Appellate Division, First Department
Jul 17, 2014
2014 NY Slip Op 05366
Insurer prevailed
The assignor's departure from an EUO before questions about the accident and injuries breached a condition precedent to coverage. The Appellate Division, First Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment declaring its disclaimer proper and permanently staying related no-fault arbitrations or court hearings. The certified EUO transcript was admissible as a party admission, and an investigator's affidavit corroborated the aborted examination. The providers did not dispute what occurred. The assignor, represented by counsel, acknowledged the consequences of refusing to continue and did not seek another EUO. Because assignees acquire no greater rights than their assignor, the insurer could assert the coverage-condition defense against the providers.
Appellate Division, Second Department
Jul 16, 2014
2014 NY Slip Op 05325
Insurer prevailed
The insurer raised a triable issue whether its intoxication-based denial was timely and proper after receipt of additional verification. The hospital established prima facie entitlement to summary judgment by showing that the claim was neither paid nor denied within 30 days of receipt of the prescribed forms. In opposition, the insurer relied on a denial issued within 30 days after receiving requested verification concerning the claim. Although some evidence was inadmissible, the insurer supplied an acceptable excuse under Zuckerman for failing to tender it in admissible form. The Appellate Division, Second Department, affirmed denial of the hospital's summary judgment motion.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51240(U)
Insurer prevailed
The insurer's examiner affidavit established that it had not issued a policy covering the accident. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss on the ground that it was not the carrier covering the accident. The affidavit sufficiently established that defense. Contrary to the provider's argument, the insurer did not have to describe in detail the steps taken to search its records to demonstrate that no coverage was in effect. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51244(U)
Insurer prevailed
⚠ Not followed by Country-Wide Ins. Co. v Delacruz (2021 NY Slip Op 21019)
The insurer's EUO requests were late, but its denials remained timely after the corresponding reductions in its time to pay or deny. Requests mailed 21 and 16 business days after claim receipt exceeded the 15-business-day limit in 11 NYCRR 65-3.5 (b), reducing the denial periods to 24 and 29 calendar days under 11 NYCRR 65-3.8 (l). Follow-up requests were timely, and denials mailed 11 days after the final EUO nonappearance satisfied both periods; the third claim was also timely denied. Affidavits established mailing and nonappearance. Because the provider never responded to the EUO requests, their reasonableness was not considered. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51235(U)
Insurer prevailed
The insurer established that the provider had sued the wrong carrier because another insurer had issued the policy covering the accident. In the provider's action for assigned no-fault benefits, the defendant insurer sought summary judgment dismissing the complaint on the ground that it had not insured the vehicle involved. Affidavits from its litigation manager and a manager of the other insurer established lack of coverage; the latter attested that the other insurer had issued the applicable policy. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the defendant insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51231(U)
Medical necessity experts need not establish the truth of records not offered to prove the assignors' injuries or treatment. At a nonjury trial limited by stipulation to medical necessity, the judicial hearing officer excluded the insurer's expert opinions because the medical records they reviewed were hearsay and expressly declined to follow Urban Radiology, P.C. v Tri-State Consumer Ins. Co. The Appellate Term, Second Department, held that the witnesses should have been permitted to testify about the supplies' medical necessity and that the Civil Court was bound by its decisions. It reversed the provider's judgment and remitted for a new trial limited to medical necessity, before a judge or a different judicial hearing officer.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51232(U)
Insurer prevailed
The provider's affidavit failed to rebut the presumption that the assignor received the duly mailed IME notices. Civil Court denied the insurer's summary judgment motion because it found a factual issue concerning receipt. The scheduling company's employee established timely mailing through standard office practices, and the healthcare professional who was to conduct the IMEs established the assignor's nonappearances. The claims examiner also sufficiently described the insurer's practices for mailing denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, appearance at a duly scheduled IME is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 28, 2014
2014 NY Slip Op 51233(U)
Provider prevailed
The insurer failed to establish that its IME nonappearance and services-not-rendered defenses were free from preclusion. Seeking summary judgment dismissing the provider's assigned no-fault claims, the insurer asserted that the assignor missed IMEs and swore that the claimed treatment had never been received. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the Appellate Term, Second Department, found neither ground warranted summary judgment; review of the record also did not support dismissal for lack of medical necessity. It affirmed the order, insofar as appealed from, denying the insurer's cross motion. The court noted that 11 NYCRR 65-3.8 (g) removes preclusion for the services-not-provided defense for treatment rendered after April 1, 2013.
Appellate Term, First Department
Jul 24, 2014
2014 NY Slip Op 51127(U)
Insurer prevailed
The insurer's claims affidavit and fee-schedule excerpts established the proper reimbursement calculation for the acupuncture services. The provider sought the difference between its charges and payments made under the applicable workers' compensation fee schedule. The insurer established timely denials based on charges exceeding the permitted amount. Its claims representative's affidavit, together with fee-schedule excerpts subject to judicial notice, sufficiently proved the calculation, and the provider raised no triable issue concerning either mailing of the denials or the fees. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint in its entirety.
Appellate Term, First Department
Jul 16, 2014
2014 NY Slip Op 51082(U)
Insurer prevailed
The insurer established timely mailing of IME notices and the assignor's nonappearance through affidavits describing office procedures. Notices were timely and properly mailed to the assignor and counsel. The scheduled examining physician and an employee of the insurer's third-party biller supplied sworn affidavits based on personal knowledge of office procedures when an assignor failed to appear. The provider did not specifically deny nonappearance or raise a triable issue concerning nonappearance, mailing, or the reasonableness of the notices. The Appellate Term, First Department, reversed the amended order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint in its entirety.
Appellate Term, Second Department
Jul 7, 2014
2014 NY Slip Op 51142(U)
Insurer prevailed
An insurer's EUO scheduling notice need not specify why the EUO is required. The provider appealed summary judgment dismissing its assigned no-fault claims for failure to appear at duly scheduled EUOs, arguing that the insurer lacked justification and demanded improper documents. Relying on the Insurance Department's interpretation of the no-fault regulations, the Appellate Term, Second Department, rejected the argument that the insurer had to set forth objective standards in its notices. Appearance was a condition precedent to policy liability under Stephen Fogel Psychological. Because the provider neither alleged nor established any response by it or its assignor, the remaining objections were not heard. Counsel's affirmation raised no triable issue, and the order granting the insurer summary judgment was affirmed.
Appellate Term, Second Department
Jul 7, 2014
2014 NY Slip Op 51143(U)
Split result
An insurer's delay letters requesting no verification do not toll the 30-day period to pay or deny a no-fault claim. The insurer failed to establish timely denial of the claim underlying the second cause of action, so summary judgment dismissing that claim and the third cause for related attorney fees remained denied. For the fourth cause, timely EUO notices tolled the period, and nonappearance and timely denial were established. EUO notices need not state reasons for the request, The provider's objections were not heard because no response was alleged. The Appellate Term, Second Department, modified the order to dismiss the fourth cause and fifth cause for related attorney fees, plus the first cause because it alleged no separate cause of action, and otherwise affirmed.
Appellate Term, Second Department
Jul 1, 2014
2014 NY Slip Op 51026(U)
Provider prevailed
The insurer failed to prove its limitations defense because its conclusory denial of receipt did not rebut the affidavit of service. The insurer argued that the six-year period under CPLR 213 (2) expired before commencement, relying on a claims administrator's assertion that no summons and complaint arrived before 2008. The provider produced proof of personal service at the insurer's New York City office in 2003, when service commenced the action under former CCA 400 and 410. The administrator's employee did not work at that office, and the denial was insufficient. Answering and demanding discovery also waived dismissal under CPLR 3215 (c). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment.
Appellate Term, Second Department
Jul 1, 2014
2014 NY Slip Op 51028(U)
Insurer prevailed
The provider's refusal to comply with court-ordered discovery without a reasonable excuse warranted dismissal under CPLR 3126. The insurer sought depositions and documents concerning its defense that the provider was ineligible for no-fault reimbursement under Mallela because of licensing noncompliance. Civil Court conditionally ordered the provider to produce its owner and employee for depositions within 60 days. After the provider failed to produce them for duly scheduled depositions, the insurer moved to dismiss. Willful and contumacious conduct could be inferred from the provider's inadequate compliance despite the order and lack of a reasonable excuse. The Appellate Term, Second Department, affirmed dismissal with prejudice; another contention was unpreserved because it was first raised on appeal.
Trial court, Second Department
Jul 7, 2014
2014 NY Slip Op 24177
Provider prevailed
An insurer cannot continue to delay payment after receiving a completed but unsigned NF-2 without seeking further verification. The provider submitted signed claim and assignment forms, and the insurer requested a completed, signed no-fault application. After receiving an unsigned application, the insurer neither paid nor denied the claim nor sought further verification. On stipulated facts, the District Court, Nassau County, found for the provider. Under 11 NYCRR 65-3.5 (c) and 65-3.8 (a) (1), proper verification requests toll the payment period, but the insurer had to act upon the response. Even assuming its original request was timely, its failure to follow up under 11 NYCRR 65-3.6 (b) independently defeated its verification defense.
