Appellate Division, Second Department
Jan 29, 2014
2014 NY Slip Op 00500
Provider prevailed
The insurer's contention that a complete absence of coverage survived its untimely denial was improperly raised for the first time on appeal. The provider established through admissible evidence that its prescribed billing form was mailed to and received by the insurer, which failed to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer's opposition raised no triable issue of fact. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the provider summary judgment on its first cause of action. The court did not reach the provider's remaining contentions.
Appellate Division, Second Department
Jan 8, 2014
2014 NY Slip Op 00092
Insurer prevailed
The assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits. The insurer proved two duly demanded EUOs, the assignor's failure to appear at each, and timely denials, establishing a material policy breach. The providers raised no factual issue concerning the demands' propriety or the assignor's attendance. Their claim that outstanding discovery made summary judgment premature also failed under CPLR 3212 (f): they did not identify information they hoped to obtain that could demonstrate a triable issue. The Appellate Division, Second Department, affirmed the portion of the judgment declaring, upon the insurer's summary judgment motion, that the appealing providers could not recover benefits.
Appellate Term, First Department
Jan 31, 2014
2014 NY Slip Op 50093(U)
Provider prevailed
MVAIC waived objections to the sufficiency of the assignor's notice of intention to make claim by failing to timely raise them. Following a nonjury trial, the providers obtained judgment for assigned no-fault benefits. MVAIC relied on claimed omissions from the timely notice to dispute the assignor's status as a qualified person, but it neither timely objected nor sought verification and had acknowledged the notice as received and completed in full. Following New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., the Appellate Term, First Department, affirmed. MVAIC also could not revive its argument concerning failure to report the accident to police within 24 hours, having abandoned that issue on its prior appeal.
Appellate Term, Second Department
Jan 28, 2014
2014 NY Slip Op 50134(U)
Insurer prevailed
The insurer proved timely mailing of its EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims. Affidavits describing standard office practices established mailing, and the attorney who was present to conduct the EUOs established nonappearance. Because the provider did not claim to have responded to the EUO requests, its objections to their justification would not be heard. Discovery concerning the reasonableness of those requests was therefore unnecessary to oppose the motion and did not warrant denial under CPLR 3212 (f).
Appellate Term, Second Department
Jan 28, 2014
2014 NY Slip Op 50130(U)
Insurer prevailed
The provider's evidentiary objections failed, and dismissal of the challenged claims for lack of medical necessity was affirmed. The Appellate Term, Second Department, cited Park Slope Med. & Surg. Supply, Alrof and Urban Radiology to reject the hearsay objection to the insurer's doctor's testimony, without further analysis. The provider did not challenge the testimony's substance; recovery for a massager and a Thermophore was not at issue.
Appellate Term, Second Department
Jan 27, 2014
2014 NY Slip Op 50128(U)
Provider prevailed
Conflicting medical expert opinions raised a triable issue of fact concerning the medical necessity of the provider's services. The insurer sought summary judgment dismissing two assigned no-fault claims denied for lack of medical necessity. Contrary to District Court's determination, the insurer's affidavit established timely mailing of its denial forms. Nevertheless, the parties' conflicting expert opinions precluded summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the denial of the insurer's motion in place.
Appellate Term, Second Department
Jan 10, 2014
2014 NY Slip Op 50052(U)
Insurer prevailed
The provider's no-fault action was barred by res judicata because a default declaratory judgment denied its right to benefits. The insurer had named the provider in a Supreme Court declaratory judgment action alleging failure to appear for scheduled EUOs. The provider later commenced this action, and Supreme Court subsequently declared on default that the named providers were not entitled to benefits arising from the accident. The Appellate Term, Second Department, affirmed dismissal of the complaint because a judgment for the provider would destroy or impair rights established by the declaratory judgment.
Trial court, First Department
Jan 13, 2014
2014 NY Slip Op 50016(U)
Insurer prevailed
The assignors' EUO nonappearances entitled the insurer to a declaration denying no-fault coverage to the two answering providers. The Supreme Court, New York County, granted the insurer summary judgment based on scheduling letters, service affidavits and counsel's firsthand proof of nonappearance. Applying Unitrin and 11 NYCRR 65-1.1, it treated nonappearance as a breach of a coverage condition permitting retroactive denial regardless of denial timeliness. The providers' attorney affirmation lacked personal knowledge and raised no factual issue. Their objection to document demands also failed: requests for insurance, injury, identification and collision materials did not concern a Mallela defense and thus were distinguishable from the corporate-document demands addressed in Dynamic Medical Imaging.
