Appellate Term, Second Department
Jun 13, 2014
2014 NY Slip Op 24161
Insurer prevailed
An order granting summary judgment binds judges of coordinate jurisdiction without service of notice of entry. Civil Court granted the insurer summary judgment dismissing the complaint, but another judge later conducted a nonjury trial and awarded the provider benefits, treating the earlier order as nonbinding because it had not been served with notice of entry. Summary judgment finally determines the merits, triggering res judicata and law of the case; the service requirement for conditional orders did not apply. Under CPLR 5520 (c), the Appellate Term, Second Department, deemed the premature notice of appeal taken from the judgment, reversed it, and remitted for judgment dismissing the complaint for the insurer. The provider raised no challenge to the summary judgment motion's merits.
Appellate Term, Second Department
Jun 13, 2014
2014 NY Slip Op 51002(U)
Provider prevailed
The insurer's dismissal motion was improperly converted to summary judgment without adequate notice under CPLR 3211 (c). The insurer sought dismissal under CPLR 3211 (a) (7), alleging that unanswered verification requests made the provider's action premature. No recognized exception to the conversion notice requirement applied. Applying CPLR 3026 and Leon v Martinez, the Appellate Term, Second Department, found a cognizable claim in allegations of an applicable no-fault policy, accident-related treatment, timely bills, no timely denial or verification request, and an unpaid balance. Those allegations adequately identified the transactions to be proved. The court reversed the judgment dismissing the complaint, vacated the underlying order and denied the insurer's CPLR 3211 (a) (7) motion.
Appellate Term, Second Department
Jun 13, 2014
2014 NY Slip Op 50969(U)
Insurer prevailed
The provider failed to establish either an untimely denial or a timely denial that was legally insufficient. Its billing agent's affidavit established mailing of the claim forms and the insurer's failure to pay within 30 days, but did not address whether the claims were timely denied or whether any timely denials were conclusory, vague, or without merit as a matter of law. Under Insurance Law § 5106 (a) and Viviane Etienne Med. Care, proof of mailing and nonpayment alone did not satisfy the provider's initial summary judgment burden. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion for summary judgment.
Appellate Term, First Department
Jun 9, 2014
2014 NY Slip Op 50895(U)
Insurer prevailed
The insurer proved timely mailing of IME and EUO notices and the assignor's repeated nonappearances. The examining physicians' sworn affidavits established personal knowledge of the missed IMEs and their ordinary-course reports to the insurer's third-party biller. The EUO notices used the address on the provider's claim form, and the provider offered no persuasive explanation for their return as unclaimed. The provider did not specifically deny nonappearance or raise a factual issue concerning mailing or the reasonableness of the notices. The Appellate Term, First Department, reversed the order, denied the provider's cross motion, and granted the insurer's motion for summary judgment dismissing the complaint.
Trial court, Second Department
Jun 24, 2014
2014 NY Slip Op 24160
Provider prevailed
The provider established that Calmare scrambler therapy was medically necessary for the assignor's pain management. At a bench trial, the parties stipulated to the provider's prima facie case and timely denials, leaving medical necessity as the sole issue. The Civil Court, Richmond County, awarded judgment to the provider with statutory interest and attorney fees. Although the insurer's expert supplied a factual basis and medical rationale, the court found the testimony insufficient to establish lack of necessity and viewed the objection as principally concerning cost effectiveness. Applying Frye, the court found the expert evidence reliable. It relied on FDA marketing clearance, the device-effectiveness provisions of 21 USC § 360c (a) (3) (A) and (B), and evidence that the assignor's pain decreased after treatment.
