compensation fee schedule. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the denial of the provider's cross motion intact.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50259(U)
Insurer prevailed
The provider failed to rebut the insurer's IME report establishing lack of medical necessity for the services rendered. Civil Court denied the parties' summary judgment applications but found the provider's prima facie showing and the timely, proper mailing of denials established, leaving medical necessity as the sole trial issue. The insurer's affirmed IME report supplied a factual basis and medical rationale for finding the services unnecessary. The provider did not meaningfully address its conclusions or challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 19, 2013
2013 NY Slip Op 50260(U)
Insurer prevailed
The insurer's unrebutted chiropractic peer reviews established that the disputed supplies lacked medical necessity. Civil Court denied both parties' summary judgment applications, found timely and proper denial, and limited trial to medical necessity. On appeal, the insurer's affidavits and peer review reports supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider did not rebut that showing or challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint, reaching no other issue.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50203(U)
Insurer prevailed
The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law. Under Insurance Law § 5106 (a), a provider seeking summary judgment must prove claim submission, the fact and amount of the loss, and either failure to pay or deny within 30 days or a timely denial that is conclusory, vague, or legally meritless. The provider's supporting affidavit failed to satisfy the requirement concerning the denials and thus did not establish prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50200(U)
Provider prevailed
An affidavit need not be signed and notarized on the date it was drafted to be admissible. Civil Court denied the provider's unopposed summary judgment motion on the unpaid claim balance because it considered the signature improperly notarized. The affidavit recited that the affiant was duly sworn, and the notary signed and stamped the jurat. Nothing indicated that the notary lacked jurisdiction or failed to perform legally required duties. The affidavit was admissible and established the provider's prima facie case under CPLR 4518 (a). The Appellate Term, Second Department, reversed, granted the provider's motion, and remitted for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 and its regulations.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50196(U)
Split result
The insurer established lack of medical necessity for several claims but failed to substantiate its fee-schedule defenses. In the provider's action for assigned no-fault benefits, the insurer's affirmed IME reports supplied a factual basis and medical rationale for denying multiple claims, and the provider failed to rebut that showing. An affirmed peer review likewise supported denial of six services in another claim. However, the insurer did not establish improper billing or excessive fees for two claims or the unpaid balance for one service in the peer-reviewed claim. The Appellate Term, Second Department, reversed the dismissal judgment, vacated summary judgment on those two claims and that unpaid balance, and denied those branches of the insurer's cross motion; the medical-necessity dismissals remained undisturbed.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50197(U)
Insurer prevailed
The insurer's unrebutted peer review and IME reports established lack of medical necessity for the claims challenged on appeal. The provider appealed only the branches of the insurer's cross motion that dismissed specified assigned no-fault claims. The insurer's affidavit established timely mailing of the medical necessity denials. Its affirmed peer review and IME reports each supplied a factual basis and medical rationale for finding the services unnecessary, establishing prima facie entitlement to summary judgment. The provider did not rebut that showing, and its remaining contentions lacked merit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving dismissal of the appealed claims intact.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50199(U)
Split result
The insurer failed to establish timely denial of one claim or its fee schedule defense to another, requiring denial of dismissal as to both. The insurer's affidavit was silent about the first claim, and its proof did not conclusively establish excessive fees on the second. Dismissal remained warranted for other claims: an unrebutted sworn IME report established lack of medical necessity, and unanswered verification requests made three claims premature under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the judgment, vacated dismissal of the claim lacking timely-denial proof and the fee schedule claim, denied the corresponding cross-motion branches, and remitted for further proceedings. The provider's summary judgment motion remained denied, and dismissal of the other claims remained intact.
Appellate Term, Second Department
Feb 11, 2013
2013 NY Slip Op 50201(U)
Split result
The parties' medical submissions raised a triable issue about the equipment's medical necessity, precluding summary judgment for either side. The insurer's claims examiner established timely mailing of medical necessity denials. Its doctors' affirmed peer reviews supplied a factual basis and medical rationale for finding the equipment unnecessary. The provider's opposing physician affirmation, however, sufficiently raised a factual issue on medical necessity. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's summary judgment motion, and denied that motion. The denial of the insurer's cross motion for summary judgment dismissing the complaint remained intact.
Appellate Term, Second Department
Feb 8, 2013
2013 NY Slip Op 23043
Insurer prevailed
The insurer established a basis for Mallela discovery, defeating the provider's summary judgment motion. The provider failed to object timely under CPLR 3122 and remained obligated to respond except as to privileged or palpably improper demands. Under CPLR 3124, the insurer needed only to show that no response had been received; the provider failed to establish that billing-fraud discovery concerned a defense precluded by an untimely denial. The insurer also supplied detailed reasons to investigate licensing eligibility under Mallela, a nonprecluded defense, supporting financial discovery and a deposition under CPLR 3101 (a). The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion under CPLR 3212 (f) and the grant of the insurer's cross motion to compel.
Appellate Term, Second Department
Feb 8, 2013
2013 NY Slip Op 50188(U)
Insurer prevailed
The transit authority established that its records contained no indication of the assignor's involvement in an accident with its vehicle. Its claims examiner described a business practice of logging everyone injured or involved in accidents with its vehicles. Given only the alleged accident date, the examiner searched the records and found no indication that the assignor was injured as a passenger or otherwise, or was present at an accident scene involving its vehicle that day. This established prima facie entitlement to summary judgment, and the provider failed to raise a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the transit authority's cross motion dismissing the complaint.
Appellate Term, Second Department
Feb 8, 2013
2013 NY Slip Op 50189(U)
The provider's appeal from the summary judgment and discovery rulings became academic after dismissal of the complaint. The appealed order denied the provider's summary judgment motion and compelled responses to the insurer's discovery demands and production of a witness for an examination before trial. The Appellate Term, Second Department, dismissed the appeal because the Civil Court's subsequent dismissal of the complaint rendered it academic.
Appellate Term, Second Department
Feb 8, 2013
2013 NY Slip Op 50220(U)
Provider prevailed
The provider obtained summary judgment on the appealed claim because it proved its loss and the insurer failed to allege mailing of a denial. Civil Court established claim submission and loss under CPLR 3212 (g) but also found a timely denial and limited trial to medical necessity. The insurer's papers did not allege mailing of the disputed denial. The provider established the fact and amount of loss through a claim form admissible under CPLR 4518 (a), and the insurer did not rebut that showing. Applying Insurance Law § 5106 (a), the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted judgment on that claim, and remitted for interest and attorney fees, leaving open whether reviewing the loss finding required a cross-appeal.
Appellate Term, Second Department
Feb 1, 2013
2013 NY Slip Op 50219(U)
Split result
New Jersey law governed the provider's claim, and its failure to prove medical necessity defeated its summary judgment motion. A New Jersey resident's vehicle carried a New Jersey policy; the accident and treatment occurred in New York. A grouping-of-contacts analysis favored New Jersey, where the provider initially must prove medical necessity and NJSA 39:6A-5 permits that defense at any time. The insurer's jurisdictional dismissal motion failed because the policy allowed dispute resolution on a party's initiative rather than mandating it under NJSA 39:6A-5.1 (a) and NJAC 11:3-5.1 (a). The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed; because neither party sought to compel dispute resolution, it left other effects of that provision unresolved.
Appellate Term, First Department
Feb 1, 2013
2013 NY Slip Op 50148(U)
Provider prevailed
The insurer's provider EUO request was untimely and did not toll its time to pay or deny the claim. The insurer sought summary judgment dismissing the provider's first-party no-fault action. Its request for additional verification through a provider EUO was made well beyond the required 15-day period following the assignor's EUO. Applying 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.8 (a) (1), the Appellate Term, First Department, affirmed the denial of the insurer's motion.
Appellate Term, Second Department
Feb 1, 2013
2013 NY Slip Op 50179(U)
Insurer prevailed
The insurer's cross motion, in effect, for summary judgment dismissing the provider's no-fault complaint was granted and affirmed on appeal. The Appellate Term, Second Department, affirmed the order, which also denied the provider's summary judgment motion, for the reasons stated in D & R Med. Supply v American Tr. Ins. Co., without giving independent reasoning.
Appellate Term, Second Department
Feb 1, 2013
2013 NY Slip Op 50180(U)
Insurer prevailed
The provider's medical affidavit failed to rebut the insurer's peer review and IME findings of lack of medical necessity. In the action for assigned no-fault benefits, the insurer established timely denials of the two claims at issue and submitted affirmed reports supplying a factual basis and medical rationale for each determination. The provider's doctor did not meaningfully address the reports' conclusions. The Appellate Term, Second Department, reversed the provider's judgment, vacated the corresponding summary judgment rulings, denied the provider's motion as to those claims, and granted the insurer's cross motion dismissing them.
Appellate Term, Second Department
Feb 1, 2013
2013 NY Slip Op 50181(U)
The provider's appeal from a workers' compensation stay became academic after dismissal of the complaint. The Civil Court had granted the insurer's motion to stay the assigned no-fault action pending a Workers' Compensation Board determination of the parties' rights under the Workers' Compensation Law. The Appellate Term, Second Department, dismissed the appeal because the Civil Court subsequently entered an order dismissing the complaint.
Trial court, Second Department
Feb 27, 2013
2013 NY Slip Op 50340(U)
Insurer prevailed
The provider's TMR treatment claims were dismissed after it failed to rebut expert testimony that the therapy lacked medical acceptance. At trial, the parties stipulated to timely billing and denials based on lack of medical necessity. The insurer's substitute peer-review doctor testified that high-frequency electromagnetic therapy was not generally accepted for the assignor's injuries. The decision first rejected that testimony as exceeding the original peer review, which found insufficient medical justification without specifically finding lack of medical necessity. It ultimately relied on the testimony because the provider had an opportunity to rebut it but offered no independent evidence of acceptance. The Civil Court, Richmond County, entered judgment for the insurer and left open reconsideration upon independent recognized testing.
Trial court, Second Department
Feb 25, 2013
2013 NY Slip Op 23156
Provider prevailed
A provider may recover demanded interest on overdue no-fault payments even when the interest does not exceed five dollars. The provider sought interest and attorney fees after the insurer paid four claims more than 30 days after receipt. The Civil Court, Queens County, held that 11 NYCRR 65-3.9 (a) requires payment without demand when interest exceeds five dollars but does not bar recovery of smaller amounts upon demand. Exempting those amounts would conflict with Insurance Law § 5106 (a), which imposes interest on all overdue payments. Interest accrues daily using the prescribed 30-day month. The court granted the provider summary judgment for interest and attorney fees and denied the insurer's cross motion to dismiss.
