Appellate Division, First Department
May 7, 2015
2015 NY Slip Op 03925
Provider prevailed
The insurer's summary judgment motion based on the claimant's EUO nonappearance was denied because essential discovery remained outstanding. The Appellate Division, First Department, reversed the judgment to the extent appealed from and vacated the declaration that the appealing providers were not entitled to no-fault benefits. The reason for requesting EUOs was essential to justify opposition and was exclusively within the insurer's knowledge and control. Further discovery into claim handling, including whether the EUOs were timely and properly requested, was also essential.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50807(U)
Insurer prevailed
The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the assignor's nonappearance violated a condition precedent to coverage. That showing entitled the insurer to summary judgment dismissing the provider's assigned no-fault claims. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion. It declined to consider the provider's remaining argument because it was raised for the first time on appeal.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50799(U)
Insurer prevailed
The provider's unopposed summary judgment motion failed because its papers did not establish an untimely or legally deficient denial. In an action for assigned no-fault benefits, the provider failed to show either that the insurer had not paid or denied the claim 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 Appellate Term, Second Department, rejected the provider's argument that it had established entitlement to summary judgment and affirmed Civil Court, Kings County's denial of the motion.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50800(U)
Provider prevailed
The insurer's summary judgment cross motion was denied because a factual issue remained about the provider's verification response. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, citing that factual issue and the insurer's failure to articulate sufficient grounds to strike implicit CPLR 3212 (g) findings favoring the provider. It gave no further explanation of either conclusion.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50802(U)
Insurer prevailed
The provider failed to establish that its claim was not timely denied or that a timely denial was legally deficient. The provider obtained summary judgment and a judgment for assigned no-fault benefits in Civil Court, Queens County. Under CPLR 5512 (a), the Appellate Term, Second Department, treated the insurer's appeal from the order as an appeal from the judgment. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the provider's failure to establish an untimely denial or a timely denial that was conclusory, vague or meritless defeated its prima facie showing. The court reversed the judgment, vacated the order and denied the provider's motion, but declined reverse summary judgment for the insurer.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50809(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and denials, as well as the assignor's failure to appear for the EUOs. The provider moved for summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's nonappearance. The Appellate Term, Second Department, rejected the provider's challenge to the insurer's proof. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the assignor's failure to attend the duly scheduled EUOs violated a condition precedent to coverage. The court affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50812(U)
Provider prevailed
The parties' summary judgment requests were denied because claim submission to the insurer remained a disputed factual issue. The Appellate Term, Second Department, modified the order by striking the reverse summary judgment granted to the insurer upon a search of the record and affirmed denial of the provider's motion. It identified a factual issue concerning submission without discussing the evidence.
Appellate Term, Second Department
May 19, 2015
2015 NY Slip Op 50814(U)
Provider prevailed
The parties' summary judgment motions were denied because factual issues remained about the provider's response to verification requests. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion to dismiss the action as premature and affirmed denial of the provider's motion. It identified a factual issue concerning whether the provider adequately responded, without discussing the evidence.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50786(U)
Split result
The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish its prima facie case. The insurer's affidavit did not sufficiently describe an office practice ensuring that the notices were properly addressed and mailed. It therefore did not prove nonappearance at duly scheduled IMEs. The provider's affidavit likewise failed to show that the claim was not timely denied or that a timely denial was conclusory, vague or without legal merit. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and affirmed the denial of the provider's motion.
Appellate Term, First Department
May 18, 2015
2015 NY Slip Op 50733(U)
Insurer prevailed
The insurer proved the assignor's IME nonappearance through sworn statements based on personal knowledge of office practices and policies. The scheduled physician's affirmation and the IME scheduler's employee affidavit supplied competent proof of nonappearance, and the insurer also established timely and proper mailing of notices to the assignor and counsel. Unlike the proof in Alrof, Inc. v Safeco Natl. Ins. Co., the affiants demonstrated personal knowledge of the relevant practices. The provider raised no factual issue about attendance, mailing or reasonableness of the notices. Under CPLR 5517 (b), the Appellate Term, First Department, treated the appeal as taken from the subsequent reargument order, reversed that order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50778(U)
Insurer prevailed
The insurer established that the workers' compensation fee schedule supported reducing the billed reimbursement using CPT code 20552. The provider challenged reduction of a $4,000 bill under CPT code 20553 to $645.90. The insurer's affidavit demonstrated proper application of Ground Rules 3 and 5 and use of CPT code 20552 to calculate payment. A potential alternative calculation was irrelevant because it was not used. The denial adequately identified the defense through a checked fee-schedule box and reference to an attached Explanation of Review. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the insurer and denial of the provider's cross motion.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50789(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. The insurer supported its summary judgment motion with 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. The affidavits sufficiently established the lack-of-coverage defense and entitlement to dismissal of the assigned no-fault benefits action. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50788(U)
Split result
The provider failed to establish its prima facie case, and the defendant failed to establish a timely denial. Under Insurance Law § 5106 (a), the provider's motion papers did not show either a failure to pay or deny within 30 days or a timely denial that was conclusory, vague or without legal merit. The defendant, in turn, did not establish timely denial under 11 NYCRR 65-3.8. The Appellate Term, Second Department, modified the order to deny the defendant's cross motion for summary judgment dismissing the complaint and affirmed the denial of the provider's motion.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50787(U)
Insurer prevailed
The insurer established that the assignor failed to appear for duly scheduled EUOs, defeating the provider's benefits claim. The provider's sole challenge to the insurer's cross motion concerned proof of nonappearance. The supporting papers established that failure, and under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance is a condition precedent to policy liability. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's motion; it did not reach the provider's asserted entitlement to summary judgment.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50785(U)
Insurer prevailed
The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground. The assignor's failure to appear breached a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., entitling the insurer to dismissal. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion. It did not reach the provider's challenge to proof of IME nonappearance and declined to consider another argument raised for the first time on appeal.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50781(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint was upheld based on timely mailing of IME notices and the denial. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion, citing mailing precedents. The provider's remaining arguments were rejected as meritless or declined because they were raised for the first time on appeal.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50775(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against the known vehicle owner before seeking payment from MVAIC. At a nonjury trial, a sworn notice of intention to make claim identified the vehicle that struck the assignor. Because the provider and that assignor knew the owner's identity, the provider had to exhaust remedies against the owner under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the judgment awarding payment for supplies furnished to that assignor and remitted for entry of judgment for MVAIC dismissing that portion of the complaint.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50774(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. Both the provider and its assignor knew the identity of the owner of the vehicle that had 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 order, insofar as appealed from, and granted MVAIC's cross motion for summary judgment dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50771(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. The provider sued for assigned no-fault benefits and obtained summary judgment while MVAIC's cross motion was denied. Failure to comply with Insurance Law § 5208 (a) and (c) meant the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to seeking payment from MVAIC was therefore unmet. The Appellate Term, Second Department, reversed the order, denied the provider's motion and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, First Department
May 18, 2015
2015 NY Slip Op 50738(U)
Provider prevailed
The insurer's own date-stamped claim forms established receipt and overdue payment of the providers' no-fault claims. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the providers partial summary judgment on the first through sixth causes of action under Insurance Law § 5106 (a), and denied the insurer's motion to compel discovery. The insurer waived assignment objections by failing to seek verification and could not assert excessive fees without establishing denials within 30 days. It failed to show that further discovery could raise a triable issue. Its speculative coverage-discovery argument was raised for the first time on appeal and was insufficient. The request to toll interest remained unreviewed because the insurer filed no cross appeal.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50772(U)
Provider prevailed
The insurer failed to prove IME nonappearance because the scheduled examiners' sworn statements did not demonstrate personal knowledge. The insurer sought dismissal of the third and fourth causes of action based on the assignor's alleged failure to attend IMEs. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny those branches of the insurer's cross motion. It affirmed denial of the provider's motion on the first, third and fourth causes because the provider had not shown absent or legally insufficient denials. Findings under CPLR 3212 (g) established submission of the claims and nonpayment within 30 days, but did not establish the missing denial element; those findings were not reviewed on appeal.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50773(U)
Insurer prevailed
A timely verification request tolls the insurer's time to pay or deny the entire claim, even when the claim bills services under separate codes. The provider's single claim form billed two types of services, and Civil Court, Queens County, accepted the insurer's verification defense for one code but denied dismissal for code 97810. The insurer demonstrated timely mailing of initial and follow-up verification requests and nonreceipt of the requested verification. Because the claim need not be paid or denied until all demanded verification was supplied, the action was premature as to the remaining portion too. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion billed under code 97810.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50776(U)
Insurer prevailed
The insurer's affidavits describing its mailing practices raised a triable issue in response to the provider's proof of untimely denials. The provider's owner's affidavit established prima facie that the claim forms had been mailed and received and that the insurer failed to pay or deny within the prescribed 30 days under Insurance Law § 5106 (a). In opposition, the insurer sufficiently described its standard mailing practices and procedures to establish timely mailing of the denial forms. That proof raised a factual issue preventing summary judgment. The Appellate Term, Second Department, affirmed the order of Civil Court, Kings County, denying the provider's motion.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50777(U)
Provider prevailed
The provider's third-party biller's testimony established its prima facie case despite the insurer's business-record-foundation objection. At a nonjury trial for assigned no-fault benefits, the biller was the sole witness, and the provider's claim forms were admitted into evidence. The insurer argued that the witness could not establish a foundation under CPLR 4518. Applying Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the Appellate Term, Second Department, found the testimony sufficient. Because the insurer offered no defense, the court affirmed the judgment for the provider entered by Civil Court, Kings County.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50780(U)
Insurer prevailed
The insurer established timely mailing of chiropractic IME notices and denials and the assignor's failure to attend the scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that failure violated a condition precedent to coverage and entitled the insurer to summary judgment dismissing the assigned no-fault claims. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion. It did not reach whether the insurer proved nonappearance at orthopedic IMEs or EUOs. The provider's remaining contentions either lacked merit or were raised for the first time on appeal and were not considered.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50782(U)
Provider prevailed
The insurer failed to prove timely mailing of EUO scheduling letters, defeating summary judgment based on the assignor's alleged nonappearance. Neither the claim representative's affidavit nor the retained attorney's affirmation established actual mailing or a standard office mailing practice. The provider also failed to establish prima facie entitlement to summary judgment: its papers showed neither failure to pay or deny within the 30-day period nor a timely denial that was conclusory, vague or meritless as a matter of law under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for dismissal and affirmed the denial of the provider's motion.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50783(U)
Provider prevailed
A no-fault action is premature when the provider has failed to respond to a request for verification. A claim need not be paid or denied until all demanded verification concerning it is supplied. In this action for assigned benefits, the insurer established timely mailing of initial and follow-up verification requests, but a factual issue remained as to whether the provider responded. The Appellate Term, Second Department, therefore concluded that neither party was entitled to summary judgment. It modified the order to deny the insurer's cross motion for dismissal and affirmed the denial of the provider's motion.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50784(U)
Split result
The provider obtained summary judgment on the fourth, fifth and tenth causes of action because the insurer failed to deny those claims timely. The provider established submission and nonpayment of those claims. The insurer's conclusory assertion that it had not received the fourth claim did not rebut the presumption of receipt, and the insurer admitted that claim was not timely denied. The fifth and tenth denials were also untimely. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the provider judgment on those three causes and deny the insurer's cross motion on the fifth and tenth. It upheld dismissal of the first through third and sixth through ninth causes, for which the insurer established timely mailing of denials.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50790(U)
Provider prevailed
The insurer failed to establish sufficient IME notice because the scheduling letters used a different name from the assignor's NF-2. The insurer cross-moved for summary judgment dismissing assigned no-fault claims based on the assignor's failure to attend IMEs. Civil Court, Queens County, denied both parties' motions and made CPLR 3212 (g) findings in both parties' favor. The Appellate Term, Second Department, held that the letters could not establish adequate notice as a matter of law because of the name discrepancy. The insurer also failed to articulate a sufficient basis to strike the findings favoring the provider. The court affirmed the order, insofar as appealed from.
Appellate Term, Second Department
May 18, 2015
2015 NY Slip Op 50791(U)
Provider prevailed
The insurer's motion for summary judgment based on lack of medical necessity was denied because the record presented a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's action for assigned no-fault benefits. It stated that a factual issue remained concerning the medical necessity of the supplies provided, without discussing the evidence.
Appellate Term, First Department
May 13, 2015
2015 NY Slip Op 50719(U)
Provider prevailed
The insurer failed to prove that the provider's bills were received beyond the 45-day claim-submission limit. Seeking summary judgment under 11 NYCRR 65-1.1 (d), the insurer relied on its claims adjuster's affidavit. The affidavit did not describe regular practices for retrieving, opening and indexing mail or maintaining existing claim files, and therefore did not establish untimely receipt. Because the insurer failed to meet its initial burden, the motion had to be denied regardless of the sufficiency of the provider's opposition. The Appellate Term, First Department, affirmed the order denying summary judgment dismissing the complaint and reached no other issues.
Appellate Term, First Department
May 13, 2015
2015 NY Slip Op 50718(U)
Insurer prevailed
MVAIC need not notify the provider of an IME scheduled for the assignor. Under 11 NYCRR 65-1.1, 65-3.5 (b) and (c), and 65-3.6 (b), the lack of notice to the provider did not justify excluding the IME report. MVAIC timely denied the claims based on a sworn chiropractor's report giving a factual basis and medical rationale that the injuries had resolved and further chiropractic treatment was unnecessary. The provider's attorney affirmation, without medical evidence or other competent proof, raised no triable issue. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted MVAIC summary judgment and dismissed the complaint.
Appellate Term, Second Department
May 6, 2015
2015 NY Slip Op 50756(U)
Provider prevailed
The insurer failed to establish that the assignor materially misrepresented residence to obtain insurance at reduced premiums. The insurer sought summary judgment dismissing assigned no-fault claims on fraudulent-procurement grounds, asserting that the assignor supplied a Dutchess County address while actually residing in Queens County. Although the certified EUO transcript was admissible, the testimony did not eliminate factual issues concerning residence at the pertinent time. The investigator's report relied on inadmissible hearsay and did not establish nonresidence at the stated address. Because the insurer failed to make a prima facie showing, dismissal was properly denied regardless of the opposing papers' sufficiency. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, Second Department
May 6, 2015
2015 NY Slip Op 50757(U)
Insurer prevailed
The provider failed to eliminate a factual issue about whether it had served responses to the insurer's verification requests. Civil Court, Kings County, found timely mailing of requests for additional verification and identified service of responses as the only trial issue. The insurer submitted proof that it had not received the requested verification, while the provider submitted an affidavit asserting that responsive material had been sent. Considering both submissions, the Appellate Term, Second Department, concluded that the provider had not shown the absence of a material factual dispute. It affirmed the order, insofar as appealed from, denying the provider's summary judgment motion.
Appellate Term, Second Department
May 5, 2015
2015 NY Slip Op 25164
Insurer prevailed
The insurer did not waive its jurisdictional defense by failing to move within 60 days when no action had been commenced. The provider's attempted mail service under CPLR 312-a produced no signed acknowledgment, and no alternative service was attempted. Under CCA former 400 and former 410 (b), no action was commenced in 2004. The insurer's answer preserved lack of personal jurisdiction and did not constitute submission to jurisdiction under CPLR 320 (b). The CPLR 3211 (e) waiver period therefore did not apply. After filing in 2010, the provider also failed to serve pleadings bearing the new index number. The Appellate Term, Second Department, treated the parties as having charted a summary judgment course, reversed the amended order, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50681(U)
Split result
The insurer's reliance on an IME of someone other than the assignor failed to establish lack of medical necessity. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment except on the claims challenged through that IME. Three other claims were dismissed because the insurer proved full payment under the workers' compensation fee schedule. Six remaining claims were dismissed because the claims representative's affidavit sufficiently established nonreceipt of the claim forms, and the provider offered no sworn statement from someone with personal knowledge of their submission. The denial of summary judgment remained in effect only for the claims challenged through the wrong patient's IME.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50685(U)
Insurer prevailed
An insurer need not set forth objective standards for requesting an EUO under No-Fault Regulation 68. District Court, Nassau County, denied dismissal because the insurer had not shown objective justification for the assignor's EUOs. The insurer established mailing of scheduling letters through counsel's office practices, nonappearance through an attorney's affirmation and a certified follow-up EUO transcript, and timely mailing of denials. The provider's counsel's affirmation raised no factual issue. EUO attendance was a condition precedent to liability, and the provider's objections would not be heard because the provider neither alleged nor established any response by it or the assignor. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50675(U)
Split result
The provider was denied summary judgment because factual issues remained over denial timeliness and whether services were rendered. For the first and eighth causes of action, letters labeled verification or delay requests did not establish tolling under 11 NYCRR 65-3.8 (a). An EUO scheduling letter and proof of attendance nevertheless raised an issue concerning tolling and the denials mailed more than 30 days after receipt. The remaining claims were timely denied. The certified EUO transcript was admissible, but whether services were rendered remained disputed. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion and denied it, leaving the denial of the defendant's cross motion intact.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50673(U)
Insurer prevailed
A conditional discovery stipulation becomes absolute when a party fails to comply sufficiently and timely. The provider agreed in a so-ordered stipulation to serve verified discovery responses within 80 days or be precluded from offering that evidence. It admitted late service and asserted law office failure and lack of prejudice. To avoid preclusion, it had to establish both a reasonable excuse and a meritorious cause of action, but its opposition supplied insufficient facts for an excuse and made no showing of merit. Because preclusion prevented proof of its prima facie case, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion under CPLR 3126 to strike the complaint and dismiss the action.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50674(U)
Insurer prevailed
The provider's complaint was dismissed under CPLR 3216 because it ignored a 90-day demand and offered neither an excuse nor proof of merit. A Civil Court plaintiff receiving such a demand must file a notice of trial under CPLR 3216 (c) or timely seek vacatur or an extension under CPLR 2004. The provider did neither. Although CPLR 3216 (e) permits discretion and exceptional denial of dismissal even with an unjustifiable excuse, following Baczkowski v Collins Constr. Co., the provider made no attempt to show an excuse or a meritorious cause of action. The Appellate Term, Second Department, reversed the order and granted the insurer's dismissal motion.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50680(U)
Provider prevailed
The provider's doctor's affirmation raised a triable issue of medical necessity in response to the insurer's peer review report. The insurer moved for summary judgment dismissing assigned no-fault claims and established timely and proper mailing of its medical-necessity denials. Its affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. The opposing doctor's affirmation nevertheless raised a factual dispute as to whether the services were medically necessary, precluding dismissal on summary judgment. The Appellate Term, Second Department, affirmed the order of District Court, Nassau County, denying the insurer's motion.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50698(U)
Insurer prevailed
The insurer's orthopedic IME report established lack of medical necessity, and the provider offered no medical evidence to rebut it. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusions. The provider's principal submitted an affidavit but did not indicate having examined the assignor or otherwise rebut the IME findings with medical evidence. The provider therefore raised no triable issue. It also did not challenge District Court, Nassau County's 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
May 1, 2015
2015 NY Slip Op 50677(U)
Split result
A professional service corporation organized in another state may practice in New York if it meets the statutory requirements. MVAIC sought dismissal under 11 NYCRR 65-3.16 (a) (12) solely because the provider was incorporated in New Jersey. Business Corporation Law §§ 1525 (d) and 1529 permit foreign professional corporations to practice subject to statutory conditions. MVAIC did not prove noncompliance or violations rendering the provider ineligible under Mallela. The provider also failed to establish an untimely denial or a timely denial without legal merit under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny MVAIC's summary judgment motion and affirmed the denial of the provider's cross motion.
Appellate Term, Second Department
May 1, 2015
2015 NY Slip Op 50679(U)
An arbitration rule expressly limiting preclusion prevents a loss-transfer liability ruling from barring a separate suit between different parties. After paying no-fault benefits, the subrogating insurer unsuccessfully sought loss transfer from the vehicle defendants' insurer under Insurance Law § 5105; the arbitrator found negligence unproven. The vehicle defendants then obtained summary judgment dismissing the insurer's property-damage and loss-of-use subrogation action on collateral-estoppel grounds. Arbitration Forums' rule limited liability decisions to the submitted controversy between the same parties. The Appellate Term, Second Department, enforced that clear restriction. Treating the appeal as taken from the judgment under CPLR 5501 (c), it reversed the judgment, vacated the order and denied the defendants' motion.
