Appellate Division, Third Department
Oct 31, 2013
2013 NY Slip Op 07103
Insurer prevailed
An insured's tort claim and punitive-damages demand failed to allege a duty distinct from the insurer's contractual obligations. The insured alleged delayed investigation of a no-fault claim and failure to renew the policy. Following New York Univ. v Continental Ins. Co., the Appellate Division, Third Department, affirmed partial summary judgment for the insurer dismissing the tort claim and accompanying punitive-damages demand. Insurance Law § 2601 supplied no private cause of action. The court also affirmed denial of leave to amend: the insured submitted no proposed amended pleading, and conclusory allegations did not establish that the proposed amendments had merit.
Appellate Term, First Department
Oct 30, 2013
2013 NY Slip Op 51800(U)
Provider prevailed
The insurer's peer review lacked a factual basis or medical rationale for finding the medical supplies unnecessary. Its chiropractor submitted a report and affidavit containing only a conclusory assertion that durable medical goods were not needed. That assertion failed to eliminate triable issues of medical necessity and did not satisfy the insurer's prima facie burden on summary judgment. Independently, the treating chiropractor's affidavit specified the assignor's conditions and described the intended benefits of each prescribed supply, raising a triable issue. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the challenged portion of the insurer's motion to dismiss the assigned no-fault claims on summary judgment.
Appellate Term, First Department
Oct 30, 2013
2013 NY Slip Op 51802(U)
Insurer prevailed
The provider's unsworn medical report failed to rebut the insurer's sworn IME showing that chiropractic treatment lacked medical necessity. The insurer established timely denials based on its examining chiropractor's report, which supplied a factual basis and medical rationale for finding the assignor's injuries resolved and the treatment unnecessary. The provider submitted an unsworn doctor's report through counsel's affirmation. Under Grasso v Angerami, that report lacked probative value; even if considered, it did not meaningfully address or rebut the insurer's contrary findings. The Appellate Term, First Department, reversed the order denying the insurer's motion for summary judgment, granted the motion, and dismissed the complaint.
Appellate Term, Second Department
Oct 29, 2013
2013 NY Slip Op 51880(U)
Insurer prevailed
The provider's failure to respond to EUO requests foreclosed its objections and made discovery on their reasonableness unnecessary. The provider appealed summary judgment dismissing its claims for failure to attend EUOs, challenging mailing, justification for the requests, and the lack of discovery under CPLR 3212 (f). The insurer's affidavits established timely mailing of the scheduling letters and denials through standard office practices and procedures. Because the provider did not claim to have responded to the EUO requests in any way, its objections would not be heard. Discovery into reasonableness therefore was unnecessary to oppose the motion. The Appellate Term, Second Department, affirmed the order granting summary judgment to the insurer.
Appellate Term, First Department
Oct 28, 2013
2013 NY Slip Op 51797(U)
Insurer prevailed
An assignor's failure to attend requested IMEs permits denial of all claims retroactively to the loss date, regardless of denial timing. The insurer established timely and proper mailing of the IME notices and the assignor's nonappearance. The provider neither denied nonappearance nor raised a triable issue concerning it, the mailing, or the notices' reasonableness. Applying Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the court concluded that the insurer was entitled to summary judgment and could deny all claims retroactively regardless of whether its denials were timely. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Oct 28, 2013
2013 NY Slip Op 51798(U)
Insurer prevailed
The provider failed to establish mailing of its verification response, leaving its no-fault claim premature. The insurer made a prima facie showing that its verification letters were timely and properly mailed. In opposition, an employee of the provider's third-party biller lacked personal knowledge of when the purported verification-compliance letter was mailed and described office mailing practices only in general terms. That affidavit failed to raise a triable issue under Westchester Med. Ctr. v Countrywide Ins. Co. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint as premature.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51751(U)
Insurer prevailed
The provider failed to show that its assignor reported the alleged hit-and-run within 24 hours or had an excuse for failing to report it. A bicyclist seeking MVAIC benefits must satisfy Insurance Law article 52, including the reporting requirement in Insurance Law § 5208 (a) (2) (A), subject to the exception in Insurance Law § 5208 (a) (2) (B). Despite repeated requests, the assignor supplied no proof of an accident report, and the provider showed neither compliance nor that reporting was not reasonably possible. Under Insurance Law § 5221 (b) (2), the Appellate Term, Second Department, reversed Civil Court, Queens County's judgment, vacated the order, denied the provider's summary judgment motion, and granted MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51749(U)
Insurer prevailed
MVAIC established that no timely notice of claim was filed and no leave to file a late notice was sought. Under Insurance Law § 5208 (a) and (c), that failure meant the assignor was not a covered person under Insurance Law § 5221 (b) (2), leaving a condition precedent to payment of no-fault benefits unsatisfied. Civil Court, Queens County, had granted the provider summary judgment and denied MVAIC's cross motion. Deeming the appeal taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's motion, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51743(U)
Split result
A provider's tax returns generally are discoverable only on a strong showing that indispensable information is unavailable elsewhere. In this action for assigned no-fault benefits, the Appellate Term, Second Department, modified the discovery order to deny the insurer's demand for tax returns because that showing was not made. The provider's untimely objection under CPLR 3122 (a) otherwise required production except for privileged or palpably improper demands. The insurer established entitlement to depose the provider's physician under CPLR 3101 (a). The order striking the notice of trial and denying a protective order was otherwise affirmed. The provider's requests to depose the insurer's personnel and obtain investigation documents remained pending and undecided because the Civil Court had not addressed them.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51750(U)
Insurer prevailed
The provider submitted its claims more than 45 days after the services and offered no explanation for the delay. The insurers' claims examiner established both timely mailing of the denial and the provider's late submission under 11 NYCRR 65-1.1. The denial adequately identified the ground and advised the provider that a reasonable justification would excuse lateness, as required by 11 NYCRR 65-3.3 (e). The provider supplied none. The Appellate Term, Second Department, reversed the order denying the insurers' motion and granted summary judgment dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51744(U)
Insurer prevailed
A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle its assignor was driving. The provider and assignor knew the owner's identity, but the provider did not demonstrate that it had exhausted remedies against that owner. Civil Court, Queens County, denied the provider's summary judgment motion and granted MVAIC's cross motion dismissing the complaint. A judgment followed, and the appeal was deemed taken from it under CPLR 5501 (c). The Appellate Term, Second Department, affirmed the judgment in MVAIC's favor.
Appellate Term, First Department
Oct 15, 2013
2013 NY Slip Op 51676(U)
Provider prevailed
MVAIC failed to establish proper IME notice mailing because its scheduling affidavit lacked personal knowledge and described only general practices. MVAIC argued that the provider's assigned no-fault claim was premature because the assignor failed to attend IMEs. The scheduling entity's employee lacked personal knowledge of the actual mailing dates and described office procedures only in general terms. The affidavit did not establish a practice designed to ensure that notices were properly addressed and mailed. MVAIC therefore raised no material issue in response to the provider's prima facie showing and established no basis for dismissal. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion and the grant of the provider's cross motion.
Appellate Term, First Department
Oct 15, 2013
2013 NY Slip Op 51679(U)
Provider prevailed
The parties' conflicting medical expert opinions raised a triable issue concerning the necessity of chiropractic services. The provider sought assigned first-party no-fault benefits for those services, and the insurer moved for summary judgment dismissing the complaint. The Appellate Term, First Department, affirmed the Civil Court's denial of the insurer's motion because the competing opinions left medical necessity for resolution at trial.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51745(U)
Insurer prevailed
The insurer justified discovery on provider licensing eligibility, and the provider's certificate of readiness incorrectly stated discovery was complete. The insurer sought to vacate the notice of trial, compel complete discovery responses, and depose the provider's owner. Its outstanding demands addressed whether the professional service corporation complied with state or local licensing laws and was eligible for reimbursement under Mallela. That defense was not precluded, and the insurer gave specific, detailed reasons for the requested discovery. Under CPLR 3101 (a), the Civil Court properly required the responses and owner's deposition and vacated the notice of trial. The Appellate Term, Second Department, affirmed the order in favor of the insurer.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51746(U)
Provider prevailed
The insurer lost its EUO toll because its delay notice failed to identify the party from whom verification was requested. An EUO scheduling letter mailed before receipt of the claims initially tolled the payment-or-denial period. After rescheduling at the assignor's request and a subsequent nonappearance, the insurer timely sent a follow-up EUO letter. Under 11 NYCRR 65-3.6 (b), it also had to notify the provider in writing of the missing verification and the party from whom it was sought. Its delay notice omitted that identification, forfeiting the toll and leaving timely denial unproved. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment on EUO nonappearance and denied the motion.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51758(U)
Insurer prevailed
The insurer established timely IME requests and denials and the assignor's failure to attend the scheduled examinations. A manager of the retained IME scheduling company and the insurer's litigation examiner supplied affidavits establishing timely mailing of the requests. The physician scheduled to conduct orthopedic IMEs and the chiropractor scheduled to conduct chiropractic and acupuncture IMEs established the assignor's nonappearance. The litigation examiner also established that denials based on nonappearance were timely mailed to the address the provider supplied. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the provider's assigned no-fault claims.
Appellate Term, Second Department
Oct 15, 2013
2013 NY Slip Op 51759(U)
Insurer prevailed
The provider's unsupported claim that a peer review bore a stamped signature failed to raise a factual issue about admissibility. The Civil Court granted the insurer summary judgment on its lack-of-medical-necessity defense, finding the insurer's prima facie showing unrebutted. The provider's sole argument below and on appeal was that the peer review report was inadmissible because its signature was stamped. Without any explanation for that belief, the assertion did not raise an issue of fact under Manhattan Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. The Appellate Term, Second Department, deemed the appeal taken from the ensuing judgment under CPLR 5501 (c) and affirmed dismissal of the complaint.
Appellate Term, Second Department
Oct 10, 2013
2013 NY Slip Op 51742(U)
Insurer prevailed
The provider's late claim to MVAIC was dismissed because the provider supplied no written justification for the delay. It was undisputed that the provider failed to submit its claim within 45 days after rendering services, as required by 11 NYCRR 65-1.1. MVAIC's denial based on untimely submission advised that written justification could excuse the delay under 11 NYCRR 65-3.3 (e), but the provider supplied none. The Appellate Term, Second Department, reversed Civil Court, Kings County's order denying MVAIC's summary judgment motion and granted the motion dismissing the complaint.
Appellate Term, Second Department
Oct 10, 2013
2013 NY Slip Op 51741(U)
Split result
MVAIC obtained dismissal of claims paid under the fee schedule, but failed to establish timely denial of one claim. The provider failed to establish entitlement to summary judgment under Insurance Law § 5106 (a), as its affidavit showed neither failure to deny nor a legally insufficient denial. MVAIC established timely partial denials and full payment under the workers' compensation fee schedule for the remaining services. Its denial of the July 8 through July 10, 2008 claim came more than six months after receipt, with no alleged tolling. The Appellate Term, Second Department, modified Civil Court, Kings County's order to deny the provider's motion and grant MVAIC's cross motion dismissing all claims except that claim, which remained pending.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51737(U)
Insurer prevailed
An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor. The insurer sought summary judgment or, alternatively, an order compelling the deposition in an action for assigned benefits. Its appeal was limited to denial of the deposition request. CPLR 3101 (a) permits disclosure of material and necessary matters regardless of the burden of proof, including facts that assist trial preparation by sharpening the issues. Because lack of medical necessity was among the insurer's defenses, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's motion compelling the provider to produce its treating chiropractor.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51731(U)
Split result
The insurer proved full fee-schedule payment for acupuncture codes 97810 and 97811 but failed to address the initial evaluation under code 99203. The Appellate Term, Second Department, modified the order to remove summary judgment dismissing the initial-evaluation claim and otherwise affirmed, including denial of the provider's motion. The insurer's office-practice affidavits established timely mailing of the denials, and its proof showed payment for acupuncture services under the workers' compensation fee schedule for chiropractors. Its failure to address code 99203 precluded judgment dismissing that claim upon a search of the record. The provider also failed to establish entitlement to judgment on that claim because it did not show that the timely denial was conclusory, vague or without merit as a matter of law.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 23360
Provider prevailed
The provider established claim submission through the insurer's denials and proved the loss through admissible claim forms. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider's requested finding under CPLR 3212 (g). The denials admitted receipt of the claims, and the provider demonstrated that its claim forms were admissible business records under CPLR 4518 (a), without rebuttal by the insurer. Because the Civil Court had already found timely and proper denials established and limited the trial issues, the appellate court found it appropriate to establish claim submission and the fact and amount of loss for all purposes in the action. Trial was further limited to medical necessity.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51747(U)
Insurer prevailed
The provider's motion was treated as reargument because it offered no justification for omitting additional facts from its original motion. After summary judgment was denied on a coverage issue, the provider sought renewal based on facts allegedly obtained through a notice to admit. Renewal required reasonable justification for the earlier omission; none was offered. Although CPLR 2221 (d) (2) excludes new facts on reargument, even considering those facts would not establish exhaustion of remedies against the vehicle owner before seeking MVAIC benefits. A triable coverage issue remained. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order, insofar as appealed from, denying summary judgment and dismissal of MVAIC's lack-of-coverage defense.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51735(U)
Insurer prevailed
A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle that struck its assignor. The provider and assignor knew the vehicle owner's identity, but the provider did not demonstrate that it had exhausted remedies against that owner. Civil Court, Kings County, granted the provider summary judgment and denied MVAIC's cross motion, and a judgment followed. Treating the appeal as taken from that judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's motion, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51734(U)
Insurer prevailed
The insurer established nonreceipt of two bills and the assignor's failure to appear for duly scheduled IMEs. Its affidavit sufficiently demonstrated that it had not received the two claim forms, rather than merely denying receipt in conclusory terms. An employee of the IME scheduling company established timely mailing of the scheduling letters through standard office practices, and the examining healthcare professionals established the assignor's nonappearance. A claims examiner also sufficiently described standard mailing procedures for denial forms. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51733(U)
Insurer prevailed
MVAIC established a timely denial based on the provider's failure to submit written proof of claim within 45 days of the services. MVAIC sought summary judgment dismissing the assigned no-fault claim under 11 NYCRR 65-1.1. The provider's challenge to the timeliness of the denial failed. Its request for discovery under CPLR 3212 (f) did not defeat the motion because the discovery sought was not essential to justify opposition, and it raised no triable issue against MVAIC's prima facie showing. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order granting MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51732(U)
Insurer prevailed
A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle in which its assignor was a passenger. After a nonjury trial, Civil Court, Kings County, found the submitted documentation sufficient to establish the assignor's entitlement to MVAIC coverage and awarded benefits. The provider and assignor knew the vehicle owner's identity, but the provider did not demonstrate exhaustion of remedies against that owner. The Appellate Term, Second Department, reversed the judgment and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51730(U)
Provider prevailed
The insurer's motion to vacate a settlement-default judgment was unnecessary because the judgment it challenged had never been entered. After missing the settlement payment deadline, the insurer moved to vacate what it believed was a judgment reflecting increased interest, attaching the provider's proposed judgment. No judgment existed when it moved. While the motion was pending, the clerk entered a judgment, unknown to the parties and motion court, for the amounts payable upon compliance with the settlement. The Appellate Term, Second Department, reversed the order granting vacatur and denied the motion as unnecessary; it did not decide whether the clerk's judgment was proper or whether the settlement default was excusable.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51729(U)
Insurer prevailed
The insurer established that IME scheduling letters were addressed to its insured at the address the insured supplied. In this action for assigned no-fault benefits, the provider challenged dismissal on the ground that the insurer had mailed the letters to an incorrect address. The insurer also demonstrated that copies were addressed to, and received by, the assignor's attorney. The Appellate Term, Second Department, rejected the address challenge and affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint based on the assignor's failure to appear for duly scheduled IMEs. The provider's remaining appellate contentions lacked merit.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51738(U)
Insurer prevailed
The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature. The Appellate Term, Second Department, modified the order to grant the insurer's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's motion. Affirmed peer reviews supplied a factual basis and medical rationale, and the provider submitted no rebutting medical evidence. For the remaining claim, unrebutted affidavits established timely verification requests and follow-ups that remained unanswered when suit began, tolling the payment or denial period under 11 NYCRR 65-3.8 (a). The insurer avoided discovery preclusion by providing a reasonable law-office-failure excuse for its three-week delay in complying with a conditional discovery order and demonstrating meritorious defenses.
Appellate Term, Second Department
Oct 8, 2013
2013 NY Slip Op 51748(U)
Insurer prevailed
The insurer established full payment at the workers' compensation fee-schedule rate for chiropractic acupuncture. Its claims representatives established timely mailing of denials asserting that the provider's charges exceeded the permitted rate. A claims representative also established that the insurer properly used the chiropractic acupuncture schedule to calculate reimbursement, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The provider's attorney affirmation failed to raise a triable issue, and remaining contentions lacked merit or were first raised on appeal. The Appellate Term, Second Department, deemed the appeal taken from the ensuing judgment under CPLR 5501 (c) and affirmed summary judgment dismissing the complaint in favor of the insurer.
Appellate Term, First Department
Oct 7, 2013
2013 NY Slip Op 51647(U)
Provider prevailed
The provider's medical affidavit raised a triable issue whether a cervical MRI was necessary to rule out disc herniations. In this action for assigned first-party no-fault benefits, the insurer made a prima facie showing that the MRI testing lacked medical necessity. The provider's opposing affidavit detailed the assignor's pain complaints and restricted cervical range of motion and explained why the MRI was needed. That submission sufficed to create a factual dispute concerning medical necessity. The Appellate Term, First Department, therefore affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.
Trial court, First Department
Oct 8, 2013
2013 NY Slip Op 23470
Provider prevailed
The insurer failed to justify its EUO request or offer admissible proof of the injured claimant's nonappearance. The Supreme Court, New York County, denied the insurer's motion for summary declaratory judgment against a provider and default declaratory judgment against nine other defendants. Under 11 NYCRR 65-3.5 (e), an EUO request requires specific objective justification, which the insurer's submissions lacked. The insurer also omitted the business records purportedly documenting nonappearance; its witness's account of their contents was hearsay. The record left unresolved whether the requests went to the claimant's current address. Although scheduling during business hours was reasonable given the offered accommodations, the insurer failed to establish entitlement to relief under CPLR 3212 (b) or CPLR 3215 (f).
Trial court, First Department
Oct 7, 2013
2013 NY Slip Op 51630(U)
Split result
The insurer failed to establish its EUO defense on summary judgment because it omitted the policy and relied on an unsupported attorney affirmation. In a declaratory judgment action alleging the injured claimant's EUO nonappearance, the Supreme Court, New York County, denied summary judgment under CPLR 3212 against four opposing providers. The attorney lacked personal knowledge, and mailing and service affidavits did not establish the policy's terms or their breach. Denial was without prejudice to a motion after discovery, within 60 days of filing the note of issue. The insurer nevertheless obtained default judgment under CPLR 3215 against the injured claimant and three other providers, which had neither answered nor appeared and submitted no opposition.
