Appellate Division, First Department
Dec 23, 2014
2014 NY Slip Op 08921
Insurer prevailed
⚠ Not followed by Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850)
Failure to attend requested EUOs breaches a no-fault coverage condition, regardless of denial timeliness or willfulness. The insurer established that each assignor missed two EUOs: the first nonappearances were undisputed, and admissible business-record evidence proved the second. Applying Unitrin to EUOs, the Appellate Division, First Department, modified the summary judgment order solely to declare that the appealing providers were not entitled to benefits and otherwise affirmed. The providers' challenges concerning correct-address mailing and waiver through failure to deny were unpreserved and unavailing; their verified answer alleged denials. The insurer did not have to prove willful nonappearance. The providers also failed to show that outstanding discovery made summary judgment premature.
Appellate Division, Second Department
Dec 10, 2014
2014 NY Slip Op 08613
Insurer prevailed
The hospital failed to establish entitlement to summary judgment because its own papers included a timely and sufficient denial. The hospital argued that the insurer's NF-10 was defective because it listed an incorrect bill amount and amount in dispute, while conceding issuance within 30 days of receipt of its NF-5. The Appellate Division, Second Department, reversed the judgment for the hospital, denied summary judgment on the first cause of action, and modified the underlying order accordingly. The denial was timely under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (c), and nonprejudicial mistakes in an otherwise proper denial are not necessarily fatal. The hospital's prima facie failure required denial regardless of the insurer's opposition.
Appellate Term, First Department
Dec 31, 2014
2014 NY Slip Op 51886(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity, and the provider's attorney affirmation raised no triable issue. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's claim for medical supplies. Affidavits from mailing-center and claims-administrator employees describing office mailing procedures, together with a mailing certificate, established timely and proper denial. The orthopedic peer review supplied a sufficient factual basis and medical rationale for nonnecessity. The provider offered no medical evidence or other competent proof in opposition. Its remaining contentions were unpreserved or without merit.
Appellate Term, First Department
Dec 31, 2014
2014 NY Slip Op 51888(U)
Split result
The insurer established lack of medical necessity for two supply claims but failed to establish timely denial of a third claim. The Appellate Term, First Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the two claims supported by timely denials and a sworn peer review with a sufficient factual basis and medical rationale. The provider's attorney affirmation, without medical evidence or other competent proof, raised no triable issue; objections to the reviewer's qualifications concerned weight rather than admissibility. Denial of summary judgment on the remaining supply claim was affirmed because the insurer's own submissions tended to show an untimely denial.
Appellate Term, First Department
Dec 30, 2014
2014 NY Slip Op 51853(U)
Insurer prevailed
The insurer proved the assignor's IME nonappearance through evidence of office practices and timely mailing of the notices. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment motion in its entirety. The insurer established proper, timely mailing of IME notices to the assignor and counsel. An examining physician's affirmation and an IME scheduler employee's sworn affidavit supplied competent evidence of nonappearance based on personal knowledge of office practices and policies when an assignor fails to attend. The provider did not specifically deny nonappearance or raise a triable issue concerning it, the mailing of the notices, or their reasonableness.
Appellate Term, Second Department
Dec 22, 2014
2014 NY Slip Op 51870(U)
Insurer prevailed
The insurer established timely and valid policy cancellation for nonpayment of premium, and the provider submitted no opposition. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. The provider failed to show that denials were untimely or legally insufficient. On the cross motion, the insurer's papers established compliance with Vehicle and Traffic Law § 313. The burden then shifted to the provider, as the party claiming coverage, to show noncompliance with statutory form and procedure requirements. Its failure to oppose left no triable issue concerning cancellation.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51861(U)
Split result
MVAIC's untimely payment supported interest and attorney's fees, but the amounts awarded were excessive. MVAIC's 30-day payment obligation under 11 NYCRR 65-3.8 did not await qualification of the injured claimant. Payment after commencement of the action was untimely, supporting accrued interest and fees. However, interest calculated at two percent monthly from July 6, 2010 through July 16, 2012 did not comport with LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. and East Acupuncture, P.C. v Allstate Ins. Co. Fees dependent on interest under 11 NYCRR 65-4.6 (e) were likewise excessive. The Appellate Term, Second Department, reversed the judgment and remitted for entry of a corrected judgment.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51857(U)
Split result
The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses. A sworn peer review supplied a factual basis and medical rationale that the provider's doctor failed to rebut meaningfully. Payment of five other claims remained disputed. The insurer failed to rebut proof that another claim was mailed within the 45-day period under 11 NYCRR 65-1.1, or establish improper or excessive fee-schedule billing. The provider failed to establish entitlement to judgment on the late-submission and fee-schedule claims. The Appellate Term, Second Department, modified the order to dismiss only the medical-necessity claim and deny dismissal of the fee-schedule balance, otherwise affirming denial of both parties' remaining summary judgment requests.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51863(U)
Provider prevailed
The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its nonappearance defense. The provider appealed an order dismissing its action for assigned first-party no-fault benefits. The insurer's affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly addressed and mailed. Without that showing, the insurer failed to demonstrate that the IMEs were properly scheduled or that the assignor failed to attend duly scheduled IMEs. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51856(U)
Split result
The insurer failed to establish timely denials for seven claims but proved timely mailing of EUO notices and denials for two others. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the provider's first through seventh causes of action and affirmed dismissal of the eighth and ninth. The first six claims were denied well beyond 30 days, and the insurer did not establish proper tolling under 11 NYCRR 65-3.5 (b). The insurer conceded that its denial of the seventh claim was untimely. For the eighth and ninth claims, its affidavits sufficiently established timely mailing of EUO scheduling letters and denial forms; the provider raised no other appellate issue concerning those claims.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51858(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearances through someone with personal knowledge. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits after Civil Court granted its summary judgment motion and denied the insurer's cross motion. The insurer relied on denials based on the provider's failure to attend duly scheduled EUOs, but submitted no proof of the nonappearances from a person with personal knowledge, as required under Alrof, Inc. v Safeco Natl. Ins. Co. The insurer raised no appellate issue concerning the provider's prima facie case, and the court expressly declined to review that determination.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51859(U)
Insurer prevailed
The insurer established outstanding verification for four claims and the assignor's IME nonappearances for the remaining claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The claims examiner's affidavit established timely mailing of initial and follow-up verification requests and nonreceipt of the requested verification. The provider did not show that it had supplied the verification, so those four claims were premature under 11 NYCRR 65-3.8 (a). For the remaining claims, affidavits established timely mailing of IME scheduling letters and denials and the assignor's nonappearances. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at an IME is a condition precedent to the insurer's liability.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51860(U)
Insurer prevailed
The insurer established IME nonappearances for two claims and outstanding verification that made a third claim premature. The Appellate Term, Second Department, reversed the provider's judgment, denied its cross motion on the first three causes of action, and granted the insurer summary judgment dismissing them. For the second and third causes of action, affidavits established timely mailing of verification requests, denials and IME scheduling letters, and the assignor's failure to appear, establishing noncompliance with a condition precedent to coverage. For the first cause of action, the insurer proved timely initial and follow-up verification requests and nonreceipt of all requested verification. Under 11 NYCRR 65-3.8 (a), the 30-day payment or denial period had not begun.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51862(U)
Split result
The insurer proved timely denial based on IME and EUO nonappearance for the first cause of action but not timely denial for the second. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the first cause of action and otherwise affirmed. For that claim, the insurer established timely mailing of scheduling letters and denials and the assignor's failure to attend duly scheduled IMEs and EUOs, breaching conditions precedent to coverage. Summary judgment dismissing the second cause of action remained denied because the insurer failed to establish a timely denial.
Appellate Term, Second Department
Dec 19, 2014
2014 NY Slip Op 51864(U)
Insurer prevailed
The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule for chiropractors. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and granting the insurer summary judgment on those claims. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the court rejected the provider's challenge to the fee-schedule reductions. The provider's award below for an initial evaluation was outside the appeal.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51792(U)
Insurer prevailed
The assignor's EUO nonappearance was not excused by apparent nondelivery of certified notices where first-class mailing was unrebutted. The insurer proved timely mailing of EUO scheduling and follow-up letters by both first-class and certified mail, timely mailing of denials, and nonappearance through certified EUO transcripts. The provider claimed no response to the requests and raised no triable issue. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the insurer established entitlement to judgment. Tracking information suggesting nondelivery of the certified copies did not establish insufficient first-class mailing. The Appellate Term, Second Department, reversed both orders, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51814(U)
Split result
The provider failed to overcome a timely denial, while the defendant failed to prove its EUO and IME nonappearance defenses. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion, and denied that motion, leaving the defendant's cross motion denied. The defendant proved timely mailing of the denial, and the provider did not show it was conclusory, vague or meritless as a matter of law under Insurance Law § 5106 (a). The defendant failed to establish proper mailing practices for IME notices and offered no proof from someone with personal knowledge of the assignor's EUO nonappearance. Neither defense supported summary judgment.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51812(U)
Insurer prevailed
The provider's challenges to the insurer's affidavit and delay letters did not establish that its claims were untimely denied. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion. The Pennsylvania affidavit included a proper certificate of conformity under CPLR 2309 (c); absence of such a certificate would not have been fatal in any event. Although the challenged delay letters were inadequate EUO requests and did not toll the payment or denial period, separate EUO scheduling letters appeared to contain the allegedly missing information. The provider did not challenge those letters' sufficiency and failed to demonstrate error in Civil Court's finding that the claims were timely denied.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51805(U)
Provider prevailed
MVAIC failed to establish the assignor's nonappearance at the first scheduled EUO, entitling the provider to summary judgment. Civil Court had dismissed the assigned no-fault claims on MVAIC's EUO defense. The provider's employee affidavit established its prima facie entitlement to judgment. Although MVAIC submitted a sworn stenographic transcript showing nonappearance at the second EUO, it offered no admissible proof of nonappearance at the first. The Appellate Term, Second Department, reversed, granted the provider's motion, denied MVAIC's cross motion, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 and its implementing regulations. It reached no other issue.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 24402
MVAIC's lack-of-coverage defense based on an assignor's residency is not precluded by an untimely denial. The provider obtained judgment on an agreed statement of facts after the Civil Court treated MVAIC's failure to timely deny or properly seek verification as precluding its defense. Under Insurance Law §§ 5221 (b) (2) and 5202 (b), an injured person must be a qualified person, including a New York resident, to obtain coverage. The stipulation did not establish whether the notice of intention to make claim was sworn or reflected residency. The Appellate Term, Second Department, reversed the judgment and remitted for a more definite stipulation or trial on that issue; it dismissed the appeal from the decision under CCA 1702.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51798(U)
Insurer prevailed
The provider's objections to EUO requests were not heard because it did not claim to have responded to the requests. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's summary judgment motion based on the provider's EUO nonappearances. The provider argued that the scheduling letters inadequately explained why EUOs were requested. Its failure to claim any response barred those objections. Alternatively, the letters adequately advised that the EUOs would concern, among other subjects, eligibility for reimbursement of assigned no-fault benefits. The provider's remaining contentions were raised for the first time on appeal and were not properly before the court.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51809(U)
Provider prevailed
MVAIC failed to establish proper mailing of the IME scheduling letters supporting its nonappearance defense. The provider obtained summary judgment on its assigned no-fault claims, and MVAIC appealed the denial of its cross motion. The affidavit from an employee of the company retained to schedule the IMEs did not sufficiently describe a standard office practice or procedure ensuring that the letters were properly addressed and mailed. MVAIC therefore failed to show that the IMEs were properly scheduled. The Appellate Term, Second Department, affirmed the order and did not review the provider's prima facie case because MVAIC raised no issue concerning it.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51796(U)
Insurer prevailed
The insurer established timely EUO requests, the assignor's nonappearance, and a timely denial based on that failure. In the provider's action for assigned no-fault benefits, the insurer showed that timely mailed EUO scheduling letters tolled its time to pay or deny the claim and that the assignor missed both properly scheduled EUOs. Because the provider did not claim that the assignor had objected to the reasonableness of the requests, its objections were not heard. An assignor's EUO appearance is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51807(U)
Split result
The provider's evidentiary preclusion did not warrant dismissal because the insurer's denials admitted receipt of the bills. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion and affirmed denial of the insurer's cross motion. The provider failed to establish untimely payment or denial, or a timely denial that was conclusory, vague or legally meritless, under Insurance Law § 5106 (a). The insurer argued that a so-ordered discovery stipulation barring the bills and the provider's own documentary proof of submission prevented recovery at trial. But the trial burden required proof of submission, and the denials admitted receipt. The insurer therefore did not establish that the provider would be unable to prove its right to recover.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51810(U)
Provider prevailed
The insurer's challenge to the provider's standing based on a missing assignment form was raised for the first time on appeal. The Appellate Term, Second Department, affirmed the provider's summary judgment award and denial of the insurer's cross motion dismissing the complaint. The standing argument was not properly before the court. Alternatively, the claim forms received by the insurer stated that the assignor had executed an assignment and that the signature was on file, rendering the challenge meritless under Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. The insurer's remaining argument was also raised for the first time on appeal and was rejected as meritless without further description.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51824(U)
Split result
The insurer rebutted presumed receipt of one claim, leaving a factual issue, and proved IME and EUO nonappearances on the remaining claims. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion on the fourth cause of action, while affirming dismissal of the remaining claims and denial of the provider's motion. Although the provider established its prima facie case, the insurer described its mail receipt procedures and stated that it had no record of receiving the fourth claim. Neither side was entitled to summary judgment on that claim. For the others, the insurer proved timely mailing of scheduling letters and denials and the assignor's nonappearances, establishing failure to comply with conditions precedent to coverage.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51826(U)
Split result
The insurer proved mailing of IME notices and denials but failed to establish its fee schedule defense to two claims. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion on the first and sixth causes of action, while affirming dismissal of the other five claims and denial of the provider's motion. The insurer's affidavits sufficiently described a standard office mailing practice and procedure, defeating the provider's challenge concerning the denials and IME scheduling letters. The five dismissed claims had been denied for IME nonappearances. For the first and sixth causes of action, the insurer did not establish that the fees exceeded the workers' compensation fee schedule, leaving a triable factual issue.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51830(U)
Insurer prevailed
The provider's challenge to the follow-up verification notice was unpreserved because it was raised for the first time on appeal. Civil Court granted the defendant summary judgment dismissing the assigned no-fault claims, finding timely denials based on the assignor's failure to attend duly scheduled EUOs. The provider's sole appellate argument concerned the sufficiency of the letter advising it of the follow-up verification request under 11 NYCRR 65-3.6 (b). The Appellate Term, Second Department, declined to consider that argument and affirmed the order granting the defendant's motion.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51823(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 sought assigned benefits after its assignor was struck by a vehicle whose owner was known to both the provider and the assignor. Following Hauswirth v American Home Assur. Co., the provider was required to exhaust remedies against that owner and failed to demonstrate that it had done so. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51818(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 its assignor knew the identity of the owner of the vehicle that had struck the assignor, but the provider did not demonstrate exhaustion of its remedies against the owner. The Appellate Term, Second Department, deemed MVAIC's appeal taken from the subsequently entered judgment under CPLR 5501 (c). It reversed the judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51817(U)
Insurer prevailed
The assignor was not a covered person because no timely notice of claim was filed with MVAIC and no leave to file a late notice was sought. MVAIC established those omissions under Insurance Law § 5208 (a) and (c). The condition precedent to the provider's right to apply for no-fault benefits was therefore unsatisfied because the assignor did not qualify under Insurance Law § 5221 (b) (2). 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 dismissing the complaint. It reached no other issue.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51816(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 its assignor knew the identity of the owner of the vehicle the assignor had been driving at the time of the accident. The provider did not demonstrate that it had exhausted remedies against the owner. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denying MVAIC's cross motion. It denied the provider's motion and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51813(U)
Split result
MVAIC established that one claim was time-barred but failed to establish when the other claim accrued. MVAIC sought summary judgment dismissing the provider's assigned no-fault action on limitations grounds or, alternatively, reduction of the ad damnum clause. It proved that the action on the $3,112.85 claim was untimely, and the provider raised no factual issue. The record lacked the facts needed to determine accrual of the $5,009 claim, preventing dismissal of that claim as a matter of law. The Appellate Term, Second Department, modified the order to dismiss only the $3,112.85 claim and otherwise affirmed, rejecting MVAIC's contention concerning the ad damnum clause.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51811(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 its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger when the accident occurred. The provider failed to demonstrate exhaustion of its remedies against that owner. The Appellate Term, Second Department, deemed MVAIC's appeal taken from the subsequently entered judgment under CPLR 5501 (c), reversed the judgment, vacated the underlying order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51803(U)
Split result
The insurer failed to prove mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment. In this action for assigned no-fault benefits, Civil Court denied the provider's motion and granted the insurer's cross motion based on the assignor's IME nonappearance. Without proof of mailing, the insurer did not establish that the IMEs were properly scheduled. The provider's affidavit did not establish an untimely denial or a timely denial that was conclusory, vague or meritless as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion, otherwise affirmed, and declined to limit the trial issues under CPLR 3212 (g).
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51794(U)
Insurer prevailed
The insurer's IME scheduling letters complied with the No-Fault Regulations, warranting summary judgment dismissing the provider's complaint. The provider sought assigned first-party no-fault benefits, and the insurer moved to dismiss based on the assignor's failure to appear for duly scheduled IMEs. Civil Court denied both parties' summary judgment motions and limited trial to the propriety of the scheduling letters. Applying 11 NYCRR 65-3.5 (e), the Appellate Term, Second Department, found the letters compliant. Because the provider did not challenge the finding that the insurer was otherwise entitled to judgment, it reversed the order, insofar as appealed from, and granted the insurer's motion.
Appellate Term, First Department
Dec 17, 2014
2014 NY Slip Op 51766(U)
Provider prevailed
The insurer failed to establish proper mailing of its denials or a sufficient medical basis for denying continued acupuncture treatment. Its claims administrator's affidavit described placement in a mail bin and pickup by an outside mailing service, but gave no personal knowledge or description of that service's procedures to ensure timely, proper delivery. An affidavit from the mailing service submitted in reply did not cure the deficiency. The peer review acupuncturist also supplied insufficient facts or medical rationale; the assignor's subjective report of feeling worse after three months did not alone eliminate factual issues concerning medical necessity. The Appellate Term, First Department, reversed the order, insofar as appealed from, and reinstated the disputed claim.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51793(U)
Split result
The provider's summary judgment award on the fourth cause of action was reversed because verification responses remained disputed. The Appellate Term, Second Department, denied that branch of the provider's motion and affirmed denial of the insurer's cross motion to dismiss the complaint as premature. It relied on a triable issue concerning the sufficiency of the responses.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51795(U)
Split result
The provider's verification responses presented a factual dispute that precluded summary judgment for either party. The insurer sought dismissal of the assigned no-fault action as premature, and the provider cross-moved for summary judgment. The insurer demonstrated timely mailing of initial and follow-up verification requests, but the record presented a triable issue as to whether the provider adequately responded. A claim need not be paid or denied until all demanded verification is supplied, and an action is premature when the provider fails to respond. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and otherwise affirmed, leaving the denial of the insurer's motion intact.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51799(U)
Split result
The insurer proved full fee schedule payment for acupuncture claims, but medical necessity remained a factual issue on another claim. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion on the claim denied for lack of medical necessity, while affirming dismissal of the fee schedule claims and denial of the provider's motion. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer adequately demonstrated full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors. The provider raised no triable issue in response. The remaining claim required resolution of a factual issue concerning medical necessity, precluding its summary dismissal.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51800(U)
Provider prevailed
The insurer's summary judgment motion was denied as to the appealed claim because medical necessity presented a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the providers' action for assigned no-fault benefits. The appeal was limited to one provider's claim, and the court relied on its review of the record and Zuckerman v City of New York.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51802(U)
Insurer prevailed
The provider's action was premature because it did not show that all requested verification had been supplied before suit. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. The no-fault claims examiner's affidavit established timely mailing of the initial and follow-up verification requests. The insurer demonstrated that it had not received all requested verification, and the provider did not establish a response before commencing the action. Under 11 NYCRR 65-3.8 (a), the 30-day period within which the insurer was required to pay or deny the claims had not begun to run.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51804(U)
Provider prevailed
The insurer's summary judgment motion was denied, and the provider's CPLR 3212 (g) findings were preserved on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Citing EMC Health Prods., Inc. v Geico Ins. Co., the court found no sufficient basis to strike those findings and, upon reviewing the record, identified a triable issue of medical necessity.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51806(U)
Split result
The insurer's summary judgment cross motion was denied on appeal because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, modified the order accordingly and affirmed denial of the provider's motion. Although the insurer established timely medical necessity denials, the court's review of the record disclosed a factual issue concerning the supplies at issue.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51808(U)
Insurer prevailed
The provider failed to establish that the insurer's denials were untimely or legally insufficient, defeating its prima facie showing. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., a provider must submit admissible evidence of mailing its claims and either failure to pay or deny within 30 days or timely denials that are conclusory, vague or meritless as a matter of law. The employee's affidavit established mailing and nonpayment within 30 days, but did not demonstrate untimely denials or legally insufficient timely denials. The provider therefore failed to satisfy its initial burden.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51815(U)
Insurer prevailed
An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the provider's complaint. An employee of the IME scheduling company established timely mailing of scheduling letters through standard office mailing practices. Affidavits from the healthcare professionals scheduled to conduct the IMEs established the assignors' nonappearances. The insurer's litigation examiner also established timely mailing of denial forms. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the proven nonappearances supported dismissal.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51819(U)
Insurer prevailed
The insurer's affidavits and physician affirmations established timely mailing of IME requests and the assignor's nonappearances. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. Civil Court had identified the IME nonappearance defense as the sole trial issue. The scheduling company's president established timely mailing of the requests, and affirmations from the physicians scheduled to conduct the IMEs established that the assignor failed to attend. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that proof warranted dismissal. The provider did not challenge Civil Court's finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51820(U)
Split result
The insurer established an IME nonappearance defense to two claims but failed to prove timely denials of two others. The Appellate Term, Second Department, modified the order to grant summary judgment dismissing the two claims supported by timely IME nonappearance denials and affirmed denial of dismissal of the other two. For the dismissed claims, the insurer established timely mailing of denials under 11 NYCRR 65-3.8 (a), timely mailing of IME scheduling letters through the scheduler's office practices, and nonappearances through the scheduled examiner's affidavit. The assignor thereby failed to comply with a condition precedent to coverage. For the remaining claims, the insurer failed to establish timely denials under 11 NYCRR 65-3.8 (l).
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51821(U)
Insurer prevailed
The insurer proved nonreceipt of requested verification for one claim and the assignor's IME nonappearances for the remaining claims. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint. The insurer's affidavit sufficiently established timely and proper mailing of verification requests and denial forms. For the first cause of action, the insurer demonstrated that it had not received the requested verification, and the provider did not show that it had supplied it. For the remaining causes of action, the insurer established the assignor's failure to attend scheduled IMEs, defeating the provider's appellate challenges.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51822(U)
Split result
The insurer proved the assignor's IME nonappearances but failed to establish its fee schedule defense for other claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing the third cause of action and the portions of the first and second based on IME nonappearance denials. The IME scheduler's manager established timely mailing, and the scheduled examiners established nonappearances. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. Denial of summary judgment remained intact for portions of the first and second causes of action based on fee schedule denials because the claims examiner's affidavit was insufficient. The insurer also failed to justify striking the provider's CPLR 3212 (g) findings.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51825(U)
Split result
The insurer's verification requests were timely, but a factual issue remained as to whether the provider adequately responded. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment cross motion and affirmed denial of the insurer's motion to dismiss the complaint as premature. Contrary to Civil Court's finding, the insurer established timely mailing of both initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). A claim need not be paid or denied until all duly requested verification is supplied, and an action is premature if a provider fails to respond to timely requests. The unresolved adequacy of the provider's responses prevented summary judgment for either side.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51827(U)
Provider prevailed
The insurer's summary judgment cross motion was denied, and the provider's CPLR 3212 (g) findings were preserved on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Citing EMC Health Prods., Inc. v Geico Ins. Co., the court found no sufficient basis to strike those findings and, upon reviewing the record, identified a triable issue of medical necessity.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51828(U)
Provider prevailed
The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, affirmed the order in the provider's action for assigned no-fault benefits. Although the insurer established timely mailing of its denial forms, the court's review of the record disclosed a factual issue concerning the medical necessity of the services.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51829(U)
Split result
The provider's summary judgment motion was denied on appeal because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, modified the order accordingly and affirmed denial of the insurer's cross motion. The insurer established a timely medical necessity denial, but the court's review of the record disclosed a factual issue concerning the services.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51831(U)
Split result
A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on its first cause of action and deny the insurer's cross motion on that claim, while affirming dismissal of the remaining claims. The provider's owner's affidavit established mailing and receipt of the first claim and nonpayment or denial within 30 days under Insurance Law § 5106 (a). The insurer's sole purported verification letter did not toll that period. For the remaining claims, the insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51832(U)
Insurer prevailed
The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the provider's complaint for assigned no-fault benefits. The insurer submitted an affidavit establishing timely mailing of its denial on medical necessity grounds and an affirmed peer review report supporting the reviewing doctor's determination. The provider did not rebut that prima facie showing, entitling the insurer to dismissal.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51833(U)
Insurer prevailed
The provider's action was premature because the insurer proved timely verification requests and nonreceipt of the requested material. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint. The insurer's affidavits established timely mailing of initial and follow-up verification requests relating to the claim. The provider did not show that it had supplied the requested verification before commencing the action. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny the claim therefore had not begun to run.
Appellate Term, Second Department
Dec 17, 2014
2014 NY Slip Op 51834(U)
Insurer prevailed
The provider's action was premature because requested verification remained outstanding when the action commenced. 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 for summary judgment dismissing the complaint. Civil Court had treated the provider's response to verification requests as the sole remaining trial issue. The insurer demonstrated nonreceipt of the requested verification, and the provider did not show that it had supplied it before commencing suit. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny had not begun. The provider did not challenge the finding that the insurer was otherwise entitled to judgment.
Appellate Term, First Department
Dec 15, 2014
2014 NY Slip Op 51752(U)
Provider prevailed
The insurer failed to establish untimely receipt of the provider's claim, and a stamped mailing certificate raised a factual issue. The insurer relied on an affidavit from its claims administrator's representative stating that the claim was absent from that office's paper and computer files. The representative lacked personal knowledge of the insurer's procedures for handling claims sent to its designated submission address in another office. The provider also produced a stamped mailing certificate tending to show timely mailing to that designated address. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied the motion, and reinstated the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Dec 11, 2014
2014 NY Slip Op 51786(U)
Provider prevailed
The insurer failed to offer trial evidence on timely EUO notices and denials after stipulating to the provider's prima facie case. At the nonjury trial of the provider's assigned no-fault action, the sole remaining issues were whether the insurer timely sent EUO scheduling letters and timely denied the claims. After counsel discussed the underlying facts with Civil Court, Kings County, the insurer called no witnesses and presented no evidence. The Civil Court, Kings County, awarded judgment to the provider. Following Dilon Med. Supply Corp. v Travelers Ins. Co., the Appellate Term, Second Department, found no basis to reverse in light of the stipulation and the insurer's failure of proof, and affirmed the judgment.
Appellate Term, Second Department
Dec 11, 2014
2014 NY Slip Op 51787(U)
Insurer prevailed
The insurer's affidavits established timely mailing of EUO notices and denials and the provider's failure to appear. The provider appealed a judgment dismissing its assigned no-fault action after the insurer obtained summary judgment based on the provider's nonappearance at duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's challenges to the insurer's proof of mailing and nonappearance. Because the provider did not claim to have responded in any way to the EUO requests, its objections concerning those requests were not heard on appeal. The court found the remaining contentions without merit and affirmed the judgment, leaving dismissal in the insurer's favor intact.
Appellate Term, Second Department
Dec 5, 2014
2014 NY Slip Op 51729(U)
Insurer prevailed
The providers failed to demonstrate meritorious claims after allowing a CPLR 3216 90-day notice to expire without action. They neither filed a notice of trial nor moved to vacate the notice or extend the 90-day period. To avoid dismissal under CPLR 3216 (e), they were required to show both a justifiable excuse for delay and a meritorious cause of action. Counsel's conclusory assertion that bills had been submitted and remained unpaid after 30 days did not establish merit, and the action was not commenced upon a verified complaint under CPLR 105 (u). The Appellate Term, Second Department, reversed the order denying dismissal and granted the insurer's CPLR 3216 motion.
Trial court, First Department
Dec 12, 2014
2014 NY Slip Op 51940(U)
Insurer prevailed
An office-based surgical facility without Public Health Law article 28 licensure may not bill facility fees under the PAS fee schedule. The provider, accredited under Public Health Law § 230-d, sought assigned no-fault benefits using the facility-fee-inclusive Products of Ambulatory Surgery classification. The Civil Court, New York County, granted the insurer's summary judgment motion under CPLR 3212 and dismissed the complaint. Insurance Law § 5108 (a) limited reimbursement to established workers' compensation schedules, and PAS facility fees were authorized for article 28 facilities. Section 230-d supplied no facility-fee entitlement, and Department of Health guidance supported denial. The ruling addressed PAS billing without resolving whether another billing method could support recovery.
