Appellate Division, Second Department
Apr 30, 2014
2014 NY Slip Op 02902
Insurer prevailed
The providers' unexcused EUO nonappearances breached a condition precedent to coverage and warranted summary judgment for the insurer. On renewal, the insurer proved two duly demanded EUOs, two failures to appear, and timely denials. The providers offered no reasonable excuse or evidence of partial performance and raised no factual issue concerning the demands' reasonableness or propriety. Their willingness to cooperate, expressed more than two years after the loss and only in response to the summary judgment motion, did not cure the breach. The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted the insurer summary judgment, and remitted for a declaration of no obligation to pay the subject claims; it did not reach the insurer's remaining contention.
Appellate Division, First Department
Apr 15, 2014
2014 NY Slip Op 02541
A health insurer cannot recover no-fault benefits as an injured claimant's assignee under 11 NYCRR 65-3.11 (a). The regulation permits payment to the applicant or, upon assignment, providers of health care services; the plaintiff was a health insurer rather than a provider. The limited interinsurer arbitration provisions of Insurance Law §§ 5105 and 5106 (d) did not apply to a health insurer, so it could not maintain a subrogation claim against the no-fault insurer. Its contract claim also failed for lack of privity or a showing of intended third-party beneficiary status. The Appellate Division, First Department, affirmed dismissal of the complaint and denial of the health insurer's motion for summary judgment on liability.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50786(U)
Provider prevailed
The insurer's denials admitted receipt of the bills, and the provider did not need a CPLR 4518 foundation for them. After denying the provider summary judgment, the Civil Court made CPLR 3212 (g) findings in its favor and limited trial to medical necessity. The insurer failed to establish a basis to strike those findings. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., a business-records foundation was unnecessary. The order's direction for trial also showed that it did not conclusively establish that the denials were untimely, conclusory, vague, or legally meritless. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's favorable findings.
Appellate Term, First Department
Apr 30, 2014
2014 NY Slip Op 50697(U)
Provider prevailed
An insurer may obtain plenary judicial adjudication of a no-fault dispute only if the master arbitrator's award is at least $5,000. The insurer sought declaratory relief and trial de novo concerning five awards favoring providers, then moved for default judgments. Under Insurance Law § 5106 (b) and Matter of Greenberg, none qualified for plenary review because each award fell below the threshold; review was limited to CPLR article 75 grounds. Although the Civil Court had jurisdiction under CCA 212-a, the complaints stated no viable cause of action. The Appellate Term, First Department, affirmed denial of the default-judgment motion and sustained dismissal of the consolidated actions.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50780(U)
Insurer prevailed
The provider's claim was submitted more than 45 days after the services, and the provider offered no justification for the delay. The insurer's litigation supervisor's affidavit established both the late submission under 11 NYCRR 65-1.1 and timely mailing of the denial. The denial adequately identified its basis and advised that reasonable justification could excuse the lateness under 11 NYCRR 65-3.3 (e). The provider supplied no reason for the delay. The Appellate Term, Second Department, affirmed the order granting the insurer's cross motion for summary judgment dismissing the complaint and implicitly denying the provider's motion for summary judgment.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50771(U)
Provider prevailed
The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding a triable medical-necessity issue. It preserved the findings for the reasons stated in EMC Health Prods., Inc. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50772(U)
Split result
The provider failed to rebut a peer review finding that an existing physical therapy plan rendered the disputed supplies unnecessary. The insurer's report supplied a factual basis and medical rationale, while the provider's doctor's affirmation did not meaningfully address that determination. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment on those supplies; denial remained for the other supplies, whose medical necessity presented a factual issue. The provider's CPLR 3212 (g) findings remained intact, citing EMC Health Prods. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50773(U)
Split result
The provider failed to rebut peer review findings that the EMS items, back massager, and heating pad were superfluous. The reviewers relied on the assignor's receipt of physical therapy and chiropractic and acupuncture treatment. The provider's doctor's affirmation raised factual issues for the other supplies but did not meaningfully address those findings. 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, back massager, and heating pad; it affirmed denial for the remaining supplies. It preserved the provider's CPLR 3212 (g) findings, citing EMC Health Prods. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50774(U)
Provider prevailed
The insurer's summary judgment cross motion was denied because requested verification presented a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding a factual issue whether verification remained outstanding. It upheld the provider's CPLR 3212 (g) findings for the reasons stated in EMC Health Prods., Inc. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50775(U)
Provider prevailed
The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding a triable issue concerning the supplies' medical necessity. It cited EMC Health Prods. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day, in preserving the findings.
Appellate Term, Second Department
Apr 30, 2014
2014 NY Slip Op 50776(U)
Provider prevailed
The insurer's summary judgment cross motion on medical necessity was denied, and the provider's CPLR 3212 (g) findings were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding a triable medical-necessity issue. It preserved the findings for the reasons stated in EMC Health Prods., Inc. v Geico Ins. Co., companion appeal No. 2012-1208 K C, decided the same day.
Appellate Term, First Department
Apr 29, 2014
2014 NY Slip Op 50679(U)
The providers' judgment was vacated because the record showed no evidentiary trial or agreed facts and contained no findings or reasoning. On the scheduled trial date, the Civil Court entered judgment after an untranscribed colloquy with counsel. So far as the record showed, no sworn testimony was elicited and no documents were admitted. Nor was there any indication of submission on an agreed statement of facts under CPLR 3222 (a). The failure to state findings, reasoning or conclusions violated CPLR 4213 (b). Given the deficient record, the Appellate Term, First Department, reversed the judgment in favor of the providers, vacated it and remanded for a trial de novo in the action against MVAIC.
Appellate Term, First Department
Apr 9, 2014
2014 NY Slip Op 50554(U)
Split result
Conflicting expert opinions on acupuncture's medical necessity precluded summary judgment for the provider. The provider itself acknowledged factual issues warranting trial. The Appellate Term, First Department, modified the order, insofar as appealed from, to vacate summary judgment awarded to the provider upon a search of the record, while affirming denial of the insurer's summary judgment motion. It also affirmed denial of the insurer's alternative motion to compel the treating provider's deposition. The record contained an affidavit explaining the treatment rationale, and the insurer failed to show an articulable need for a deposition, so denial was within the motion court's discretion.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50634(U)
Insurer prevailed
An out-of-state affidavit's lack of a certificate of conformity under CPLR 2309 (c) is not a fatal defect. The Civil Court improperly excluded the insurer's notarized affidavit on that ground. The insurer established timely mailing of EUO scheduling and follow-up letters and the denial, while certified transcripts demonstrated the assignor's nonappearance. The provider did not claim any response to the requests. That proof established failure to satisfy a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50629(U)
Split result
The insurer established lack of medical necessity for three claims and outstanding verification for two, but failed on two others. Its affirmed peer review supplied unrebutted factual and medical grounds for denying three claims. For two undenied claims, the provider submitted no affidavit from someone with personal knowledge establishing responses to verification requests. Inaction was an improper response, so objections to the requests' reasonableness would not be heard. The insurer offered no proof of fee-schedule payment for another claim and did not address the final claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting the insurer summary judgment on the three medical-necessity and two verification claims while leaving the fee-schedule and unaddressed claims for trial.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50632(U)
Insurer prevailed
An insurer need not mail initial IME scheduling letters to the provider when seeking an IME of the assignor. The Civil Court denied summary judgment on an IME nonappearance defense, leaving timely and proper mailing to the provider as the sole trial issue. The scheduling company's employee established timely mailing to the assignor through standard office practices. Under 11 NYCRR 65-3.5 (b), 11 NYCRR 65-3.5 (c), and 11 NYCRR 65-3.6 (b), initial mailing to the provider was unnecessary. 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 summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50630(U)
Insurer prevailed
The insurer established that a $200 deductible and the applicable fee schedule justified the unpaid balance of the provider's claim. Its affidavits established timely mailing of the denial, contrary to the provider's challenge. The policy contained the deductible under 11 NYCRR 65-1.6, and the insurer denied that portion under Insurance Law § 5102 (b) (3). A claims representative's affidavit and the Medicaid DME schedule, adopted for workers' compensation under 12 NYCRR 442.2 (a), established that Code E0190 allowed $22.04, already paid, rather than the billed $24.00. The Appellate Term, Second Department, affirmed summary judgment for the insurer dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50625(U)
Provider prevailed
The insurer failed to prove the assignor's EUO nonappearance through someone with personal knowledge. In the provider's action for assigned first-party no-fault benefits, the insurer sought summary judgment dismissing the complaint, asserting timely and proper denials based on failure to attend duly scheduled EUOs. Following Alrof, Inc. v Safeco Natl. Ins. Co., the Appellate Term, Second Department, affirmed denial of the motion because the insurer had not supplied the required personal-knowledge proof.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50626(U)
Provider prevailed
CPLR 3212 (g) permits a court to limit factual issues for trial when denying or partially denying summary judgment. The Civil Court denied the provider's motion and limited trial to the denials' timeliness and propriety and the defenses preserved in them. Contrary to the insurer's position, that did not grant the provider summary judgment. The insurer supplied no sufficient basis to strike the findings. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's favorable findings.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50627(U)
Provider prevailed
CPLR 3212 (g) permits a court to limit factual issues for trial when denying or partially denying summary judgment. The Civil Court denied the provider's motion but limited trial to the denials' timeliness and propriety and the defenses preserved in them. Contrary to the insurer's argument, that order did not grant the provider summary judgment. The insurer also could not contest submission of the claim forms because it admitted receiving each one. It established no sufficient basis to strike the favorable findings. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the findings for the provider.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50631(U)
Insurer prevailed
The insurer established timely IME notices and the assignor's nonappearance, defeating the provider's claims. Scheduling-company and healthcare-professional affidavits proved mailing and nonappearance. The insurer received both claims after missed IMEs with two professionals. It alleged denial of one claim within 30 days of receipt and denial of the other within 30 days after receiving requested verification; its examiner established timely mailing of the requests and denials. Contrary to the provider's argument, the follow-up verification request complied with 11 NYCRR 65-3.6 (b). Because IME attendance was a condition precedent under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50633(U)
Insurer prevailed
The insurer's scheduling-company affidavit established timely mailing of the IME notices under standard office mailing practices. The insurer sought summary judgment dismissing assigned no-fault claims based on the assignor's failure to attend duly scheduled IMEs. The Civil Court denied the motion and identified mailing of the scheduling letters as the sole issue for trial. The affidavit resolved that issue, 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 motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 7, 2014
2014 NY Slip Op 50635(U)
Insurer prevailed
An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy. The scheduling company's employee established timely mailing of the IME letters through standard office practices, and the examining healthcare professionals' affidavits established nonappearance. The insurer's litigation examiner also established timely mailing of the denials. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that proof entitled the insurer to dismissal. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Apr 2, 2014
2014 NY Slip Op 50502(U)
Insurer prevailed
The providers' remaining claims were dismissed for failure to show a proper, timely workers' compensation application or good cause. A prior appellate order preserved summary judgment on three claims and required proof of an application to the Workers' Compensation Board within 90 days for the remaining claims, absent good cause to avoid dismissal. On renewal, the providers did not demonstrate a proper application under Workers' Compensation Law § 33 within that deadline or otherwise show good cause. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers summary judgment and granting the insurer's cross motion dismissing the remaining claims. It also recalled and vacated its prior decision and order.
Trial court, Second Department
Apr 11, 2014
2014 NY Slip Op 51021(U)
A loss-transfer award was vacated as to damages because the arbitrator irrationally shifted the burden to the responding insurer. The Supreme Court, Suffolk County, confirmed equal liability but vacated damages and remitted for redetermination under CPLR 7511 (d). The petitioning insurer supplied only a payment ledger, while the respondent disputed treatment and claimed it lacked supporting documentation. The arbitrator irrationally burdened the respondent with disproving damages without that documentation. Liability had a rational basis in the prior award and police report. Objections under CPLR 7511 (b) remained available on confirmation despite expiration of the 90-day vacatur period. The court rejected the court-reporter challenge under 11 NYCRR 65-4.5 (l) and frivolous-conduct fees under 22 NYCRR 130-1.1 (a); interest awaited redetermination.
