Appellate Division, Second Department
Aug 20, 2014
2014 NY Slip Op 05887
Insurer prevailed
The claimant's SUM coverage was not triggered because New York law governed and the policies had equal bodily injury liability limits. A New York resident injured while bicycling in Florida sought SUM arbitration after the tortfeasor's insurer tendered its liability limit. The Appellate Division, Second Department, affirmed a permanent stay under CPLR 7503. Applying contract conflict-of-laws principles, the court relied on the policy's New York conformity, procurement in New York by a resident from an insurer doing business there, and the New York arbitration demand. Under Insurance Law § 3420 (f) (2) (A), equal limits precluded underinsured status. Payment of first-party benefits did not establish agreement to apply Florida law because 11 NYCRR 65-3.12 (a) (3) and (b) required initial payment.
Appellate Division, Second Department
Aug 13, 2014
2014 NY Slip Op 05779
Provider prevailed
The insurer's denial of a defective UB-04 submission did not excuse its failure to respond to the hospital's later NF-5 claim. The hospital initially submitted a UB-04 and supporting records; the insurer requested verification and then denied payment. Following Sound Shore, the Appellate Division, Second Department, held that the defective submission did not start the 30-day period and the denial had no effect. The period began with the later NF-5 containing the needed information. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5 (g) and 65-3.8 (a) (1) and (c), failure to pay or deny within 30 days precluded defenses. The court reversed, granted the hospital summary judgment, and denied the insurer's cross motion; it did not reach the hospital's remaining contention.
Appellate Term, First Department
Aug 22, 2014
2014 NY Slip Op 51290(U)
Provider prevailed
The insurer failed to show entitlement to depositions because it did not establish timely denials preserving the asserted defenses. The Civil Court, New York County, conditionally granted dismissal unless the provider complied with a deposition notice concerning excessive treatment and fee schedule defenses. Following Triangle R. Inc. v Progressive Ins. Co., the Appellate Term, First Department, found no affirmative showing that the insurer had preserved those defenses by timely denying the no-fault claim. It reversed the conditional dismissal order and denied the insurer's motion. The court expressly declined to address the provider's alternative argument that the noticed depositions were otherwise unwarranted.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51310(U)
Insurer prevailed
The provider's unanswered EUO requests foreclosed its reasonableness objections and made related discovery unnecessary to oppose summary judgment. The insurer's affidavits established timely mailing of EUO notices and denials through standard office practices. Its attorney's affirmation, based on being present to conduct the EUOs on the scheduled dates, sufficiently proved nonappearance. Because the provider claimed no response to the requests, the Appellate Term, Second Department, declined to hear its objections concerning their justification. Discovery about reasonableness was therefore unnecessary under CPLR 3212 (f). The court affirmed the order granting the insurer summary judgment dismissing the assigned no-fault action.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51324(U)
Insurer prevailed
The provider's action was barred by a declaratory judgment relieving the insurer of liability for claims arising from the accident. The Supreme Court, New York County, granted that declaration based on the assignor's EUO nonappearance. A provider judgment would impair rights established by the declaration, making res judicata applicable despite the absence of service with notice of entry. The provider also failed to establish overdue payment or a timely denial deficient as a matter of law under Insurance Law § 5106 (a). Consideration of the insurer's late supplemental opposition was proper given the justified delay and lack of demonstrated prejudice. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal with prejudice upon searching the record.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51315(U)
Insurer prevailed
The insurer proved timely EUO notices and denial and the provider's nonappearance, rendering the request to disqualify counsel moot. The insurer supported its summary judgment motion with a law firm partner's affirmation attesting to nonappearance. The provider sought disqualification under rule 3.7 of the Rules of Professional Conduct, 22 NYCRR 1200.0, because a firm member was allegedly a necessary witness. The Appellate Term, Second Department, affirmed dismissal, finding sufficient mailing and nonappearance proof and applying the EUO condition precedent in 11 NYCRR 65-1.1. With summary judgment granted, no trial would occur, so the attorney-witness request was moot; the provider also failed to establish grounds for disqualification.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51322(U)
Split result
The assignor's alleged use of a fraudulent address raised a factual issue defeating the provider's summary judgment motion. The insurer denied the claim based on alleged fraudulent procurement of the policy through a residence misrepresentation. Its submissions established timely mailing of the denial and raised a triable issue concerning the address supplied when the policy was obtained, but did not establish the insurer's entitlement to dismissal as a matter of law. The provider's prima facie case was not challenged on appeal, and the appellate court did not review it. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed, leaving the insurer's cross motion denied.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51323(U)
Provider prevailed
The insurer's inconsistent vehicle identification numbers left a triable issue concerning coverage under the applicable policy. In seeking summary judgment dismissing the provider's assigned no-fault claims, the insurer submitted an investigator's statement that the vehicle identified in the police report was not covered. But the vehicle identification number varied throughout the supporting papers, creating a factual question as to whether the vehicle was covered. Following Winegrad v New York Univ. Med. Ctr., the Appellate Term, Second Department, affirmed denial of the insurer's motion regardless of the sufficiency of the provider's opposition. The insurer's remaining contention was unpreserved for appellate review.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51305(U)
Insurer prevailed
The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested information. The insurer's claims examiner established timely mailing of initial and follow-up requests, and the provider did not oppose the cross motion for summary judgment. Nothing in the record required additional proof that the annexed copies of the verification letters had not been altered or tampered with. Because the requested verification remained outstanding, the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the provider's favorable CPLR 3212 (g) findings, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 20, 2014
2014 NY Slip Op 51321(U)
Insurer prevailed
A default declaratory judgment barred the provider's benefits action under res judicata because recovery would impair the insurer's established rights. While the no-fault action was pending, the Supreme Court, New York County, declared that the assignor was not an eligible injured person and that the insurer owed no benefits on the provider's claims arising from the accident under the policy. The insurer then cross-moved to dismiss under CPLR 3211 (a) (5). The Appellate Term, Second Department, affirmed the order implicitly denying the provider's summary judgment motion and granting the insurer's cross motion. The provider's remaining arguments lacked merit or were unpreserved.
Appellate Term, Second Department
Aug 12, 2014
2014 NY Slip Op 51301(U)
Insurer prevailed
The provider's doctor's affidavit failed to rebut two IME reports establishing a lack of medical necessity for further treatment. The insurer supported its summary judgment cross motion with a chiropractor's sworn statement and a doctor's affirmed report, both based on IMEs conducted before the disputed services. Each supplied a factual basis and medical rationale. The opposing affidavit did not meaningfully address the chiropractor's conclusions and inadequately rebutted the doctor's conclusions. The provider did not challenge the 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 favorable CPLR 3212 (g) findings and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 11, 2014
2014 NY Slip Op 24227
Insurer prevailed
Pennsylvania policy rescission defeated the provider's no-fault claim because the assignor was complicit in the insured's fraud. The policy was issued in Pennsylvania for a purportedly Pennsylvania resident and garaged vehicle; its only New York connection was the assignor's injury while riding in the vehicle there. Applying New York's conflict-of-law rules, the Appellate Term, Second Department, found Pennsylvania law controlling. Under Erie Ins. Exch. v Lake, rescission cannot defeat an innocent third party's rights. The assignor's testimony established participation in obtaining cheaper Pennsylvania insurance despite the insured's nonresidency. The court 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, First Department
Aug 11, 2014
2014 NY Slip Op 51209(U)
Insurer prevailed
The provider failed to show that its acupuncture services fell outside the physicians' workers' compensation fee schedule. The insurer's affidavits established timely and proper denial of reimbursement exceeding that schedule, and the provider raised no factual issue concerning either mailing or fee calculation. Counsel's affirmation did not address the nature of the services or show that they were not similar to acupuncture services generally performed by physicians under 11 NYCRR 68.5 (b). The claim sought the difference between the charges and payments already made under the fee schedule. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51261(U)
Provider prevailed
MVAIC's residency defense lacked merit because the notarized notice of intention to make claim and police report stated the assignor's New York residence. MVAIC moved under CPLR 5015 to vacate an order granting the provider summary judgment on default. It argued that the assignor was not a qualified person under Insurance Law § 5202 (b) because residency had not been demonstrated. The record established receipt of both documents reflecting a New York residence, and MVAIC's conclusory demand for further documentary proof was insufficient. The Appellate Term, Second Department, affirmed denial of vacatur and expressly found it unnecessary to consider whether MVAIC had demonstrated a reasonable excuse for its default.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51266(U)
Provider prevailed
The insurer's summary judgment cross motion was denied because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving intact the provider's favorable CPLR 3212 (g) findings. The court found no sufficient basis to strike those findings and left medical necessity as the sole trial issue.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51255(U)
Insurer prevailed
The insurer's unrebutted peer review established that the supplies lacked medical necessity and warranted summary judgment. The provider moved for summary judgment, and the insurer cross-moved to dismiss based on lack of medical necessity and the workers' compensation fee schedule. Civil Court denied both motions, made findings for the provider under CPLR 3212 (g), and left medical necessity for trial. The affirmed peer review supplied a factual basis and medical rationale for the lack of necessity, which the provider did not rebut. The provider also 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 findings, and granted the insurer's cross motion.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51256(U)
Insurer prevailed
The insurer proved timely mailing of the IME notices and denial and the assignor's nonappearance, warranting dismissal of the provider's claim. An employee of the insurer's IME scheduling company established timely mailing through the company's standard mailing practices and procedures. The chiropractor who was to perform the chiropractic IMEs established that the assignor failed to appear, and the insurer's claims examiner established timely mailing of the denial based on those nonappearances. Relying on Stephen Fogel Psychological and 11 NYCRR 65-1.1, 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
Aug 8, 2014
2014 NY Slip Op 51257(U)
Insurer prevailed
The insurer established timely mailing of the IME notices and denials and the assignor's failure to appear for the scheduled IMEs. The providers sought assigned no-fault benefits, and the insurer moved for summary judgment on the claims denied for IME nonappearance. An employee of the scheduling company described its standard mailing practices, and the healthcare professionals who were to conduct the examinations established the nonappearances. The insurer's affidavits also established timely denial of the affected claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer summary judgment dismissing those claims, and denied the providers' cross motion as to that portion of the complaint.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51258(U)
Insurer prevailed
The provider's appeal from the grant of the insurer's unopposed vacatur cross motion was dismissed because no appeal lies from a party's default. The provider had obtained summary judgment on default and then moved for entry of a default judgment. The insurer cross-moved to vacate the summary judgment order and, implicitly, to deny the provider's summary judgment motion. Under CPLR 5511, the Appellate Term, Second Department, dismissed the appeal from the grant of that unopposed cross motion. It affirmed the denial of the provider's motion for entry of judgment because the underlying summary judgment order had been vacated.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51259(U)
Split result
The provider failed to establish its prima facie case, but the insurer also failed to obtain dismissal on its three defenses. The provider showed neither nonpayment or nondenial within 30 days nor a timely denial deficient as a matter of law under Insurance Law § 5106 (a). Its treating doctor's affidavit nevertheless raised a triable issue on claims denied for lack of medical necessity. The insurer did not establish entitlement to dismissal of claims denied under the workers' compensation fee schedule or as submitted more than 45 days after services. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the provider's summary judgment motion denied.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51262(U)
Insurer prevailed
The insurer's unrebutted peer reviews established that the supplies lacked medical necessity, supporting summary judgment dismissal. The insurer appealed denial of its cross motion in the provider's assigned no-fault action. Its affidavit established timely mailing of the denial forms, and two affirmed peer review reports each supplied a factual basis and medical rationale for the determination that the supplies were unnecessary. The provider did not rebut that prima facie showing. The Appellate Term, Second Department, reversed the order and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51263(U)
Provider prevailed
The insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's implicit CPLR 3212 (g) findings. It found no sufficient basis to strike those findings and a triable issue concerning the supplies' medical necessity, leaving that issue for trial.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51267(U)
Insurer prevailed
The provider's unopposed summary judgment motion was denied for failure to prove overdue payment or a legally deficient denial. The Appellate Term, Second Department, affirmed because the moving papers showed neither a failure to pay or deny within 30 days nor a timely denial that was conclusory, vague, or legally meritless under Insurance Law § 5106 (a).
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51268(U)
Insurer prevailed
The provider's doctor's affidavit failed to rebut three peer reviews establishing that the supplies lacked medical necessity. The insurer supported its summary judgment cross motion with affirmed reports setting out a factual basis and medical rationale for the reviewers' conclusions. The opposing affidavit did not meaningfully address or sufficiently rebut those conclusions. The provider also 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 implicit favorable findings under CPLR 3212 (g), and granted the insurer's cross motion dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51269(U)
Provider prevailed
The insurer's summary judgment cross motion challenging the medical necessity of supplies remained denied on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's implicit CPLR 3212 (g) findings. It found no sufficient basis to strike those findings and a triable issue concerning the supplies' medical necessity, leaving that issue for trial.
Appellate Term, Second Department
Aug 8, 2014
2014 NY Slip Op 51270(U)
Provider prevailed
The insurer's summary judgment cross motion based on lack of medical necessity remained denied on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving the provider's favorable CPLR 3212 (g) findings. It found no sufficient basis to strike those findings and a triable issue regarding medical necessity, leaving that issue for trial.
Trial court, Second Department
Aug 16, 2014
2014 NY Slip Op 24232
Provider prevailed
A claimant may provide oral or telephonic notice of an accident under the no-fault regulations. At trial, the parties stipulated that neither the provider nor its assignor gave written notice within 30 days, and only oral or telephonic notice was provided. The Civil Court, Kings County, read 11 NYCRR 65-1.1 (d), requiring written notice, together with 11 NYCRR 65-3.4 (a), permitting telephone notice of claim, and 11 NYCRR 65-3.2 (d), encouraging telephone processing. Construing the regulations as a whole, it concluded that telephone notice applies to both notice of accident and proof of claim. The claimant properly notified the insurer, and judgment was directed for the provider.
Trial court, First Department
Aug 14, 2014
2014 NY Slip Op 24277
Insurer prevailed
The insurer's attorney affirmation established personal knowledge of the provider's failure to appear for two scheduled EUOs. The attorney was present on both dates and stated unequivocally that, had the provider appeared, the attorney would have conducted the EUO or assigned another attorney to do so. The Civil Court, New York County, granted the insurer summary judgment under CPLR 3212. The affirmation needed no description of the firm's check-in procedure, and references to other personnel in the notices did not undermine it. Because the provider never responded to the EUO requests, it could not challenge their reasonableness in opposition; related discovery was unnecessary under CPLR 3212 (f).
Trial court, First Department
Aug 13, 2014
2014 NY Slip Op 51421(U)
Provider prevailed
The insurer's attorney's affirmation did not establish personal knowledge of the assignor's failure to appear for two EUOs. Although the insurer proved timely and proper mailing of the EUO letters and denials, the attorney stated only that the attorney was assigned to conduct the EUOs and that no one appeared. The affirmation did not state that the attorney was present on either scheduled date or explain the basis for knowing of the nonappearances. Applying CPLR 3212 (b) and Alrof, Inc. v Safeco Natl. Ins. Co., the Civil Court, New York County, denied the insurer's summary judgment motion. The insurer would have to prove the assignor's nonappearance at trial.
Trial court, Second Department
Aug 7, 2014
2014 NY Slip Op 51216(U)
Provider prevailed
A late no-fault denial precludes causation and medical necessity defenses to claims for both accident-related and allegedly unrelated treatment. The insurer denied the hospital's claim more than 30 days after receiving final verification, relying on a peer review that acknowledged some services were accident-related. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), payment or denial was due within 30 days. Following Mount Sinai Hospital v Triboro Coach Incorporated, the District Court, Nassau County, found that the coverage exception recognized in Central General Hospital v Chubb Group of Insurance Companies applies only where treatment was not accident-related at all. It granted the provider's summary judgment motion and denied the insurer's cross motion, holding both defenses precluded.
