Appellate Division, First Department
Mar 31, 2015
2015 NY Slip Op 02714
Subsequent insurance coverage terminates an earlier policy on the same vehicle regardless of compliance with statutory cancellation requirements. The Appellate Division, First Department, affirmed an order granting the respondent insurer's cross petition to vacate a no-fault arbitration award in MVAIC's favor. A Department of Motor Vehicles expansion established that another insurer had subsequently insured the offending vehicle. Under Vehicle and Traffic Law § 313 (1) (a), that coverage terminated the respondent's coverage when the later policy took effect. The arbitrator's reliance on the respondent's failure to prove proper cancellation was arbitrary and capricious, and awarding coverage where none existed exceeded the arbitrator's authority.
Appellate Division, First Department
Mar 3, 2015
2015 NY Slip Op 01750
A no-fault arbitrator acts arbitrarily by giving an IME report no weight solely for lack of notarization under CPLR 2106. The Appellate Division, First Department, reversed the denial of the insurer's vacatur petition, vacated the award, and remanded for a new hearing before a different arbitrator. The arbitrator had disregarded a chiropractor's IME report solely because it was not notarized. Under 11 NYCRR 65-4.5 (o) (1), strict conformity to evidentiary rules is unnecessary. Because no substantive determination of the report's weight had been made, the master arbitrator and Supreme Court erred in deferring to the arbitrator's assessment.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50476(U)
Provider prevailed
The insurer's first EUO scheduling letter, mailed nearly three months after receipt of the claim, was a nullity. Under 11 NYCRR 65-3.5 (b), additional verification, including an EUO request, must be requested within 15 business days after receipt of the NF-3. Because the first scheduling letter was untimely, there was no duly scheduled EUO at which the provider failed to appear. The insurer therefore did not establish a proper denial based on failure to comply with a condition precedent to coverage. The Appellate Term, Second Department, affirmed the denial of the insurer's summary judgment motion dismissing the complaint.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50481(U)
Insurer prevailed
The provider's request for jurisdictional discovery was unpreserved and lacked tangible evidence that jurisdictional facts might exist. The insurer moved under CPLR 3211 (a) (8), submitting affidavits that it was a Pennsylvania company with no identified business presence in New York. The provider offered only an unverified complaint and counsel's conclusory assertions about issuing policies to New York drivers and retaining New York defense counsel. Its sole appellate contention, seeking discovery under CPLR 3211 (d), was raised for the first time on appeal. Even if considered, those submissions did not make a sufficient start toward establishing jurisdiction. The Appellate Term, Second Department, affirmed dismissal of the provider's no-fault action.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50475(U)
Split result
Both sides failed to establish summary judgment entitlement: the provider's denial proof was deficient, and the insurer did not prove EUO nonappearance. The provider's supporting affidavit did not establish that the claim was not timely denied or that a timely denial was conclusory, vague or legally without merit. Its motion was therefore properly denied under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The insurer likewise failed to establish, as a matter of law, that the provider missed properly scheduled EUOs. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both summary judgment applications denied.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50479(U)
Provider prevailed
A timely application for a default judgment prevents dismissal as abandoned under CPLR 3215 (c), even if the application is unsuccessful. The provider applied within one year of the insurer's default, then filed a second application that was granted. The insurer therefore could not obtain dismissal merely because judgment was entered later. Vacatur under CPLR 5015 (a) (1) also failed: denial of receipt did not rebut the service affidavit's presumption, and the insurer offered neither an explanation for failing to answer nor a potentially meritorious defense. It also gave no excuse for its five-month delay in seeking vacatur. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate and dismiss.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50482(U)
Insurer prevailed
The provider's action was premature because timely requested verification had not all been supplied before suit began. The insurer's examiner and mail room supervisor established timely mailing of initial and follow-up requests and nonreceipt of all requested verification. The payment-or-denial period had not begun under 11 NYCRR 65-3.8 (a) (1). Because the order's recital under CPLR 2219 (a) showed no consideration of opposition papers, appellate review was limited to the provider's motion and insurer's cross motion. The provider's remaining argument was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion.
Appellate Term, Second Department
Mar 26, 2015
2015 NY Slip Op 50491(U)
Insurer prevailed
The provider's first cause of action was premature because timely requested verification remained outstanding when suit began. The insurer's claims examiner established timely mailing of the initial and follow-up verification requests and nonreceipt of the requested material. The provider did not show that it supplied the verification before commencing the action. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny that claim had therefore not begun to run. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's summary judgment motion seeking dismissal of the first cause of action.
Appellate Term, First Department
Mar 23, 2015
2015 NY Slip Op 50350(U)
Insurer prevailed
MVAIC need not notify a provider of a scheduled IME before relying on the resulting report to deny further treatment. MVAIC established timely denials supported by its acupuncturist's sworn IME report, which gave a factual basis and medical rationale for finding the assignor's injuries resolved and further acupuncture unnecessary. Under 11 NYCRR 65-1.1, 65-3.5 (b) and (c), and 65-3.6 (b), lack of notice to the provider did not justify excluding the report. The provider's attorney affirmation, unsupported by medical evidence or other competent proof, raised no triable issue. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, First Department
Mar 23, 2015
2015 NY Slip Op 50349(U)
Insurer prevailed
MVAIC's motion for summary judgment dismissing the provider's complaint was granted in its entirety on appeal. The Appellate Term, First Department, reversed the order, insofar as appealed from, relying on the reasons stated in the companion appeal decided the same day, No. 14-190, without giving independent reasoning.
Appellate Term, First Department
Mar 23, 2015
2015 NY Slip Op 50352(U)
Insurer prevailed
MVAIC's motion for summary judgment dismissing the provider's complaint was granted on appeal. The Appellate Term, First Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in the companion appeal decided the same day, No. 14-190, without giving independent reasoning.
Appellate Term, First Department
Mar 23, 2015
2015 NY Slip Op 50346(U)
Insurer prevailed
An assignor's IME nonappearance permits retroactive denial of all claims to the date of loss regardless of denial timing or initial grounds. The insurer established timely, proper mailing of IME notices and repeated nonappearance through sworn affidavits of the examining chiropractor and third-party scheduler. Those affidavits demonstrated personal knowledge and described office practices when an assignor fails to appear. The provider neither specifically denied nonappearance nor raised an issue concerning mailing or reasonableness of the notices. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, First Department
Mar 23, 2015
2015 NY Slip Op 50348(U)
Insurer prevailed
The provider's potential attorney-fee recovery was capped at $850 for consolidated claims involving the same assignor and accident. Under 11 NYCRR 65-4.6 (e), as interpreted in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., fees were calculated on the aggregate of all bills for each insured disputed in an action. The Appellate Term, First Department, affirmed the fee limitation in four consolidated actions involving the same parties. It dismissed the provider's appeal from the consolidation ruling under CPLR 5511 because the provider had expressly consented to consolidation.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50406(U)
Insurer prevailed
The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests. The insurer's affidavits established timely mailing of EUO scheduling letters and denials through standard office practices. Its attorney, who was present to conduct the EUOs on the scheduled dates, established the provider's nonappearance. Because the provider had not responded to the requests, its later objections to their justification were unavailable. Discovery concerning reasonableness was therefore unnecessary to oppose summary judgment under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order granting the insurer's summary judgment motion dismissing the complaint.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50402(U)
Insurer prevailed
The provider could not pursue objections to EUO requests it had not answered, and reasonableness discovery was unnecessary to oppose dismissal. The insurer obtained summary judgment based on the provider's failure to attend duly scheduled EUOs. On appeal, the provider challenged mailing, justification for the requests and the absence of requested discovery. The insurer's affidavits established timely mailing of scheduling letters and denials through standard office practices. Because the provider did not claim any response to the EUO requests, its objections were not heard, and CPLR 3212 (f) did not require discovery concerning their reasonableness. The Appellate Term, Second Department, affirmed dismissal of the complaint.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50414(U)
Insurer prevailed
The insurer established that it had not issued the policy covering the accident and that the provider had sued the wrong carrier. In the action for assigned no-fault benefits, the insurer submitted affidavits from its litigation manager and a manager of the carrier that issued the policy. The latter manager attested that that carrier had issued the policy covering the accident. These affidavits sufficiently established the lack-of-coverage defense and entitled the defendant insurer to summary judgment dismissing the complaint. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50409(U)
Insurer prevailed
A provider that knows who owns the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC relief. The provider and its assignor knew the identity of the owner of the vehicle that struck the assignor. Following Hauswirth v American Home Assur. Co., the court found that the provider had not demonstrated exhaustion of remedies against that owner. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting its summary judgment motion, denied that motion and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50400(U)
Insurer prevailed
The provider's proof of mailing and nonpayment did not establish an untimely denial or a timely denial lacking legal merit. Its owner's affidavit showed that claim forms were mailed and payment was not made within 30 days, but did not address whether the insurer timely denied them or issued conclusory, vague or legally meritless denials. The provider therefore failed its initial summary judgment burden under Insurance Law § 5106 (a) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. Independently, the insurer's litigation examiner's affidavit and complete denials raised a triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order and denied the provider's summary judgment motion.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50401(U)
Split result
The provider proved its first claim, while its verification-mailing affidavit raised a factual issue on whether the second claim was premature. The owner's affidavit established prima facie entitlement on the first cause of action under Insurance Law § 5106 (a); the insurer's mere denial of receipt did not rebut the mailing presumption. For the second cause, the insurer established timely verification requests and nonreceipt, implicating 11 NYCRR 65-3.8 (a). The provider's employee affidavit created a presumption of mailing and receipt of the requested verification, leaving a triable issue. The Appellate Term, Second Department, modified the order to grant the provider summary judgment only on the first cause and deny the insurer's cross motion entirely.
Appellate Term, Second Department
Mar 17, 2015
2015 NY Slip Op 50422(U)
Insurer prevailed
The provider failed to establish an overdue claim or a timely denial that was conclusory, vague or legally without merit. In its action for assigned no-fault benefits, the provider sought summary judgment. Its proof did not show failure to pay or deny within the 30-day period under Insurance Law § 5106 (a), or establish that a timely denial lacked legal merit. The Appellate Term, Second Department, affirmed denial of the provider's motion because it had not demonstrated prima facie entitlement to judgment.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50388(U)
Split result
The insurer's dismissal proof failed because receipt of one claim was disputed and mailing of the remaining denials was not established. The provider's papers did not establish an overdue claim or a timely denial lacking legal merit under Insurance Law § 5106 (a), so its summary judgment motion remained denied. For the third cause, the insurer's nonreceipt affidavit conflicted with the owner's proof of mailing, creating a factual issue about when the payment-or-denial period began. For the remaining causes, employee affidavits showed pickup by third-party mailing services but did not establish those services' standard mailing procedures. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion in full and otherwise affirmed.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50389(U)
Insurer prevailed
The provider's action against the appealing insurer was untimely because it began more than six years after the no-fault claims accrued. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, the claims accrued 30 days after receipt, and CPLR 213 (2) supplied the six-year contract limitations period. The insurer established receipt on or before February 8, 2001, and accrual on or before March 10, 2001; suit began in June 2007. The insurer did not have to prove, as part of its prima facie showing, that verification requests had not tolled the payment due date. The Appellate Term, Second Department, reversed and granted summary judgment dismissing the complaint only against that insurer.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50394(U)
Insurer prevailed
The insurer established the assignor's failure to attend duly scheduled IMEs and timely mailing of the requests and denials. The president of the retained scheduling company supplied an affidavit proving timely mailing of the IME requests. Affirmations and an affidavit from the medical providers scheduled to perform the examinations established nonappearance, while the claims examiner's affidavit established timely mailing of denials based on that ground. Because attendance at an IME is a condition precedent to policy liability under 11 NYCRR 65-1.1, the insurer was entitled to dismissal. The Appellate Term, Second Department, reversed the order denying its motion and granted summary judgment dismissing the complaint.
Appellate Term, First Department
Mar 16, 2015
2015 NY Slip Op 50318(U)
Provider prevailed
The insurer failed to establish timely IME requests because the record did not show when it received the provider's claims. Seeking summary judgment dismissing an action for assigned first-party no-fault benefits, the insurer asserted that the assignor missed two scheduled IMEs. Under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer had to establish that it requested the examinations within the procedures and time frames prescribed by the no-fault regulations. Without claim-receipt dates, timeliness could not be determined. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50393(U)
Insurer prevailed
The assignor's failure to attend duly scheduled IMEs warranted dismissal of both claims, including one dismissed on a search of the record. The insurer proved timely requests, nonappearance and timely denial of the second claim through the scheduler's, examining providers' and claims examiner's submissions. IME attendance was a condition precedent under 11 NYCRR 65-1.1. The same nonappearance warranted dismissal of the first claim, so the appellate court did not reach whether the provider supplied requested verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and dismissing the second cause, and awarded the nonappealing insurer summary judgment dismissing the first cause upon searching the record.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50399(U)
Insurer prevailed
The insurer established timely EUO and IME notices, the assignor's nonappearance and timely denials based on those failures. Its proof also showed that scheduling letters tolled the time to pay or deny where necessary. Contrary to the provider's appellate argument, the mailing affidavit stated that two copies of each denial were mailed. In any event, under Mollo Chiropractic, PLLC v American Commerce Ins. Co., failure to send a denial in duplicate is not by itself fatal. Attendance at a properly scheduled EUO or IME is a condition precedent to policy liability. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50398(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought. Under Insurance Law § 5208 (a) and (c), that failure meant the assignor was not a covered person within Insurance Law § 5221 (b) (2). A condition precedent to the provider's right to seek no-fault payment from MVAIC was therefore unsatisfied. 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
Mar 16, 2015
2015 NY Slip Op 50395(U)
Provider prevailed
MVAIC failed to offer admissible evidence that the assignor could recover no-fault benefits under an existing automobile policy. The provider obtained summary judgment on its assigned-benefits claims, and MVAIC's cross motion to dismiss was denied. MVAIC argued that the assignor had not exhausted available remedies before seeking payment from it. The evidence did not establish coverage on the accident date. Although hearsay may be considered in opposition to summary judgment, hearsay alone cannot defeat the motion. MVAIC therefore neither raised a triable issue nor established entitlement to judgment. The Appellate Term, Second Department, affirmed the judgment for the provider.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50391(U)
Insurer prevailed
The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's peer-review conclusions that the supplies were unnecessary. The insurer submitted two peer-review reports and the reviewing chiropractors' affidavits, each supplying a factual basis and medical rationale for lack of medical necessity. The provider's opposing affidavit did not raise a triable issue, and the provider did not challenge the lower court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the CPLR 3212 (g) findings favoring the provider and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50392(U)
Insurer prevailed
The insurer's affidavits established that the assignor failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss. On appeal, the provider challenged the sufficiency of the nonappearance proof. The affidavits were sufficient, and under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., EUO attendance is a condition precedent to policy liability. The Appellate Term, Second Department, affirmed denial of the provider's motion and dismissal on the insurer's cross motion.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50396(U)
Insurer prevailed
The provider's unopposed motion failed because its papers did not establish an overdue claim or a timely denial lacking legal merit. The provider sought summary judgment for assigned no-fault benefits. Its submissions did not show that the insurer failed to pay or deny within the 30-day period under Insurance Law § 5106 (a), or that a timely denial was conclusory, vague or without merit as a matter of law. The absence of opposition did not establish the provider's entitlement on this record. The Appellate Term, Second Department, affirmed denial of the provider's motion.
Appellate Term, Second Department
Mar 16, 2015
2015 NY Slip Op 50397(U)
Split result
A factual issue over discovery preclusion prevented either side from obtaining summary judgment on the assignor's IME nonappearance. The insurer established timely IME requests, nonappearance and timely denials, making a prima facie showing under 11 NYCRR 65-1.1. The provider invoked a so-ordered stipulation requiring discovery responses within 60 days or precluding evidence concerning unanswered demands. Its papers omitted the demands and did not establish noncompliance, leaving a factual issue over whether the insurer could interpose its defense. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its cross motion and denied that cross motion; denial of the insurer's motion remained in place.
Appellate Term, Second Department
Mar 13, 2015
2015 NY Slip Op 50387(U)
Provider prevailed
The insurer failed to prove mailing of IME notices or that the provider's fee exceeded the workers' compensation fee schedule. The provider sought assigned no-fault benefits under three causes of action. The insurer's affidavit did not sufficiently describe an office practice ensuring that IME scheduling letters were properly addressed and mailed, so it did not establish nonappearance at duly scheduled IMEs for the second and third causes of action. For the first, seeking an unpaid claim balance, the insurer did not establish that the charged fee exceeded the applicable schedule. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion in full.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50378(U)
Insurer prevailed
A denial based on two missed EUOs is not conclusory, vague or meritless as a matter of law merely because it omits the scheduled dates. The provider appealed only the denial of its cross motion for summary judgment on assigned no-fault claims. Under Insurance Law § 5106 (a), it had to demonstrate untimely payment or denial, or a legally deficient denial. It did not allege nonreceipt of a denial, and the form identified failure to attend two properly scheduled EUOs as the ground. The defendant's attachment of an incomplete copy did not entitle the provider to judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50382(U)
Provider prevailed
The insurer's untimely follow-up EUO requests and late denials precluded its EUO nonappearance defense to the provider's first six claims. The provider failed to establish prima facie entitlement to summary judgment because it proved neither nonpayment or denial within 30 days under Insurance Law § 5106 (a), nor a timely denial legally insufficient on its face. Nevertheless, the insurer's cross-motion papers established that its follow-up EUO requests were untimely under 11 NYCRR 65-3.6 (b) and that the claims were not denied within 30 days of receipt under 11 NYCRR 65-3.8 (a) (1). The Appellate Term, Second Department, affirmed the judgment awarding the provider recovery on its first six causes of action.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50377(U)
Insurer prevailed
Appearance at a duly scheduled EUO is a condition precedent to an insurer's liability under the policy. In the provider's action for assigned first-party no-fault benefits, the insurer established that the provider failed to appear at either scheduled EUO and that the denial forms were timely mailed. Applying 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50383(U)
Provider prevailed
The provider's physician affirmation raised a triable issue as to whether the services were medically necessary. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned first-party no-fault benefits. The Appellate Term, Second Department, found the affirmation submitted in opposition sufficient to defeat the insurer's motion, reversed the order, and denied summary judgment. It declined the provider's request to limit the issues for trial under CPLR 3212 (g).
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50386(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 at the time of the accident. The provider failed to demonstrate exhaustion of its remedies against that owner. The Appellate Term, Second Department, deemed the appeal taken from the subsequently entered judgment under CPLR 5501 (c), reversed that judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50385(U)
Insurer prevailed
A provider with sufficient information to identify the vehicle owner must exhaust remedies against that owner before seeking MVAIC benefits. Following a nonjury trial limited to the assignor's covered status and eligibility for benefits under an insurance policy, the provider obtained judgment. The provider and assignor had sufficient information to identify the owner of the Pennsylvania vehicle in which the assignor was a passenger. The provider did not demonstrate exhaustion of remedies against that owner. The Appellate Term, Second Department, reversed the judgment and remitted for entry of judgment dismissing the complaint in MVAIC's favor, passing on no other issue.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50379(U)
Insurer prevailed
The insurer established that its payment for trigger point injections exceeded the amount due under the workers' compensation fee schedule. Its affidavits supported applying Ground Rules 3 and 5 and CPT code 20552 to services billed under CPT code 20553. The insurer calculated reimbursement for 20 injections at $592.07 but mistakenly paid $645.90 for 21 injections; the provider did not rebut the showing. The denial identified a fee schedule reduction through a checked box and referenced an attached explanation of review. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50380(U)
Insurer prevailed
The insurer's affidavits established timely mailing of IME notices and the assignor's failure to appear for the scheduled IMEs. The insurer sought summary judgment dismissing the provider's assigned no-fault claims. Civil Court had found under CPLR 3212 (g) that the denials were timely and proper, leaving notice mailing and nonappearance for trial. The scheduling company's president established timely mailing, and the examining chiropractors established nonappearance. Because 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, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 12, 2015
2015 NY Slip Op 50384(U)
Provider prevailed
The parties' conflicting medical opinions raised a triable issue as to the medical necessity of the provider's services. In this action for assigned first-party no-fault benefits, the insurer appealed the denial of summary judgment dismissing the provider's second cause of action. Although the insurer established timely mailing of the denial, the competing expert opinions prevented summary disposition on medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving that cause of action pending.
Appellate Term, First Department
Mar 4, 2015
2015 NY Slip Op 50271(U)
Insurer prevailed
An assignor's failure to attend duly noticed IMEs permits denial retroactive to the loss, regardless of denial timeliness. The insurer established timely and proper mailing of the IME notices and the assignor's nonappearance. The provider did not specifically deny nonappearance or raise a triable issue concerning mailing or the notices' reasonableness. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the defense remained available even though the insurer initially denied the claims on other grounds. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 2, 2015
2015 NY Slip Op 25079
Insurer prevailed
A provider receiving a prescribed authorization to pay must submit to a duly scheduled EUO even before receiving an assignment of benefits. The provider submitted NF-3 forms under an authorization to pay and received an assignment later. It argued that it was not obligated to attend EUOs when it submitted the claims. Reading 11 NYCRR 65-3.11 (a) and (b) together, the Appellate Term, Second Department, concluded that both forms imposed the EUO obligation. Alternatively, a provider submitting claims under an authorization acted as the injured person's representative under 11 NYCRR 65-1.1 (d). The court affirmed summary judgment dismissing the complaint for the insurer based on the provider's nonappearance and denial of the provider's cross motion. A remaining argument was unpreserved and, alternatively, meritless.
