Appellate Division, Second Department
May 15, 2013
2013 NY Slip Op 03453
Split result
An insured's allegations that the insurer promised no-fault benefits and denied coverage for medical services stated a breach-of-contract claim. The Appellate Division, Second Department, modified the order to deny dismissal of that claim under CPLR 3211 (a) (7), otherwise affirming the order, insofar as appealed from. Dismissal of the fraud claim against the insurer stood because fraud rested on the same allegations as breach of contract, without collateral or extraneous representations. Fraud claims against the other defendants were properly dismissed because their allegations were conclusory or did not constitute fraud, failing CPLR 3016 (b)'s detail requirement. The separate consequential-damages claim against the insurer was dismissed because the allegations did not adequately connect pain and suffering to the alleged contractual breach.
Appellate Term, Second Department
May 23, 2013
2013 NY Slip Op 50906(U)
A District Court lacks subject matter jurisdiction over an insurer's action for de novo adjudication seeking declaratory relief. The insurer sued under Insurance Law § 5106 (c) after a provider obtained an arbitration award exceeding $5,000, seeking a determination that benefits were not payable under its policy. Supreme Court transferred the action under CPLR 325 (d), and the District Court granted the provider's dismissal motion. Applying CPLR 3001, the Appellate Term, Second Department, concluded that the transfer did not confer Supreme Court's jurisdiction on the District Court. The limited declaratory jurisdiction under UDCA 212-a did not cover this action. The Appellate Term dismissed the appeal and vacated the dismissal order as a nullity.
Appellate Term, Second Department
May 22, 2013
2013 NY Slip Op 50900(U)
Provider prevailed
The insurer failed to establish a limitations bar because service commenced the action within six years and late filing received nunc pro tunc effect. The provider's claim accrued in 2002, and service under CPLR 312-a commenced the Civil Court action in April 2003 under the former commencement system and CPLR 203 (b) (1). Although former CCA 409 required filing within 14 days after service, the provider complied with an order allowing late filing under former CCA 411. The six-year period under CPLR 213 (2) therefore had not expired before commencement. The Appellate Term, Second Department, reversed and denied the insurer's CPLR 3211 (a) (5) dismissal motion; the propriety of allowing filing more than five years late was outside the scope of review.
Appellate Term, Second Department
May 22, 2013
2013 NY Slip Op 50904(U)
Split result
The insurer established lack of medical necessity for one claim and outstanding verification for two, but obtained no dismissal of twelve others. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing three of fifteen claims. The provider's competing IME report raised factual issues concerning eleven claims denied based on the insurer's IME, but no medical evidence rebutted the peer review supporting denial of another claim. Two claims remained premature because timely initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) went unanswered, tolling payment or denial under 11 NYCRR 65-3.8 (a). Dismissal of the remaining claim was denied because the insurer failed to establish that its charge exceeded the workers' compensation fee schedule.
Appellate Term, Second Department
May 22, 2013
2013 NY Slip Op 50902(U)
Provider prevailed
The insurer's EUO no-show defense lacked evidence from anyone with personal knowledge of the assignor's nonappearances. In the provider's assigned no-fault action, the trial court denied both sides' summary judgment requests and limited trial to whether the assignor appeared for EUOs. Only the insurer appealed the denial of its cross motion. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the insurer's submissions lacked the required personal-knowledge evidence.
Appellate Term, Second Department
May 22, 2013
2013 NY Slip Op 50901(U)
Insurer prevailed
The insurer's unrebutted peer reviews established lack of medical necessity and warranted summary judgment dismissing the provider's claims. In this action for assigned first-party no-fault benefits, the insurer established that it timely denied the claims and submitted two affirmed peer review reports. Each report supplied a factual basis and medical rationale for finding the services unnecessary. The provider did not rebut that showing. 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, First Department
May 21, 2013
2013 NY Slip Op 50821(U)
Provider prevailed
The insurer failed to establish tolling because its initial EUO letters preceded receipt of the claim and follow-up compliance remained disputed. In the provider's action for first-party no-fault benefits, the insurer sought summary judgment based on EUO verification requests. The Appellate Term, First Department, affirmed denial of that motion. Two EUO letters sent before receipt of the claim did not toll the 30-day period to pay or deny. Even assuming proper mailing of a later EUO request, triable issues remained as to whether the insurer made the follow-up verification request required by 11 NYCRR 65-3.6 (b).
Appellate Term, Second Department
May 14, 2013
2013 NY Slip Op 50850(U)
Provider prevailed
The insurer waived its assignment defense by failing to timely object to incomplete claim forms or seek verification of a valid assignment. At a nonjury trial, the provider presented its prima facie case, and the insurer offered no defense. The Civil Court nevertheless dismissed because no assignment was admitted. The Appellate Term, Second Department, reversed, explaining that the assignment objection was waived. Unlike a summary judgment movant under CPLR 3212 (b), a provider at trial need not establish the absence of a defense; the insurer must prove a meritorious, unprecluded defense. The matter was remitted for judgment for the provider, including statutory interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
May 14, 2013
2013 NY Slip Op 50854(U)
Insurer prevailed
A peer review report is inadmissible at trial to prove lack of medical necessity, which must be resolved through medical expert testimony. After a nonjury trial limited to medical necessity, the Civil Court dismissed the provider's claims for medical supplies based on the insurer's doctor's testimony. The provider challenged admission of the peer review report and underlying medical records but did not challenge the substance of that testimony. Following A-Quality Med. Supply v GEICO Gen. Ins. Co., the Appellate Term, Second Department, concluded that the insurer properly established lack of medical necessity through its expert witness. Admission of the report did not warrant reversal, and the judgment for the insurer was affirmed.
Appellate Term, Second Department
May 14, 2013
2013 NY Slip Op 50856(U)
Insurer prevailed
The provider's action was premature because its claim forms lacked substantially the same information as NF-3 forms requested in verification. The insurer's claims examiner established timely mailing of initial and follow-up requests seeking prescribed NF-3 forms and other verification. Under 11 NYCRR 65-3.5 (f), an insurer must accept an alternative form containing substantially the same information, but may require the prescribed form. The provider's forms did not meet that standard, and it did not demonstrate full compliance before suit. The 30-day payment or denial period under 11 NYCRR 65-3.8 (a) had not begun. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's summary judgment cross motion; remaining insurer arguments were not reached.
Appellate Term, Second Department
May 14, 2013
2013 NY Slip Op 50849(U)
Provider prevailed
The insurer's conclusory expert testimony failed to establish lack of medical necessity because it supplied no factual basis or medical rationale. At a nonjury trial limited to medical necessity, the insurer's expert identified a peer review report and opined that the radiology services were unnecessary. The Civil Court admitted the report only to establish its authorship, declined to consider its contents, and directed a verdict for the provider. Following A-Quality Med. Supply v GEICO Gen. Ins. Co., the Appellate Term, Second Department, explained that a peer review report is not subject to cross-examination and cannot prove lack of medical necessity at trial. The judgment for the provider was affirmed as supported by a fair interpretation of the evidence.
Appellate Term, Second Department
May 14, 2013
2013 NY Slip Op 50851(U)
Provider prevailed
The insurer failed to show that billing for an undelivered heating pad voided the policy or barred payment for other supplies. The Civil Court granted summary judgment dismissing the heating-pad claim but denied dismissal of claims for the remaining supplies. The insurer appealed only the latter ruling, arguing that the provider's material misrepresentation barred all benefits. It failed to establish that the claim forms at issue sought payment for supplies not actually furnished, or that billing for the undelivered pad voided the automobile policy from inception. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the denial of summary judgment on the remaining claims intact.
Appellate Term, Second Department
May 13, 2013
2013 NY Slip Op 50840(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer's summary judgment motion was unopposed. An employee of the entity scheduling the IMEs established timely mailing of scheduling letters through standard office practices and procedures. Affidavits from the acupuncturist, chiropractor, and orthopedist who were to conduct the IMEs established nonappearance, and the insurer also proved timely mailing of the resulting denials. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and 11 NYCRR 65-1.1, the Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50761(U)
Insurer prevailed
The provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy. The insurer's sworn peer review supplied a factual basis and medical rationale, explaining that the assignor already received three forms of therapy considered more than adequate. The opposing doctor's affirmation did not meaningfully address the reviewer's conclusions and raised no triable issue. The Civil Court had denied both parties' summary judgment requests and, upon reargument, adhered to denial of the insurer's cross motion. 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
May 6, 2013
2013 NY Slip Op 50751(U)
Provider prevailed
The insurer failed to establish proper IME scheduling because notices used an incorrect ZIP code and counsel's representation was unproved. The insurer sought dismissal based on the assignor's alleged IME nonappearance. The claim form and assignment listed one ZIP code, while the scheduling letters and postmarked mailing logs listed another. Although notices were also sent to an attorney, the record did not show that the attorney represented the assignor. Only proper mailing creates a presumption of receipt, and the insurer therefore failed to establish duly scheduled IMEs. The Appellate Term, Second Department, affirmed the order granting the provider's summary judgment motion and denying the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50748(U)
The insurer's medical witnesses should have been permitted to testify about records reviewed for their peer reviews, requiring a new trial. By stipulation, medical necessity was the sole trial issue for all but one claim. The Civil Court precluded the insurer's doctors from testifying about the medical records they reviewed and entered judgment for the provider. Following Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., the Appellate Term, Second Department, reversed and remitted the entire case for a new trial. The remaining claim apparently involved a workers' compensation fee-schedule defense; although the insurer's counsel may have intended to concede it, the record was unclear, so that claim was also remitted.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50750(U)
Provider prevailed
The insurer's proof that it received reports of IME nonappearance failed to establish that the assignor actually missed the examinations. Opposing the provider's summary judgment motion, the insurer submitted an IME scheduling company's operations manager affidavit and letters reporting nonappearance. The affidavit stated that the assigned healthcare professionals had informed the company of missed appointments. The insurer argued that the statements were offered only to prove they were made, rather than for their truth. But raising a factual issue required proof that the assignor actually failed to attend duly scheduled IMEs, breaching a coverage condition precedent. The Appellate Term, Second Department, affirmed the order granting summary judgment to the provider.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50756(U)
Insurer prevailed
The provider's chiropractor failed to rebut the insurer's peer review and IME findings that the chiropractic services were unnecessary. The insurer established timely denial of the assigned no-fault claims on medical-necessity grounds and submitted sworn peer review and IME reports. Each report supplied a factual basis and medical rationale for its conclusion. The provider's opposing affidavit did not meaningfully address or rebut either report and therefore failed to raise a triable issue. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted that motion, dismissing the complaint.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50760(U)
Insurer prevailed
The provider's doctor's affirmation failed to rebut the insurer's peer review establishing lack of medical necessity for the equipment. The insurer established timely mailing of its medical-necessity denial and submitted a properly affirmed peer review report supplying a factual basis and medical rationale. The provider's opposing medical affirmation did not meaningfully refer to the reviewer's conclusions and failed to raise a triable issue. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denying the insurer's cross motion. It denied the provider's motion and granted the insurer's cross motion for summary judgment dismissing the assigned no-fault benefits complaint.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50763(U)
Insurer prevailed
The provider's objections to the insurer's EUO requests were not heard because it had not responded to the requests. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault claims for failure to appear at duly scheduled EUOs, a breach of a coverage condition precedent. On appeal, the insurer's affidavits established timely mailing of the scheduling letters and no-show denials. Because the provider did not claim any response to the requests, its objections to their justification could not be raised in litigation. Discovery concerning reasonableness was therefore unnecessary to oppose the motion under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order for the insurer.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50747(U)
MVAIC's late discovery responses sent to the wrong address did not establish willful and contumacious conduct warranting preclusion. At a nonjury trial for assigned no-fault benefits, the parties stipulated to admission of the claim form, assignment, and proof of timely mailing. The provider asserted that MVAIC had failed to comply with a discovery order and a subsequent stipulation, although responses were ultimately served. The trial court precluded MVAIC's lack-of-coverage defense and awarded judgment to the provider. Applying CPLR 3126, the Appellate Term, Second Department, found that the record did not establish willful and contumacious conduct and that preclusion was an improvident exercise of discretion. It reversed the judgment and remitted for a new trial.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50752(U)
Provider prevailed
The insurer's affidavit omitted claims in the complaint and failed to substantiate its fee-schedule defense, defeating summary judgment. The Civil Court denied the provider's summary judgment motion but granted the insurer's cross motion dismissing the assigned no-fault benefits complaint. On appeal, the provider showed that the claims examiner's affidavit addressed several claims outside the complaint, did not address certain claims being sued upon, and did not substantiate the stated fee-schedule basis for one denial. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer's cross motion, and denied that cross motion. The denial of the provider's motion remained intact.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50753(U)
Insurer prevailed
The insurer's affidavits established timely mailing of EUO scheduling letters and the denial, and the provider's failure to attend either EUO. In the assigned no-fault benefits action, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The Appellate Term, Second Department, rejected the provider's challenges to mailing and nonappearance proof. 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. The Appellate Term affirmed the resulting judgment dismissing the complaint in the insurer's favor.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50755(U)
Insurer prevailed
The provider's complaint was abandoned because it sought default judgment more than one year after default without offering an excuse for delay. The Civil Court conditionally permitted a default judgment unless the insurer answered within 30 days and denied the insurer's dismissal cross motion. Under CPLR 3215 (c), a plaintiff that fails to initiate judgment proceedings within one year must offer a reasonable excuse and demonstrate a meritorious complaint; otherwise dismissal as abandoned is required. The provider offered no excuse. The Appellate Term, Second Department, reversed, denied the provider's motion for leave to enter a default judgment, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50757(U)
Split result
The provider's medical affirmations raised factual issues concerning MRI necessity, requiring denial of both sides' summary judgment requests. The insurer established timely mailing of medical-necessity denials and submitted sworn peer review reports giving factual bases and medical rationales for finding the MRIs unnecessary. The provider's opposing doctor's affirmations were sufficient to raise a triable issue as to the services' medical necessity. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment cross motion and otherwise affirmed. The insurer's motion for summary judgment dismissing the complaint remained denied, and neither side obtained summary judgment.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50758(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and denials, and the provider's failure to respond foreclosed its justification objections. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault benefits complaint for the provider's failure to appear at duly scheduled EUOs, a breach of a coverage condition precedent, and denied the provider's cross motion. On appeal, the insurer's affidavits established timely mailing. Because the provider did not claim to have responded in any way to the EUO requests, its objections to their justification were not heard. The Appellate Term, Second Department, affirmed the order, sustaining dismissal for the insurer.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50759(U)
Split result
Both parties' summary judgment requests were denied because factual issues remained concerning the medical necessity of the supplies. The insurer established timely mailing of denials of two claims, but the decision stated only that the record presented triable medical-necessity issues. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed, leaving the insurer's cross motion denied.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50762(U)
Provider prevailed
The provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion. In the assigned no-fault benefits action, the Civil Court denied the insurer's summary judgment motion and granted the provider's cross motion. The provider proved mailing of its claims and laid a foundation for the claim forms under CPLR 4518. The insurer's claims representative affidavit did not establish timely mailing of the denials. The insurer therefore failed to show that its defenses, including the asserted failure of the assignor to comply with a coverage condition precedent, escaped preclusion or raised a triable issue. The Appellate Term, Second Department, affirmed the provider's judgment.
Appellate Term, Second Department
May 6, 2013
2013 NY Slip Op 50764(U)
Insurer prevailed
The insurer's unrebutted peer review established that the disputed supply was not medically necessary and warranted dismissal. The Civil Court denied the insurer's summary judgment cross motion while finding a timely and proper medical-necessity denial and identifying medical necessity as the sole trial issue. The insurer's affirmed peer review supplied a factual basis and medical rationale for its conclusion, and the provider did not rebut it. The provider also 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
May 6, 2013
2013 NY Slip Op 50766(U)
Split result
The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim. The insurer conceded that it had not denied the claim on IME nonappearance grounds, defeating its summary judgment request under Westchester Med. Ctr. v Lincoln Gen. Ins. Co. The provider's cross motion failed to establish the claim form's admissibility under CPLR 4518 and therefore failed to prove the fact and amount of the loss. The Appellate Term, Second Department, modified the order, insofar as appealed from, by striking the determination that the provider had established its prima facie case for that claim. It otherwise affirmed, including denial of the insurer's motion concerning the claim.
Trial court, Second Department
May 17, 2013
2013 NY Slip Op 50791(U)
Provider prevailed
A master arbitrator may not shift the insurer's burden of proving an EUO no-show to the provider to establish attendance. The arbitrator awarded benefits on two chiropractic claims because the insurer's letter briefs did not sufficiently establish nonappearance. The master arbitrator vacated the award, reasoning that the provider offered no proof that an EUO occurred and that an affidavit establishing nonappearance was unnecessary. On the provider's CPLR 7511 petition, the Civil Court, Kings County, held that the insurer bore the burden under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and 11 NYCRR 65-1.1. The burden shift was contrary to settled law and exceeded the master arbitrator's review power under CPLR 7511 (b) (1) (iii). The court reversed the master award and reinstated the original award.
Trial court, Second Department
May 9, 2013
2013 NY Slip Op 50810(U)
Insurer prevailed
An insurer need not answer a provider's letter refusing an EUO and demanding justification for the request. The Civil Court, Kings County, rejected reliance on the general communication requirements of 11 NYCRR 65-3.2 (e) and (f), reasoning that 11 NYCRR 65-3.5 (e) did not require justification in EUO notices or no-show denials. The insurer had nevertheless explained its concerns about billing practices. Although the provider timely preserved a reasonableness objection, the insurer's investigative affidavit substantiated the need for an EUO. The court treated nonappearance as breach of a coverage condition precedent voiding the contract ab initio, permitting denial regardless of the 30-day deadline. It denied the provider's motion, granted the insurer's summary judgment cross motion, and dismissed with prejudice.
Trial court, Second Department
May 8, 2013
2013 NY Slip Op 52247(U)
Provider prevailed
An insurer may not unreasonably refuse a good-faith request to reschedule an IME when the adjournment sought is not excessive. At trial, the assignor's two nonappearances were stipulated, but the assignor had requested a third appointment because of severe pregnancy-related morning sickness. The insurer refused without requesting medical documentation or contacting counsel. Applying the reasonableness requirements of 11 NYCRR 65-1.1 (d) and 65-3.5 (e), the Civil Court, Kings County, found the refusal unreasonable and the provider's excuse valid. The insurer's failure to seek follow-up verification waived objections to the adjournment request, and the evidence did not establish unreasonable nonappearance on either occasion. The insurer failed to sustain its IME defense, and judgment was entered for the provider.
