Appellate Term, Second Department
Mar 31, 2014
2014 NY Slip Op 50615(U)
Insurer prevailed
An untimely denial does not preclude an insurer's defense that the collision was staged in furtherance of insurance fraud. The parties stipulated that intentional causation was the sole jury issue, and an SIU investigator was the only witness. The testimony was relevant to lack of coverage under Central Gen. Hosp. v Chubb Group of Ins. Cos., so denial of a mistrial was proper. A fair interpretation of the evidence supported the jury's finding of an intentionally caused collision, warranting denial of judgment as a matter of law under CPLR 4401 and a new trial. The Appellate Term, Second Department, affirmed dismissal for the insurer and declined to consider factual assertions and materials outside the record.
Appellate Term, Second Department
Mar 31, 2014
2014 NY Slip Op 50619(U)
Insurer prevailed
The insurer's lack of New York City contacts defeated personal jurisdiction under CCA 404. The Michigan insurer's officer established that it was unauthorized to do business in New York and had delivered no insurance contracts to New York residents and maintained no offices or agencies or supplied goods or services there. The provider failed to meet its burden of establishing jurisdiction; omission of a certificate of conformity from the Michigan affidavit was not fatal. A jurisdictional ground must be decided before other dismissal grounds. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint on jurisdictional grounds, rather than the Civil Court's collateral-estoppel ground based on a Michigan declaratory judgment, and reached no other issue.
Appellate Term, Second Department
Mar 27, 2014
2014 NY Slip Op 50602(U)
The insurer's Pennsylvania rescission defense raised a triable coverage issue but did not establish that the assignor was not an innocent third party. The policy application listed Pennsylvania residency and garaging; its only New York connection was the assignor's injury while driving an insured vehicle there. New York's conflict-of-law rules therefore made Pennsylvania law controlling. Under Erie Ins. Exch. v Lake, rescission for the insured's material misrepresentation does not extend to innocent third parties injured without fault. The insurer's submissions tended to show the insured's fraud but did not conclusively establish the assignor's status. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion and affirmed denial of the insurer's cross motion.
Appellate Term, Second Department
Mar 27, 2014
2014 NY Slip Op 50601(U)
Insurer prevailed
The insurer's dismissal cross motion was timely under a so-ordered stipulation setting the deadline for service. The Civil Court had effectively denied the cross motion under CPLR 3211 (a) (5) because it was served late. In the assigned no-fault action, the stipulation governed the service deadline, and the insurer complied with it. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted the matter to the Civil Court to determine the merits of the insurer's cross motion.
Appellate Term, Second Department
Mar 27, 2014
2014 NY Slip Op 50607(U)
Split result
The provider's summary judgment award was vacated because outstanding verification presented a triable factual issue. The Appellate Term, Second Department, modified the order to strike the award made upon a search of the record and affirmed denial of the insurer's summary judgment motion, leaving neither party entitled to judgment.
Appellate Term, Second Department
Mar 21, 2014
2014 NY Slip Op 24091
Insurer prevailed
A party's failure to object does not supply good cause to entertain a summary judgment motion beyond CPLR 3212 (a)'s deadline. In an assigned no-fault benefits action, the Civil Court denied the insurer's motion as untimely but granted the providers' cross motion, made four months later. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the providers' cross motion. The providers offered no good cause for moving more than 120 days after filing the notice of trial, the Civil Court equivalent of a note of issue. Following Miceli and Brill, the court explained that merits and lack of prejudice do not permit consideration of an untimely motion without good cause.
Appellate Term, First Department
Mar 21, 2014
2014 NY Slip Op 50435(U)
Provider prevailed
The insurer's conclusory affidavit did not establish that the billed CPT codes fell outside the acupuncture provider's specialty. The record showed proper payment of a portion of the claims under the workers' compensation fee schedule, but factual issues remained concerning claims denied outright as outside the provider's specialty. Assuming without deciding that the claims examiner was qualified to give an expert opinion on that issue, the court found the affidavit insufficient to eliminate all factual disputes. Under Alvarez v Prospect Hosp., failure to meet the moving party's evidentiary burden required denial regardless of the opposing papers' sufficiency. The Appellate Term, First Department, reversed the order, denied the insurer's summary judgment motion, and reinstated the complaint.
Appellate Term, Second Department
Mar 21, 2014
2014 NY Slip Op 50527(U)
Provider prevailed
The insurer failed to establish that prior medical-necessity determinations collaterally estopped the providers' claims for later treatment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment dismissing the complaint. The insurer submitted only a prior trial decision, without judgments, and did not establish that one provider was a plaintiff in the prior actions. Even assuming the procedural requirements for collateral estoppel were satisfied, the earlier decision did not find that later disability could not be accident-related or that the assignor's condition could not worsen. The providers submitted doctors' affidavits describing disability warranting further treatment after the services previously litigated. The court left unresolved whether absence of disability on the IME and earlier treatment dates had been conclusively established.
Appellate Term, First Department
Mar 19, 2014
2014 NY Slip Op 50393(U)
Provider prevailed
The insurer's unopposed expert testimony failed to establish that the provider's diagnostic testing lacked medical necessity. The Appellate Term, First Department, affirmed the judgment awarding the provider assigned no-fault benefits after a nonjury trial. The trial court was entitled to reject the expert's sparse and confusing opinion, which reflected an admitted lack of knowledge of the assignor's medical condition at the time of testing. The absence of opposing expert testimony did not require acceptance of that opinion. Any misstatement in the trial court's written decision concerning the source of the records the expert reviewed did not undermine the result.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50465(U)
MVAIC failed to establish that the assignor was not a New York resident, while the provider failed to establish its prima facie case. The Appellate Term, Second Department, modified the order to deny MVAIC's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's motion. The provider did not show untimely payment or denial, or timely denials defective as a matter of law, under Insurance Law § 5106 (a). MVAIC had received a police report and sworn notice showing New York residency and same-day reporting of the alleged hit-and-run accident, establishing prima facie covered-person status under Insurance Law §§ 5202 (b), 5221 (b) (2) and 5208 (a) (2). The assignor's verification response did not establish nonresidency as a matter of law.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50475(U)
Provider prevailed
The provider's third-party biller's testimony was sufficient to establish its prima facie case at a nonjury trial. The insurer argued that the witness could not lay a business-record foundation under CPLR 4518 for the provider's claim forms. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the Appellate Term, Second Department, found the testimony sufficient. Because the insurer proffered no defense, the court affirmed the judgment awarding the provider assigned first-party no-fault benefits.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50468(U)
Provider prevailed
The insurer's IME nonappearance defense did not warrant summary judgment because timely denial remained a factual issue. The Civil Court denied both parties' summary judgment motions and, under CPLR 3212 (g), limited trial to mailing of the denial. On the insurer's appeal, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving denial of the insurer's cross motion in place. The record raised a factual question whether the insurer timely denied the claim after the assignor failed to appear for duly scheduled IMEs. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the court rejected the insurer's contention that this defense was not subject to preclusion for an untimely denial.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50472(U)
Split result
An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing the provider's first through fourth causes of action, while affirming denial of dismissal of the fifth through ninth causes of action. Affidavits established timely mailing of the IME scheduling letters, the assignor's nonappearance, and timely denials of the first four claims. Under 11 NYCRR 65-1.1, appearance at a duly scheduled IME is a condition precedent to liability. For the remaining claims, however, the insurer's employee affidavit failed to establish timely denials as a matter of law, leaving the insurer without entitlement to summary judgment on that defense.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50463(U)
Insurer prevailed
A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The provider obtained summary judgment on its assigned no-fault claims, while MVAIC's cross motion for summary judgment dismissing the complaint was denied. The provider and assignor knew the identity of the owner of the vehicle the assignor was driving, but the provider did not demonstrate exhaustion of remedies against that owner. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion and granted MVAIC's cross motion. Under CPLR 5501 (c), the appeal from the order was deemed taken from the subsequently entered judgment.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50462(U)
Insurer prevailed
Peer review reports are inadmissible to prove lack of medical necessity at trial, but their admission did not require reversal here. A nonjury trial was limited by stipulation to medical necessity, and the Civil Court dismissed the provider's complaint after finding that the insurer's doctor's testimony established that the supplies were unnecessary and that the provider failed to rebut the showing. On appeal, the provider challenged admission of the peer review reports but did not challenge the substance of the expert's testimony. The expert independently reviewed the assignor's medical records and established lack of medical necessity through testimony. The Appellate Term, Second Department, affirmed the judgment in the insurer's favor.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50464(U)
Provider prevailed
The insurer failed to establish a timely denial based on EUO nonappearance because it did not prove when it received the claims. The insurer obtained summary judgment dismissing the provider's action on the ground that the provider failed to attend scheduled EUOs. Its submissions, however, contained no admissible evidence establishing receipt dates for the claim forms. It therefore failed to demonstrate tolling of the 30-day period to pay or deny or timely mailing of its denial. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the court found that the insurer had not established freedom from preclusion of its nonappearance defense. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, and denied the insurer's motion.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50467(U)
Insurer prevailed
The provider's action was premature because the insurer had not received all requested verification before suit. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in the insurer's favor. The no-fault claims examiner's affidavit established timely mailing of the initial and follow-up verification requests. The insurer demonstrated that requested verification remained outstanding, and the provider did not show that it had supplied that verification before commencing the action. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny the claims therefore had not begun to run.
Appellate Term, Second Department
Mar 17, 2014
2014 NY Slip Op 50471(U)
Split result
An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing the provider's first, second, and fifth through eighth causes of action, while affirming denial of dismissal of the third and fourth causes of action. Affidavits established timely mailing of the IME scheduling letters, the assignor's nonappearance, and timely denials of the claims dismissed. Under 11 NYCRR 65-1.1, appearance at a duly scheduled IME is a condition precedent to liability. The insurer's employee affidavit did not establish timely denials of the third and fourth claims as a matter of law, so summary judgment on the nonappearance defense was unavailable for those claims.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50414(U)
Insurer prevailed
A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. At the nonjury trial, the issues were whether the assignor was a covered person and eligible for benefits under an insurance policy. The assignor's notice of intention to make claim identified insurers for both vehicles involved in the accident. The provider and assignor knew the identity of the owner of the vehicle the assignor was driving, but the provider did not demonstrate exhaustion of remedies against that owner. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the provider's judgment and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50415(U)
Split result
The insurer proved full fee-schedule payment of the acupuncture claims except the initial-visit claim, which remained payable. The Appellate Term, Second Department, modified the order to preserve provider summary judgment only for the initial visit billed under treatment code 99205, deny the provider's motion otherwise, and grant the insurer summary judgment dismissing the remaining claims. The provider's owner's affidavit established its prima facie entitlement, and the insurer raised no ground to dismiss the initial-visit claim. The court rejected the insurer's contention that 11 NYCRR 65-4.6 (i) barred attorney fees for that claim. For the other services, the insurer established full payment under the chiropractor acupuncture fee schedule, and counsel's opposing affirmation raised no triable issue.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50422(U)
Insurer prevailed
A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The provider sued for assigned first-party no-fault benefits, and the Civil Court denied MVAIC's motion for summary judgment dismissing the complaint. The provider and assignor knew the identity of the owner of the vehicle the assignor was driving at the time of the accident, but the provider did not demonstrate exhaustion of remedies against that owner. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the order and granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50417(U)
Provider prevailed
MVAIC's IME nonappearance defense was precluded because its scheduling letters were mailed more than 30 days after receipt of the claim. The provider obtained summary judgment, and MVAIC's cross motion to dismiss was denied. MVAIC also failed to establish a denial responsive to the bill: its general denial omitted the bill's amount and date and the supplies allegedly provided. Thus, even timely IME scheduling would not have established that MVAIC could assert its condition-precedent defense. The Appellate Term, Second Department, affirmed the resulting judgment for the provider. Because MVAIC raised no appellate challenge to the provider's prima facie showing, the court did not pass upon the propriety of the Civil Court's determination on that issue.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50410(U)
Insurer prevailed
The provider failed to establish entitlement to a default judgment because it did not show that its claim was overdue or improperly denied. The insurer did not appear or answer, and the provider's CPLR 3215 motion was unopposed. Nevertheless, the provider's papers showed neither a failure to pay or deny within 30 days nor a timely denial that was conclusory, vague, or without merit as a matter of law. Applying Insurance Law § 5106 (a) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the Appellate Term, Second Department, affirmed denial of leave to enter a default judgment.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50411(U)
Insurer prevailed
The provider's challenges to the insurer's mailing affidavits were raised for the first time on appeal and were unpreserved. The insurer obtained summary judgment dismissing the assigned no-fault action, and the Appellate Term, Second Department, affirmed the resulting judgment. The provider's argument that the insurer's employees lacked sufficient personal knowledge to establish timely mailing of the denial was improperly raised for the first time on appeal. Its objection that an affidavit failed to comply with CPLR 2309 (c) was likewise waived. The court further concluded that the CPLR 2309 (c) defect was not fatal because the provider suffered no prejudice.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50412(U)
Split result
The provider raised a factual issue on medical necessity but failed to rebut the insurer's fee-schedule defense to one claim. The insurer's affidavits established timely denials, and its employee showed that the unpaid balance of one partially paid claim exceeded the workers' compensation fee schedule. A sworn statement from the chiropractor who performed the IME supplied a factual basis and medical rationale for denying further treatment. In opposition, the treating chiropractor's sworn medical-necessity letter raised a triable issue concerning the remaining claims, but the provider raised no factual issue on the fee-schedule reduction. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment only on the unpaid portion of the partially paid claim.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50413(U)
Split result
IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations. The insurer established timely mailing to the assignor; 11 NYCRR 65-3.5 (b), (c) and 65-3.6 (b) did not require mailing to the provider. 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 reviewed on direct appeal and dismissed the first, second, and fifth causes of action under 11 NYCRR 65-1.1. It affirmed the provider's judgment on the third, fourth, sixth, and seventh causes of action because the insurer failed to show denials or otherwise raise a triable issue. The IME nonappearance defense was subject to preclusion for untimely denial.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50416(U)
Split result
The insurer established full payment under the chiropractor acupuncture fee schedule for all claims except one awarded to the provider. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's cross motion dismissing the remaining claims and affirmed summary judgment for the provider on the single claim awarded below. The provider's owner's affidavit established its prima facie entitlement under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., and the insurer raised no other issue concerning that claim. For the remaining claims, the insurer proved full payment under the workers' compensation fee schedule for acupuncture performed by chiropractors. The provider's counsel's affirmation failed to raise a triable factual issue.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50418(U)
Provider prevailed
The parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity. The insurer sought summary judgment dismissing the provider's action to recover assigned first-party no-fault benefits. Although the insurer sufficiently established timely mailing of its denial, the competing expert opinions prevented a determination as a matter of law that the services lacked medical necessity. Applying Zuckerman v City of New York, the Appellate Term, Second Department, affirmed the order denying the insurer's motion, leaving the provider's claims pending.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50419(U)
Insurer prevailed
The provider's claims were barred by a default declaratory judgment denying its entitlement to benefits from the same accident. The insurer moved to dismiss under CPLR 3211 (a) (5) and CPLR 3212. It established that a default judgment in Supreme Court, New York County, declared that the defendants named in that action, including the provider, were not entitled to recover assigned first-party no-fault benefits stemming from the accident. Because the provider's present action sought benefits arising from that same accident, dismissal was proper. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Mar 11, 2014
2014 NY Slip Op 50421(U)
Insurer prevailed
An assignor's appearance at an EUO is a condition precedent to the insurer's liability under the policy. The insurer cross-moved for summary judgment dismissing the provider's assigned no-fault claims based on the assignor's failure to appear for duly scheduled EUOs. The insurer established that timely EUO scheduling letters tolled the period to pay or deny, that neither scheduled EUO was attended, and that the claims were timely denied on that ground. Applying Stephen Fogel Psychological, P.C., 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
Mar 10, 2014
2014 NY Slip Op 50408(U)
Provider prevailed
The insurer's medical-necessity summary judgment motion was premature because the provider needed outstanding discovery to oppose it. The insurer relied on two peer review reports in seeking dismissal of assigned no-fault claims. The provider showed that it had requested but not received the medical documentation underlying the denials and needed that material to respond. Under CPLR 3212 (f), summary judgment may be denied when essential opposing facts may exist but cannot yet be stated, particularly without a reasonable opportunity for disclosure. The Appellate Term, Second Department, reversed the order, denied the insurer's motion with leave to renew after discovery, and granted the provider's CPLR 3124 cross motion, directing discovery responses within 60 days.
Appellate Term, Second Department
Mar 5, 2014
2014 NY Slip Op 24066
Insurer prevailed
The provider's seven years of inaction justified awarding prejudgment interest only from the filing of its notice of trial. After a nonjury trial awarded no-fault benefits, the provider appealed only the interest commencement date. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, in the insurer's favor. The insurer proved timely mailing of its denial. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 (c) and (d), interest ordinarily accrues from commencement when suit follows receipt of a denial by more than 30 days, unless the applicant unreasonably delays proceedings. The insurer's ability to advance the case did not excuse the provider's delay. Simple versus compound interest was outside the appeal's scope; correction could be sought under CPLR 5019 (a).
Appellate Term, First Department
Mar 5, 2014
2014 NY Slip Op 24054
Provider prevailed
The insurer showed no articulable need to depose the treating provider given the written discovery and medical affidavit. The provider supplied an operative report, answered interrogatories without objection, and submitted an affidavit explaining the surgical procedure's medical rationale. The insurer abandoned its summary judgment argument on appeal and pursued only its alternative deposition request. Following Vladimir Zlatnick, M.D., P.C. v Government Empls. Ins. Co., the insurer had to explain why written responses and documents were inadequate. Given that record and the small amount in dispute, the Appellate Term, First Department, found no abuse of discretion and affirmed the order, insofar as appealed from, denying compelled disclosure, favoring the provider.
Trial court, Second Department
Mar 26, 2014
2014 NY Slip Op 24080
Provider prevailed
An IME nonappearance supports denial only if there is some relationship between the missed IME and the treatment at issue. The insurer sought summary judgment on medical necessity and the assignor's failure to attend a psychiatric IME. The claims concerned a functional capacity evaluation, chiropractic treatment, and physical therapy. The District Court, Nassau County, denied the motion. Conflicting expert opinions raised factual questions about medical necessity. Although 11 NYCRR 65-1.1 (d) makes IME attendance a coverage condition, the court also considered the verification provisions of 11 NYCRR 65-3.5 (d) and 65-3.8 (a), and Insurance Law § 5102 (a) (1). The record showed no psychiatric injury or treatment, and the claimed services appeared unrelated to the assignor's psychiatric condition.
Trial court, Second Department
Mar 13, 2014
2014 NY Slip Op 24070
Provider prevailed
The provider's post-IME treatment records, admitted by stipulation, established medical necessity despite a limited adverse inference. At trial, the insurer's credible IME testimony supplied a factual basis and medical rationale for discontinuing physical therapy, shifting the burden under Amato. The District Court, Nassau County, nevertheless entered judgment for the provider. The treating doctor's later records documented ongoing symptoms, examination findings, and a rationale for continued therapy, and the insurer offered no contrary evidence concerning that later condition. Failure to call the treating doctor supported an inference limited to the earlier IME findings and did not defeat the records. The court discussed CPLR 4518 (a) but left unresolved whether a nontestifying doctor's opinions would be admissible over objection.
Trial court, Second Department
Mar 10, 2014
2014 NY Slip Op 50377(U)
Insurer prevailed
Michigan law permitted rescission for procurement fraud, but the insurer's summary judgment motion required a proper conformity certificate. The provider's assignor was an innocent passenger injured in New York. Applying the grouping-of-contacts approach, the Civil Court, Kings County, found Michigan had the most significant contacts: the policy was negotiated and issued there, incorporated Michigan law, and listed a Michigan address and garaging location. Under Titan Ins. Co. v Hyten, Michigan allowed rescission for fraud even against third parties. The court found the out-of-state affidavit's conformity certificate deficient under Real Property Law § 299-a (1), but curable nunc pro tunc. It allowed the insurer 45 days from receipt of the decision to supply a proper certificate, upon receipt of which it would grant summary judgment dismissing the action.
