Appellate Division, Second Department
May 28, 2014
2014 NY Slip Op 03812
Insurer prevailed
The insurer raised a factual issue as to whether verification requests tolled the deadline and its denial was timely. The providers established prima facie entitlement to payment, but the insurer submitted evidence that it issued a denial 29 days after receiving the last verification response. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), proper verification requests toll the 30-day payment or denial period. The insurer was not required to include a medical rationale in the denial or furnish its peer review report absent a written request under 11 NYCRR 65-3.8 (b) (4). The Appellate Division, Second Department, reversed the order, insofar as appealed from, and reinstated the denial of the providers' summary judgment motion on the first cause of action.
Appellate Division, First Department
May 15, 2014
2014 NY Slip Op 03594
Insurer prevailed
An insurer may investigate whether providers were fraudulently licensed under Public Health Law article 28 and ineligible for no-fault payment. The providers sued the insurer and its counsel on the premise that the insurer lacked that right. Following Mallela, the Appellate Division, First Department, found the investigation permissible and held that no cause of action lay against counsel for undertaking a legitimate investigation at the insurer's request. An amended complaint submitted in response to a pre-answer dismissal motion should be included in the record and assessed for sufficiency; here, it was insufficient, like the original pleading. The order granting the defendants' dismissal motions and denying the providers' cross motion for summary judgment was affirmed.
Appellate Term, First Department
May 30, 2014
2014 NY Slip Op 50841(U)
Insurer prevailed
An assignor's failure to attend requested IMEs permits retroactive denial of all claims, regardless of denial timeliness or initial grounds. The insurer established timely and proper mailing of the IME notices and the assignor's nonappearance. The provider did not specifically deny the nonappearance or raise a triable issue concerning the notices' mailing or reasonableness. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer could deny claims retroactively to the date of loss even though it initially denied them on different grounds. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's action.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50964(U)
Insurer prevailed
The provider failed to justify its late claim to MVAIC by merely stating that it had timely submitted the claim to an insurer. It was undisputed that the claim was not submitted to MVAIC within 45 days after the services, as required by 11 NYCRR 65-1.1. MVAIC's denial advised that written justification could excuse the delay under 11 NYCRR 65-3.3 (e). The provider's responsive letter reported submission to an insurer within 45 days, but did not explain why that insurer was initially billed or establish submission to MVAIC within a reasonable time after learning it was the proper recipient. The Appellate Term, Second Department, reversed the order and granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50952(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge. The insurer moved for summary judgment dismissing the assigned no-fault claims, asserting timely and proper denials based on the provider's failure to attend duly scheduled EUOs. Its submissions lacked proof from anyone with personal knowledge of the nonappearances. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50953(U)
Provider prevailed
The insurer's cross motion for summary judgment based on lack of medical necessity was denied on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, because its review of the record disclosed a triable issue concerning the medical necessity of the services. It declined the provider's request to limit the issues for trial under CPLR 3212 (g).
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50965(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 and assignor knew the identity of the owner of the vehicle in which the assignor was a passenger when the accident occurred. The provider nevertheless failed to demonstrate exhaustion of remedies against that owner. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion and granted MVAIC's cross motion for summary judgment dismissing the complaint. Under CPLR 5501 (c), the appeal from the order was deemed taken from the subsequently entered judgment.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50961(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, and 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 had been driving when the accident occurred. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, found that the provider had not demonstrated exhaustion of remedies against the owner. It reversed the order, denied the provider's motion and granted MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50950(U)
Insurer prevailed
The insurer's affidavits and documents established timely mailing of its denial, and the provider waived its objection under CPLR 2309 (c). The provider appealed an order granting the insurer summary judgment dismissing its assigned no-fault complaint; after judgment was entered, the appeal was deemed taken from that judgment under CPLR 5501 (c). The provider's sole appellate contention challenged the proof of timely mailing, which the Appellate Term, Second Department, found sufficient, also citing CPLR 4518. Its argument that one affidavit failed to comply with CPLR 2309 (c) had not been raised below and was waived. The judgment dismissing the complaint was affirmed.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50954(U)
Provider prevailed
An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely. The insurer appealed the denial of its cross motion for summary judgment dismissing the provider's assigned no-fault claims. Civil Court had identified mailing of the denial as the sole trial issue under CPLR 3212 (g). The record presented a factual question whether the insurer timely denied the claims after the assignor failed to appear for duly scheduled IMEs. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the Appellate Term, Second Department, rejected the insurer's contention that the defense escaped preclusion and affirmed the order, insofar as appealed from.
Appellate Term, Second Department
May 29, 2014
2014 NY Slip Op 50960(U)
Insurer prevailed
The insurer's litigation examiner affidavit established timely mailing of the denials based on the assignor's IME nonappearance. Civil Court denied the insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims and identified proper mailing of the denials as the sole issue for trial. The affidavit described the insurer's standard mailing practices and procedures and established timely mailing. The provider did not challenge Civil Court's implicit 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
May 29, 2014
2014 NY Slip Op 50963(U)
Split result
The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth. Affidavits established timely IME notices, the assignor's nonappearance, and timely denials for the first through thirteenth causes of action. The fourteenth claim was denied more than two months after the second missed IME and more than three months after receipt. The insurer's letters were insufficient verification requests under 11 NYCRR 65-3.5 (b), so they did not toll the period under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the judgment, granted the insurer summary judgment on the first 13 causes, and remitted for judgment dismissing them and awarding the provider recovery on the fourteenth with interest and attorney fees under Insurance Law § 5106.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 24145
Provider prevailed
The provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests. The insurer sought summary judgment dismissing the action as premature because the provider had not responded to verification requests. The Appellate Term, Second Department, affirmed denial of the motion. Proof of timely initial and follow-up mailings under 11 NYCRR 65-3.5 (b) and 65-3.6 (b) created a receipt presumption, but the owner's description of receipt-recording procedures and absence of records rebutted it. For tolling under 11 NYCRR 65-3.8 (a) (1), mailing, rather than receipt, was the operative question. Counsel had no duty to forward carbon copies purporting to duplicate requests sent to the provider. The order did not limit trial issues under CPLR 3212 (g).
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50867(U)
Insurer prevailed
A provider seeking to vacate a default must support a law office failure excuse with a detailed and credible explanation. The provider sought to vacate the portion of an order granting the insurer summary judgment on default and dismissing certain no-fault claims. Counsel alleged that opposition had been served but that it was unknown why the attorney appearing on the motion lacked the written opposition. That statement did not adequately detail and substantiate the alleged failure. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying vacatur, leaving the insurer's dismissal of those claims intact.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50868(U)
Insurer prevailed
The provider's medical affidavit failed to rebut the insurer's peer review showing that the disputed supply lacked medical necessity. The insurer's affirmed report supplied a factual basis and medical rationale for its conclusion. The provider's doctor's affidavit did not meaningfully address the report's conclusions. The provider also 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, granted the insurer's cross motion for summary judgment dismissing the complaint, and vacated as academic the CPLR 3212 (g) findings in the provider's favor.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50869(U)
Insurer prevailed
The insurer's unrebutted peer review reports established that the disputed services were not medically necessary. In this action for assigned no-fault benefits, the insurer established timely denial of the claims and submitted two affirmed peer review reports. Each supplied a factual basis and medical rationale for finding the services unnecessary, and the provider did not rebut that showing. 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
May 22, 2014
2014 NY Slip Op 50870(U)
Split result
An insurer's SIU file is discoverable unless the insurer establishes that it was prepared solely for litigation. In this assigned no-fault action, the insurer failed to show that it had decided to deny the claims before beginning its investigation. Prior stipulations in unrelated actions acknowledging the provider's licensing compliance did not bar discovery under Mallela because the issue had not been actually litigated. The insurer established that its licensing-related demands and requested depositions were material and necessary under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel production of the SIU file and affirmed the relief compelling the provider's discovery responses and depositions.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50871(U)
Insurer prevailed
The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's IME findings of lack of medical necessity. The insurer supported its cross motion for summary judgment with two sworn IME reports, each providing a factual basis and medical rationale for finding the services unnecessary. The provider's opposing affidavit did not sufficiently rebut their conclusions, and the provider did not challenge Civil Court's implicit finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the provider's CPLR 3212 (g) findings as academic, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50872(U)
Provider prevailed
The provider's doctor's affirmation raised a triable issue concerning the medical necessity of the supplies. The insurer sought summary judgment dismissing the assigned no-fault claim and submitted an affirmed physician's peer review and a chiropractor's affidavit, both supplying factual bases and medical rationales for finding the supplies unnecessary. The provider's opposing medical affirmation was sufficient to create a factual issue. The insurer also failed to articulate a sufficient basis to strike Civil Court's implicit findings for the provider under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving those findings intact and denying the insurer's cross motion, with medical necessity remaining for trial.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50873(U)
Insurer prevailed
The insurer established that the policy's $200 deductible applied to the provider's claims and that its denials were timely mailed. Affidavits proved the deductible under 11 NYCRR 65-1.6 and denial of the disputed amounts on that basis under Insurance Law § 5102 (b) (3). The provider waived its CPLR 2309 (c) objection by first raising it on appeal. In any event, the deductible affidavit was notarized in New York, and the out-of-state mailing affidavit included a proper certificate of conformity. The Appellate Term, Second Department, reversed the order granting the provider summary judgment, denied that motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50874(U)
Provider prevailed
The provider established the insurer's failure to meet a stipulated discovery deadline and obtained preclusion on its unopposed motion. The parties stipulated that the insurer would answer the provider's discovery demands within 30 days or be precluded from offering requested items that were not supplied. After the provider moved to enforce that stipulation, the parties set a deadline for opposition, but the insurer submitted none. Civil Court denied preclusion because responses had later been served. The Appellate Term, Second Department, reversed and granted the provider's motion because the responses were untimely under the stipulation and the insurer had never submitted written opposition.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50875(U)
Split result
The insurer proved its fee-schedule reductions, but the treating doctor's findings raised a factual issue on the remaining claims' necessity. The insurer established that only the amount already paid was due on one claim and that another violated Physical Medicine Ground Rule 11. The provider raised no factual issue concerning those calculations. For the remaining claims, the insurer's IME doctor established lack of necessity, but the treating doctor examined the assignor six days later and reported contrary findings. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal of the $305.36 claim and the $583.56 unpaid portion of the $1,291.96 claim, and otherwise affirmed denial of the insurer's cross motion.
Appellate Term, Second Department
May 22, 2014
2014 NY Slip Op 50880(U)
Insurer prevailed
The insurer's peer reviews were unrebutted because appellate review was limited to the papers Civil Court considered. Three affirmed reports supplied factual bases and medical rationales for finding the supplies unnecessary. Although the appellate briefs suggested that the provider served an opposing affidavit, the order recited consideration only of the provider's motion and insurer's cross motion. The provider's motion contained no medical evidence raising a factual 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, vacated the provider's CPLR 3212 (g) findings as academic, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 7, 2014
2014 NY Slip Op 50806(U)
The subrogating insurer established the bicyclist's liability for striking a legally parked vehicle through admissions and an affidavit. The insurer sought recovery of payments for vehicle damage. The bicyclist's verified pleading and signed no-fault application admitted the collision, and the insured's affidavit described the vehicle's parking and subsequent discovery of damage. The bicyclist offered no competent evidence of a nonnegligent explanation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment on liability. The appeal was limited to liability; the District Court had directed a damages trial under CPLR 3212 (c) and dismissed the bicyclist's no-fault counterclaim under Insurance Law § 5102 (b).
Trial court, Second Department
May 16, 2014
2014 NY Slip Op 50791(U)
Insurer prevailed
The provider could not execute its default money judgment because payment lacked supporting proof and the underlying order was improperly served. In an arbitration-vacatur proceeding, the Civil Court, Kings County, granted MVAIC's motion to the extent of barring execution and vacating the clerk's judgment, while leaving the original decision and order intact. The attorney's information-and-belief petition supplied no proof for monetary relief distinct from vacatur. Service on MVAIC rather than its known counsel failed to satisfy CPLR 2103 (b), leaving the order ineffective. The provider could serve the order with notice of entry and then enter judgment. Because of its eight-year delay, interest would begin upon filing that judgment, under Peerless Ins. Co. v Casey and 11 NYCRR 65-3.9 (d).
