20 decisions · 20 Appellate Term
Issues this month: Medical necessity 11 Provider's prima facie case 8 Discovery and procedure 4 Timeliness and preclusion 3 Declaratory judgment, res judicata 2 EUO no-show 1
The insurer's summary judgment dismissing the provider's claims for EUO nonappearance was affirmed on proof of timely mailing. The provider's sole appellate contention challenged mailing of the EUO requests and denial, which the Appellate Term, Second Department, found established by the insurer's affidavits. The court relied on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Civil Court cannot compel escrow of collected judgment proceeds when no exception to its lack of injunctive authority applies. After the providers executed a default judgment, MVAIC sought repayment, and Civil Court ordered escrow under threat of sanctions or contempt. The directive fell outside the exceptions in CCA 110 (a) (4), 203 (o), and 209 (b). CPLR 5519 (a) also supplied no automatic stay because MVAIC appealed an order denying a stay and recalculation, rather than the judgment enforced. The Appellate Term, Second Department, reversed the escrow order, insofar as appealed from, and struck the directive; it dismissed the appeals from the superseded earlier order and left other issues, including MVAIC's status as a state agency, undecided.
The provider's EUO objections were not heard because it did not claim to have responded to the insurer's requests. The insurer obtained summary judgment dismissing an assigned no-fault action based on the provider's failure to appear for duly scheduled EUOs, a failure to comply with a coverage condition precedent. Its affidavits established timely mailing of both the scheduling letters and denial forms. Because the provider did not claim to have responded to the EUO requests, its challenge to their justification was unavailable, and discovery concerning their reasonableness was unnecessary to oppose summary judgment under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
The provider established the fact and amount of its loss through an admissible claim form, while medical necessity remained disputed. In this assigned-benefits action, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment and establishing the fact and amount of loss for all purposes in the action. The claim form was admissible under CPLR 4518 (a) as proof of the matters recorded. The order did not establish that the denial was untimely or legally insufficient; it directed a trial on medical necessity. Contrary to the insurer's assertion, the record included the provider's opposing doctor's affidavit, which raised triable issues concerning the service's medical necessity.
The provider's motion for summary judgment on its assigned no-fault claim was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. The matter was remitted for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 and its implementing regulations.
The insurer's sworn peer review established lack of medical necessity, and the provider failed to rebut that showing. The provider sought assigned first-party no-fault benefits, and the insurer cross-moved for summary judgment based on timely denials for lack of medical necessity. The Civil Court denied the cross motion and limited trial to medical necessity. The peer review supplied a factual basis and medical rationale for the reviewer's conclusion. Because the provider offered no sufficient rebuttal and 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.
The parties' conflicting medical expert opinions raised a triable issue concerning the necessity of physical therapy and related services. The provider sought assigned first-party no-fault benefits, and the insurer appealed only the portion of the order denying its motion for summary judgment dismissing the complaint. The Appellate Term, First Department, affirmed that portion because the competing opinions left medical necessity unresolved.
The defendant insurer established that the provider sued the wrong carrier because another insurer issued the policy covering the accident. In the action for assigned no-fault benefits, the defendant moved under CPLR 3211 (a) and 3212 to dismiss for lack of coverage. Its litigation manager and the issuing carrier's claims litigation manager supplied affidavits supporting the defense, with the latter confirming that the other carrier issued the policy. Those submissions established that the defendant did not cover the accident. The Appellate Term, Second Department, reversed the order denying dismissal and granted the defendant insurer's motion.
A discovery order precluding an insurer from offering trial evidence does not bar res judicata effect for a default declaratory judgment. The provider sought assigned benefits and obtained a conditional preclusion stipulation that became absolute when the insurer failed to comply. A subsequent default declaration covering the accident rendered the policy null and void and relieved the insurer of coverage obligations. Default judgments may have claim-preclusive effect, and the trial-evidence restriction did not prevent the Civil Court from recognizing the declaration. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
The insurer failed to show res judicata because its declaratory judgment did not include the accident underlying the provider's claim. After the provider obtained summary judgment for assigned no-fault benefits, the insurer secured a default declaration denying coverage for specified incidents based on EUO nonappearance. It then sought to vacate the Civil Court judgment under CPLR 5015 (a) (3), alleging assignor fraud and invoking res judicata. The declaration listed 28 incidents but omitted the accident at issue. The insurer therefore failed to establish that entry of the provider's judgment relitigated claims arising from the same transaction or series of transactions. The Appellate Term, Second Department, affirmed denial of the insurer's vacatur motion.
The provider rebutted one medical-necessity peer review but failed to address another review's finding that supplies were superfluous. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the claim addressed by the unrebutted review. That review found the supplies superfluous because existing physical therapy and rehabilitation were sufficient. Dismissal of the other supply claim remained denied because the provider's doctor's affirmation raised a triable issue. The court preserved the finding under CPLR 3212 (g) that bill submission and the fact and amount of loss were established. It also directed submissions on possible sanctions against provider counsel under 22 NYCRR 130-1.1 (c) for the appellate brief, leaving sanctions unresolved.
The provider's doctor's affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment cross motion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the finding under CPLR 3212 (g) that the provider established submission of the bills and the fact and amount of the loss. The insurer's affirmed peer reviews supplied a factual basis and medical rationale for finding the supplies unnecessary, but the provider's opposition warranted a trial. The order did not establish that the denials were legally insufficient. The appellate court also directed counsel to show cause concerning sanctions under 22 NYCRR 130-1.1 (c) because the provider's brief lacked case-specific argument and contained potentially frivolous statements.
The provider failed to rebut the peer review's conclusion that EMS items were superfluous to existing physical therapy and rehabilitation. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing claims for the E.M.S., EMS Accessories and EMS Supply. The provider's medical affirmation raised triable issues for the back massager, infrared heat lamp and other supply claim, so denial of dismissal remained affirmed for those items. Bill submission and loss were established under CPLR 3212 (g). The court directed submissions on possible sanctions against two provider attorneys under 22 NYCRR 130-1.1 (c) because the appellate brief lacked case-specific argument required by CPLR 5528 and 22 NYCRR 731.2 (a).
The provider failed to rebut the peer review's conclusion that EMS items and a back massager were superfluous to existing physical therapy. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing claims for the E.M.S., EMS Accessories, EMS Supply and back massager. The provider's medical affirmation raised triable issues for the infrared heat lamp and the other supply claim; denial of dismissal remained affirmed for those items. Bill submission and loss were established under CPLR 3212 (g). The court also directed submissions on possible sanctions against two provider attorneys under 22 NYCRR 130-1.1 (c) because the appellate brief lacked case-specific argument required by CPLR 5528 and 22 NYCRR 731.2 (a).
The provider's medical affirmation raised a triable issue concerning the necessity of supplies despite the insurer's supported peer reviews. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment. Bill submission and the fact and amount of loss were established for all purposes under CPLR 3212 (g), but the order did not establish that the denials were conclusory, vague or legally meritless. Medical necessity remained for trial. The provider's appellate brief lacked case-specific facts and argument required by CPLR 5528 and 22 NYCRR 731.2 (a). The court directed submissions on possible sanctions against two provider attorneys under 22 NYCRR 130-1.1 (c), without imposing sanctions in this decision.
The provider rebutted one peer review but failed to address another review's conclusion that supplies were superfluous to physical therapy. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the claim for supplies deemed superfluous and otherwise affirmed. The provider's medical affirmation raised a triable issue on the other supply claim. Its proof also established bill submission and the fact and amount of loss under CPLR 3212 (g), without establishing that the denials lacked merit. Because the provider's appellate brief lacked case-specific argument required by CPLR 5528 and 22 NYCRR 731.2 (a), the court directed submissions on possible sanctions against two provider attorneys under 22 NYCRR 130-1.1 (c).
The insurer's peer reviews established lack of medical necessity, and the provider left that showing unrebutted. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the assigned-benefits complaint. Each affirmed report supplied a factual basis and medical rationale, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment. The provider's appellate brief presented no case-specific facts or argument supporting affirmance, contrary to CPLR 5528 and 22 NYCRR 731.2 (a). The court also directed submissions on whether sanctions should be imposed against two provider attorneys under 22 NYCRR 130-1.1 (c); it did not impose sanctions in this decision.
The insurer's peer reviews established lack of medical necessity, and the provider left that showing unrebutted. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the assigned-benefits complaint. Each affirmed report supplied a factual basis and medical rationale, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment. The provider's appellate brief presented no case-specific facts or argument supporting affirmance, contrary to CPLR 5528 and 22 NYCRR 731.2 (a). The court also directed submissions on whether sanctions should be imposed against two provider attorneys under 22 NYCRR 130-1.1 (c); it did not impose sanctions in this decision.
The provider's summary judgment motion on the third cause of action was denied for failure to establish prima facie entitlement. The Appellate Term, Second Department, affirmed that denial, relying on NYU Hosp. for Joint Diseases v State Farm Mut. Auto. Ins. Co. and New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. The other two providers' appeals were dismissed under CPLR 5511 because they were not aggrieved.
The insurer's affidavits established timely mailing of IME scheduling letters and the assignor's nonappearance for the scheduled IMEs. The scheduling entity's owner described standard mailing practices, and the examining chiropractor attested to nonappearance. Timely mailing of the denials had already been established for all purposes and was not challenged. The provider submitted only counsel's affirmation, failed to raise a triable issue and did not demonstrate that discovery was needed to do so. The Appellate Term, Second Department, declined to consider another contention first raised on appeal, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the fourth and sixth causes of action.
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