Court of Appeals
Jun 10, 2015
2015 NY Slip Op 04787
Provider prevailed
A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms. The Court of Appeals affirmed the order, insofar as appealed from, awarding the provider summary judgment on seven claims the insurer neither paid nor denied within 30 days. Under Insurance Law § 5106 (a), 11 NYCRR 65-3.8 (a) (1), and CPLR 3212 (b), admissible proof remained necessary despite preclusion of the insurer's defenses. The billing company's affidavit established creation, reliance, and mailing procedures sufficient under CPLR 4518 (a). One timely denied claim was outside the appeal. Two judges dissented, requiring admissible proof of entitlement to benefits beyond billing, receipt, and nonpayment.
Appellate Division, Fourth Department
Jun 19, 2015
2015 NY Slip Op 05378
Split result
The insurer's default motion was granted on appeal only against the corporate provider, given deficient service on the other two defendants. In this no-fault declaratory action, the insurer proved breach of the policy's timely accident-notice condition and defaults, satisfying those elements of CPLR 3215 (f). Delivery to the corporation's authorized agent satisfied CPLR 311 (a) (1). The injured claimant's nail-and-mail service lacked due diligence under CPLR 308 (4), and service on the LLC provider lacked strict compliance with Limited Liability Company Law § 304 (e)'s filing requirements. The Appellate Division, Fourth Department, modified the order and judgment to grant a default against the corporate provider and otherwise affirmed, leaving denial intact for the claimant and LLC provider.
Appellate Division, Second Department
Jun 10, 2015
2015 NY Slip Op 04815
Insurer prevailed
A demand to change venue does not satisfy a stipulation requiring a defendant to answer or move by a specified deadline. The insurers sought default judgments in an action for fraud damages and a declaration concerning no-fault claims. The respondents served a venue demand by the stipulated deadline but moved afterward. Under CPLR 3215 (f), they failed to negate their default or establish a reasonable excuse and potentially meritorious defense; misreading the clear stipulation was no excuse. The Appellate Division, Second Department, reversed the order, insofar as appealed from, granted default relief, and remitted for an inquest and judgment declaring no payment obligation for Avenue I Medical, P.C.'s pending and future claims; the motion concerning another defendant remained undecided.
Appellate Term, First Department
Jun 25, 2015
2015 NY Slip Op 50953(U)
Insurer prevailed
The insurer's examining professionals' affidavits established the assignor's IME nonappearances through personal knowledge of office practices. The insurer also proved timely and proper mailing of the IME notices, establishing prima facie entitlement to dismissal of the providers' no-fault action. The scheduled physician and chiropractor/acupuncturist described their personal knowledge of office practices and policies when an assignor failed to appear. The providers did not specifically deny nonappearance or raise a triable issue concerning it, mailing, or the notices' reasonableness. The Appellate Term, First Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint; it reached no other issue.
Appellate Term, First Department
Jun 17, 2015
2015 NY Slip Op 50900(U)
Insurer prevailed
The physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary. The insurer established timely denials supported by an orthopedic IME report and follow-up report supplying a factual basis and medical rationale. The treating physical therapist's affidavit did not meaningfully address contrary findings, including normal cervical and lumbar range-of-motion testing. The Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the physical therapy claims at issue; the appeal concerned only those claims. The insurer's remaining arguments were not considered because they were first raised in its reply brief.
Appellate Term, Second Department
Jun 16, 2015
2015 NY Slip Op 25203
Split result
A declaratory judgment order granting a default motion without declaring the parties' rights does not preclude a no-fault action. The insurer relied on a Supreme Court order granting its unopposed CPLR 3215 motion and directing settlement of judgment on notice. It did not demonstrate that judgment had been settled, so the order was not a conclusive final determination. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion, while affirming denial of the provider's motion because its affidavit did not establish untimely denials or timely denials lacking legal merit. The declaratory action apparently covered only one of four claims; the court could not reach the provider's abandonment argument under 22 NYCRR 202.48 (a) and (b).
Appellate Term, Second Department
Jun 16, 2015
2015 NY Slip Op 50914(U)
Split result
The insurer proved lack of medical necessity for two claims but failed to establish its fee schedule defense for the remaining claims. A sworn IME report supplied a factual basis and medical rationale, and the provider offered no medical rebuttal. Untimely denials precluded the fee schedule defense to three claims. For the other allegedly paid claims, the insurer failed to show reimbursement equaled or exceeded the schedule rate for chiropractors performing acupuncture. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss only the two medical-necessity claims. It affirmed denial of summary judgment on the remaining claims and the insurer's overpayment-offset counterclaim, assuming without deciding that the counterclaim stated a viable cause of action.
Appellate Term, First Department
Jun 12, 2015
2015 NY Slip Op 50895(U)
Split result
The insurer's IME report established that further acupuncture was unnecessary, and the provider's medical report did not address acupuncture. The Appellate Term, First Department, modified the order, insofar as appealed from, to grant the insurer partial summary judgment dismissing the acupuncture portion of the claims. The examining acupuncturist supplied a sufficient factual basis and medical rationale, while the provider's attorney affirmation and doctor's report raised no triable issue concerning those services. The matter was remanded to determine the amount attributable to acupuncture because the insurer's motion papers did not establish it. Denial of summary judgment on the remaining claims was affirmed because conflicting expert opinions raised a triable issue of medical necessity.
Appellate Term, Second Department
Jun 11, 2015
2015 NY Slip Op 50909(U)
Insurer prevailed
The provider failed to offer a reasonable excuse for defaulting in opposition to the insurer's summary judgment motion. Under CPLR 5015 (a), vacatur required both a reasonable excuse and a meritorious opposition. The provider may have shown that the insurer's motion was untimely under CPLR 3212 (a), supplying a meritorious opposition, but its conclusory, unsubstantiated assertions of law office failure did not excuse the default. Attorney neglect was insufficient, and the provider also failed to demonstrate a meritorious cause of action. The Appellate Term, Second Department, affirmed the denial of vacatur, leaving intact the dismissal of three claims on the insurer's unopposed motion.
Appellate Term, Second Department
Jun 11, 2015
2015 NY Slip Op 50906(U)
Insurer prevailed
The provider's benefits action was barred by res judicata under an unvacated default declaratory order denying no-fault coverage. After the benefits action began, the insurer obtained an order in Supreme Court, Bronx County, granting a default judgment against the provider and assignor in a coverage declaration action concerning the accident. Following Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., a benefits judgment would impair rights established by that order, which was conclusive despite entry on default. 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's remaining contentions lacked merit or were unpreserved.
Trial court, First Department
Jun 22, 2015
2015 NY Slip Op 50936(U)
Provider prevailed
⚠ Reversed by Matter of Global Liberty Ins. Co. v Professional Chiropractic Care, P.C. (2016
NY Slip Op 04156)
A rational master arbitration award is not subject to judicial vacatur for mere errors of substantive law. The Supreme Court, Bronx County, denied the insurer's petition under CPLR 7511 (b) and entered judgment for the provider. The master arbitrator had reversed an award dismissing claims for IME nonappearance because the insurer's denial did not identify that ground with sufficient specificity. The denial undisputedly gave an incorrect date for an allegedly missed IME and EUO, supplying a rational basis for the reversal under General Acc. Ins. Group v Cirucci. The insurer's reliance on Unitrin asserted legal error rather than irrationality. Review for legal error under 11 NYCRR 65-4.10 (a) (4) governs master arbitration, not judicial review.
Trial court, Second Department
Jun 18, 2015
2015 NY Slip Op 50919(U)
Insurer prevailed
An insurer's licensing-ineligibility defense requires preponderance proof rather than clear and convincing proof of fraud. The District Court, Suffolk County, denied the provider's CPLR 7511 petition and confirmed the master arbitrator's award sustaining denial of benefits. Under 11 NYCRR 65-3.16 (a) (12), the defense concerns eligibility based on professional ownership and control, rather than common-law fraud. The record supported the arbitrator's finding of ineligibility, and the provider established no ground for vacatur. The master arbitrator's review of EUO nonappearance relied on findings in the original award and did not constitute de novo fact-finding; the licensing defense independently supported the entire denial. The provider withdrew its collateral-estoppel argument.
Trial court, Second Department
Jun 1, 2015
2015 NY Slip Op 25199
Insurer prevailed
MVAIC's requests for qualification documents are not verification requests requiring notice to the assignor under the no-fault verification regulations. At trial, the parties disputed whether MVAIC had to request the notice-of-intention form directly from the assignor rather than solely from the provider. The assignor never submitted the original notarized form required by Insurance Law § 5208 and therefore was not covered under Insurance Law § 5221 (b) (2). The provider, standing in the assignor's shoes, failed to establish its prima facie case and bore responsibility for securing compliance after repeated notices. The Civil Court, Kings County, rejected reliance on 11 NYCRR 65-3.5 (a) and 65-3.6 (b) and dismissed the complaint in MVAIC's favor.
