Appellate Division, Second Department
Nov 20, 2013
2013 NY Slip Op 07727
Provider prevailed
A master arbitrator may apply the law to the facts even when that conclusion differs from the arbitrator's. The insurer sought to vacate a master arbitrator's award that had vacated the underlying arbitration award. The Appellate Division, Second Department, affirmed denial of the insurer's CPLR article 75 petition and confirmation of the master arbitrator's award. Under former 11 NYCRR 65.19 (a) (4) and Insurance Law § 5106, the master arbitrator did not exceed the permissible powers of review by vacating an award that, in light of the evidence, was incorrect as a matter of law.
Appellate Division, First Department
Nov 12, 2013
2013 NY Slip Op 07416
Insurer prevailed
⚠ Not followed by Matter of Mercury Cas. Co. (Patient Care Assoc.) (2015 NY Slip Op 08891)
The insurer's proof of IME notice mailing and the assignor's nonappearance established entitlement to a declaration of no coverage. The service affidavit showed mailing to the assignor and counsel, and the doctor's affidavit established nonappearance. A returned letter from counsel to the assignor with an apparently misspelled street name did not rebut the mailing presumption; service on counsel was also unrebutted. IME attendance was undisputedly a condition precedent to coverage. The Appellate Division, First Department, reversed the order, insofar as appealed from, granted the insurer summary judgment against two providers, and declared no coverage duty. A third provider's opposition made its adverse ruling appealable under CPLR 5511 despite a reference to default, but its request for relief without an appeal was rejected on the merits.
Appellate Division, First Department
Nov 7, 2013
2013 NY Slip Op 07273
Insurer prevailed
Failure to attend duly scheduled IMEs voids the policy ab initio and permits retroactive denial of claims regardless of denial timeliness. In two actions, the insurer established mailing of IME notices and the assignors' nonappearance through sworn affidavits of the examining physician and an employee. The affidavits were not conclusory: they established personal knowledge, the employee's role, and the physician's knowledge of nonappearance procedures. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the coverage defense did not require timely denials under 11 NYCRR 65-3.8 (c). The Appellate Division, First Department, reversed the orders, insofar as appealed from, granted the insurer's summary judgment motions, and declared no coverage obligation to the provider for either claimant.
Appellate Term, Second Department
Nov 29, 2013
2013 NY Slip Op 52014(U)
Insurer prevailed
An insurer's defective certificate of conformity for an out-of-state affidavit may be cured nunc pro tunc. The insurer sought summary judgment based on the assignor's failure to attend IMEs. Its affidavits established timely mailing of the scheduling letters and nonappearance, but the provider timely objected to the claims representative's affidavit proving timely denials because its certificate did not satisfy CPLR 2309 (c) and Real Property Law § 299-a. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and conditionally granted the insurer's motion. The insurer had to serve and file an identical affidavit with a conforming certificate within 60 days; otherwise, the denial of its motion would be affirmed.
Appellate Term, Second Department
Nov 29, 2013
2013 NY Slip Op 52016(U)
Insurer prevailed
The insurer obtained a stay pending a declaratory judgment action to avoid inconsistent adjudications and waste of judicial resources. The insurer's Supreme Court action alleged a scheme involving staged accidents and fraudulent billing and sought a declaration that no-fault benefits were not owed. Both the provider and its assignor were defendants in that action. Applying the broad discretion afforded by CPLR 2201, the Appellate Term, Second Department, found no improvident exercise of discretion in staying the provider's benefits action pending final determination of the declaratory judgment action and affirmed the stay order.
Appellate Term, Second Department
Nov 29, 2013
2013 NY Slip Op 52021(U)
Provider prevailed
The provider was not bound by its assignor's coverage arbitration because the assignment preceded that proceeding and the provider was not a party. The arbitrator directed another insurer, which first received notice, to process the claims. The provider had no full and fair opportunity to defend its interests and was not in privity with the assignor for purposes of preclusion. It independently proved claim submission, the fact and amount of loss, and failure to pay or deny within 30 days under Insurance Law § 5106 (a). The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion under CPLR 3212 and CPLR 3211 (a) (5).
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52005(U)
Provider prevailed
An EUO rescheduled by mutual agreement before its scheduled date does not constitute a failure to appear. The insurer denied the provider's assigned no-fault claim for the assignor's alleged nonappearance at EUOs and cross-moved for summary judgment dismissing the complaint. Its counsel's affirmation showed that the initial EUO had been rescheduled by mutual agreement before it was to occur. Following DVS Chiropractic, P.C. v Interboro Ins. Co., the court concluded that the insurer had not demonstrated failures to attend both an initial and a follow-up EUO and therefore had not proved noncompliance with a condition precedent to coverage. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52012(U)
Insurer prevailed
The insurer's EUO request was nine days late, but its denial remained timely within the resulting 21-day period. The request was mailed 24 business days after receipt of the claim, exceeding the 15-business-day limit in 11 NYCRR 65-3.5 (b). Under 11 NYCRR 65-3.8 (j), the delay reduced the payment-or-denial period from 30 to 21 calendar days; denial followed 20 days after the final EUO nonappearance. The timeliness argument was considered despite first being raised on appeal because it presented unavoidable law on the record. Burdensomeness objections were rejected because the provider had not responded to the request. The Appellate Term, Second Department, affirmed Civil Court, Queens County's judgment dismissing the complaint on the insurer's summary judgment motion.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52000(U)
Insurer prevailed
The insurer's affidavits established timely IME notices and denials and the assignor's failure to attend the scheduled IMEs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint. A supervisor of the retained scheduling company established timely mailing of the IME requests. Affidavits from the physician and chiropractor who were to conduct the respective IMEs established nonappearance, and the claims examiner established timely mailing of the denials on that ground. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and 11 NYCRR 65-1.1, this proof entitled the insurer to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52001(U)
Split result
The insurer established its EUO nonappearance defense to four claims but left the provider's awards on two other claims unchallenged. Its affidavits established proper EUO scheduling and mailing; the investigator's affidavit and recorded statements established nonappearance. The four claims were denied within 30 days of receipt under 11 NYCRR 65-3.8 (a), establishing failure to comply with a coverage condition. For the claim allegedly never received and the fee-schedule balance claim, the insurer neither raised the EUO defense below nor established timely denials on that ground, and offered no appellate argument against the awards. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the four EUO-denied claims and affirmed summary judgment for the provider on the other two.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52010(U)
Split result
The insurer's unrebutted peer review established lack of medical necessity for nerve testing, but its later IME did not address other testing. The provider established submission of the bills and the fact and amount of loss, leaving medical necessity for trial under CPLR 3212 (g). The peer review supplied a factual basis and medical rationale for denying nerve testing, and the provider did not rebut that showing. For the other testing, the insurer relied on an IME performed nearly a year later that did not address the services. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's cross motion as to nerve testing, while affirming denial of summary judgment on the other testing and the findings favoring the provider.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52003(U)
Insurer prevailed
The insurer's unrebutted sworn peer review established lack of medical necessity for the billed services. Both parties' summary judgment motions had been denied, with medical necessity identified as the only issue for trial under CPLR 3212 (g). The insurer's sworn report set out a factual basis and medical rationale for the reviewer's determination. The provider failed to rebut that showing and did not challenge the Civil Court's 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 provider's assigned no-fault claims.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52011(U)
Insurer prevailed
The insurer's EUO scheduling letters were timely mailed and tolled the 30-day claim determination period. The provider appealed from summary judgment dismissing its assigned no-fault claims based on its failure to appear for scheduled EUOs. The insurer's attorney affirmation established mailing through the law firm's standard office practices and procedures. Although the provider challenged separate letters purporting to delay payment, the EUO scheduling letters themselves supplied the necessary toll. The provider's objection that the affidavit proving timely mailing of denials failed to comply with CPLR 2309 (c) was raised for the first time on appeal and was waived. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52007(U)
Insurer prevailed
Denial forms offered only to identify the denials at issue, rather than prove the truth of their stated grounds, are not hearsay. The claims representative's affidavit established timely mailing of denials and submission of the provider's claims more than 45 days after supplies were furnished, contrary to 11 NYCRR 65-1.1. The denials adequately explained the grounds and advised that reasonable justification could excuse lateness under 11 NYCRR 65-3.3 (e). Because the denials were offered only for identification, they required no business-record foundation under CPLR 4518 (a). The Appellate Term, Second Department, reversed Civil Court, Kings County's order denying the self-insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 51997(U)
Insurer prevailed
An insurer need not produce a policy to establish an EUO provision where the mandatory endorsement necessarily requires one. The provider challenged summary judgment dismissing its claims for failure to appear at scheduled EUOs, arguing that the insurer's mailing proof was insufficient and that the insurer had to establish a policy provision authorizing EUOs. The affidavits sufficiently described standard mailing practices for scheduling letters and denial forms. Under 11 NYCRR 65-1.1 (b), the policy necessarily contained an EUO provision and would be construed to include one even if omitted. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 51995(U)
Insurer prevailed
The provider's doctor's affirmation failed to rebut the insurer's peer review on the medical necessity of the supplies. The Civil Court denied the insurer's summary judgment motion and limited trial to medical necessity under CPLR 3212 (g). The insurer's sworn peer review set out a factual basis and medical rationale for finding the supplies unnecessary. The opposing affirmation did not meaningfully address or rebut those conclusions under Pan Chiropractic, P.C. v Mercury Ins. Co. The provider also did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 51998(U)
Insurer prevailed
The insurer's examining healthcare professional established that the assignor failed to attend two scheduled IMEs. The Civil Court denied both parties' summary judgment motions but found that the insurer had timely and properly requested IMEs and timely denied the claims, leaving nonappearance as the sole trial issue. The retained healthcare professional's affidavit established the two failures to appear. Attendance was a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., and the provider 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
Nov 26, 2013
2013 NY Slip Op 51999(U)
Insurer prevailed
The provider's doctor's affirmation failed to rebut the insurer's peer review finding that the medical supplies lacked medical necessity. The insurer moved for summary judgment dismissing the assigned no-fault claims and established timely mailing of its denials. Its sworn peer review supplied a factual basis and medical rationale for the determination that the supplies were unnecessary. The opposing doctor's affirmation did not meaningfully address the peer review's conclusions and therefore failed to raise a triable issue under Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52002(U)
Provider prevailed
The insurer's cross motion for summary judgment on medical necessity was denied on appeal because a triable issue remained. The Appellate Term, Second Department, reversed the order, insofar as appealed from, finding a factual issue concerning the medical necessity of the billed services under Zuckerman v City of New York. It declined the provider's request to limit the issues for trial under CPLR 3212 (g).
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52004(U)
Insurer prevailed
The insurer's unrebutted sworn peer review established that the services lacked medical necessity. The Civil Court denied the provider's motion and the insurer's cross motion for summary judgment, identifying medical necessity as the sole issue for trial under CPLR 3212 (g). The insurer's peer review supplied a factual basis and medical rationale for the determination that the services were unnecessary. The provider did not rebut that showing 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 for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52008(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's claim was granted on proof that the claim had been paid. The Appellate Term, Second Department, deemed the appeal taken from the ensuing judgment under CPLR 5501 (c) and affirmed. It found that the insurer established payment prima facie and that the provider failed to raise a triable issue of fact.
Appellate Term, Second Department
Nov 26, 2013
2013 NY Slip Op 52009(U)
Insurer prevailed
The insurer's unrebutted peer review established that the medical supply lacked medical necessity. The Civil Court denied both parties' summary judgment motions and limited trial to medical necessity under CPLR 3212 (g). In support of its cross motion, the insurer submitted a peer review report and the reviewing chiropractor's affidavit, supplying a factual basis and medical rationale for the determination. 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.
Appellate Term, Second Department
Nov 21, 2013
2013 NY Slip Op 51994(U)
Split result
The insurer's untimely denials precluded defenses to three claims, while timely EUO denials defeated summary judgment on six others. The Appellate Term, Second Department, modified the order to preserve the provider's awards on the three claims, deny summary judgment on the six, and compel depositions solely on billing practices. A delay letter failed to toll the 30-day period. For the six claims, the insurer proved timely notices, EUO nonappearance, and timely denials under 11 NYCRR 65-3.8 (j). Under 11 NYCRR 65-3.6 (b), an EUO follow-up sent within 10 days after nonappearance was not premature. Nonappearance implicated 11 NYCRR 65-1.1. The insurer preserved its fee-schedule defense in the denial form but was precluded from pursuing an unasserted treatment defense.
Appellate Term, Second Department
Nov 21, 2013
2013 NY Slip Op 52054(U)
Insurer prevailed
The insurer established timely EUO notices and denials and both assignors' nonappearances, warranting dismissal of their assigned claims. The majority treated attendance as a condition precedent to liability under 11 NYCRR 65-1.1 and found that each assignor failed to attend either duly scheduled EUO. The provider's opposition raised no triable issue of fact. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the claims arising from the two assignments at issue on appeal. One justice dissented, finding that the insurer had not supplied evidence from a person with personal knowledge establishing nonappearance.
Appellate Term, First Department
Nov 20, 2013
2013 NY Slip Op 51925(U)
Insurer prevailed
MVAIC established a timely fee-schedule denial, and the provider raised no triable issue concerning mailing or the fee calculation. The provider sought the difference between its charges for acupuncture services and payments made under the workers' compensation fee schedule. MVAIC's affidavits established timely denial on the ground that the charges exceeded the permitted amount, and the provider's opposition did not raise a factual issue concerning either mailing or calculation. The Appellate Term, First Department, reversed Civil Court, Bronx County's order, insofar as appealed from, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, First Department
Nov 14, 2013
2013 NY Slip Op 51860(U)
Insurer prevailed
The insurer properly reimbursed a licensed acupuncturist at the workers' compensation fee-schedule rate for chiropractic acupuncture. The provider sought the difference between its billed rate of $120 per session and the insurer's payment of $29.30 per session. Because no fee schedule had been adopted for licensed acupuncturists, 11 NYCRR 68.5 (b) permitted reimbursement at the rate for similar procedures under an existing schedule. The provider failed to establish or raise a triable issue that its services were not similar to the chiropractic procedure used for comparison. Full payment at that rate was undisputed. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.
Appellate Term, Second Department
Nov 12, 2013
2013 NY Slip Op 52322(U)
Provider prevailed
A provider that proves its claim at trial need not also show that the insurer has no meritorious defense. The provider's witness had sufficient personal knowledge of its practices to establish a business-record foundation under CPLR 4518. The admitted claim forms proved the fact and amount of loss, and testimony established submission and nonpayment. The insurer offered no defense and rested on the record. Unlike summary judgment under CPLR 3212 (b), trial placed the burden of proving a meritorious defense on the insurer. The Appellate Term, Second Department, reversed the judgment dismissing the complaint and remitted for judgment for the provider, including statutory interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Nov 12, 2013
2013 NY Slip Op 51915(U)
The provider was denied an opportunity to introduce claim forms and elicit nonpayment testimony before judgment was directed against it. At a nonjury trial jointly conducted with seven other actions, counsel marked exhibits for identification, but the Civil Court dismissed the complaint before counsel could offer them. The provider's witness had sufficient personal knowledge of its business practices to establish a business-record foundation under CPLR 4518 and nonpayment. The claim forms would have constituted prima facie evidence of the fact and amount of loss. The Appellate Term, Second Department, reversed the judgment and remitted the matter for a new trial because the directed judgment prematurely cut off the provider's proof.
Appellate Term, Second Department
Nov 12, 2013
2013 NY Slip Op 51916(U)
Insurer prevailed
The provider's appeal from default vacatur was dismissed as academic after the insurer obtained unopposed summary judgment. The provider sought review of an order vacating its default judgment under CPLR 5015 (a) (1) in an assigned no-fault action. A subsequent Civil Court order granted the insurer's unopposed motion for summary judgment dismissing the complaint. In light of that later order, the Appellate Term, Second Department, dismissed the appeal as academic under Livny v Rotella.
Appellate Term, Second Department
Nov 12, 2013
2013 NY Slip Op 52328(U)
Insurer prevailed
Statutory interest on these timely denied no-fault claims accrued from completed service of the complaint, rather than filing. The provider did not sue within 30 days after receiving the denials, so 11 NYCRR 65-3.9 (c) suspended interest until it instituted the action. Although CCA 400 (1) makes filing the act of commencement, CCA 412 postpones interest accruing from an action's inception until service is completed with the actual index number properly depicted and provided to the charged party. After a trial judgment for the provider, the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer's motion to modify the judgment, and remitted for recalculation from the service date.
Trial court, Second Department
Nov 22, 2013
2013 NY Slip Op 52044(U)
Insurer prevailed
MVAIC proved lack of coverage despite mailing qualification letters to the assignor at the incorrect address supplied on the provider's bills. The assignment listed a different, correct address, but the provider received four notices identifying missing qualification documents. Neither provider nor assignor supplied the required notice of intention, police report, or other requested items. The Civil Court, Kings County, dismissed the action because the assignor had not qualified under Insurance Law § 5202 (b), Insurance Law § 5208, and Insurance Law § 5221 (b) (2). The provider, standing in the assignor's shoes, had to transmit the correct address and ensure qualification. The lack-of-coverage defense was not subject to 30-day preclusion, so timely mailing of qualification letters was unnecessary to preserve it.
Trial court, Second Department
Nov 21, 2013
2013 NY Slip Op 51935(U)
Insurer prevailed
The provider's EUO objections were unpreserved, and the insurer established timely notices and denials and the provider's nonappearance. The Civil Court, Kings County, denied the provider's summary judgment motion, granted the insurer's motion, and dismissed the action. The investigator substantiated the EUO request, but the provider had not objected to the notices before litigation. Although the court found no authority under 11 NYCRR 65-3.5 for demanding corporate and financial documents a week before an EUO, it declined to consider the unpreserved objection. Office-practice affidavits, a postal receipt, and counsel's affirmation established mailing and nonappearance. Applying 11 NYCRR 65-1.1 and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the court also treated EUO noncompliance as voiding coverage regardless of denial timing.
