Appellate Term, Second Department
Aug 26, 2015
2015 NY Slip Op 51271(U)
Provider prevailed
A provider need not lay a business-record foundation for its billing documents to establish prima facie entitlement to summary judgment. The insurer challenged partial summary judgment for the providers because their billing manager's affidavit allegedly failed to establish that the annexed documents were admissible. Relying on Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the Appellate Term, Second Department, rejected that argument and affirmed the order granting the providers' cross motion. The court also recalled and vacated its prior decision and order; the insurer's remaining contention lacked merit.
Appellate Term, Second Department
Aug 26, 2015
2015 NY Slip Op 51272(U)
Provider prevailed
The provider established entitlement to payment where the insurer neither paid nor denied within 30 days and failed to prove tolling. The Appellate Term, Second Department, affirmed the judgment entered upon summary judgment for the provider and denial of the insurer's cross motion. The provider's affidavit established its prima facie case under Insurance Law § 5106 (a) and Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The insurer admitted receipt of the claims, and nonpayment and nondenial within 30 days were undisputed. Without proof of tolling or timely denial, the insurer raised no triable issue. The appeal was deemed taken from the judgment under CPLR 5501 (c); the court recalled and vacated its prior decision and order.
Appellate Term, Second Department
Aug 18, 2015
2015 NY Slip Op 51294(U)
Insurer prevailed
The provider's new deposition evidence failed to defeat the insurer's showing that it had not issued the policy covering the accident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering upon renewal to summary judgment dismissing the complaint. Although labeled reargument, the provider's motion offered new facts and was treated as renewal under CPLR 2221 (e) (2). Manager affidavits established that another insurer issued the policy. The provider's deposition transcript was inadmissible under CPLR 3116 because the witness had not sworn to the testimony and the transcript was uncertified. Even considering it, testimony about a parent company's control of corporate policy did not supply sufficient evidence to defeat the lack-of-coverage defense.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51235(U)
Insurer prevailed
The insurer established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services. The provider sought summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The insurer's affidavits sufficiently proved timely mailing of the denial forms, and its certified professional coder's affidavit established that it properly applied the fee schedule to determine reimbursement. The provider failed to raise a triable issue of fact. The Appellate Term, Second Department, 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
Aug 6, 2015
2015 NY Slip Op 51239(U)
Split result
The insurer failed to prove effective cancellation against an assignor outside the named insured's household because timely DMV filing was unproved. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed denial of the provider's motion. The insurer did not establish filing of its cancellation notice with the DMV within 30 days of cancellation's effective date, as Vehicle and Traffic Law § 313 (2) (a) requires. It therefore failed to establish cancellation against the assignor under Vehicle and Traffic Law § 313 (3). The provider likewise failed to establish an untimely denial or a timely denial that was conclusory, vague, or legally meritless under Insurance Law § 5106 (a).
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51242(U)
Provider prevailed
A factual dispute over the address used for IME scheduling letters defeated the insurer's cross motion for summary judgment. The provider sought assigned first-party no-fault benefits, and the insurer relied on the assignor's alleged IME nonappearance. The Civil Court denied both summary judgment motions, made implicit findings for the provider under CPLR 3212 (g), and limited trial to proper mailing of the IME letters and nonappearance if the IMEs were duly scheduled. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The insurer failed to articulate a sufficient basis to strike the findings favoring the provider, and the record raised a triable issue concerning the propriety of the address used for the scheduling letters.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51238(U)
Provider prevailed
The insurer failed to establish timely mailing of the IME scheduling letters and was denied summary judgment. The insurer sought dismissal of the provider's action for assigned first-party no-fault benefits based on the assignor's failure to appear for scheduled IMEs. Because the motion papers did not establish timely mailing of the scheduling letters, the insurer failed to demonstrate that the IMEs were properly scheduled. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51236(U)
Split result
The insurer failed to prove EUO nonappearance because its papers did not establish counsel's presence at the designated location. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion dismissing the complaint and otherwise affirmed denial of the provider's cross motion. Counsel asserted that the assignor had failed to appear, but the motion papers did not unequivocally demonstrate counsel's presence on either scheduled date at the court reporting company's office where the assignor was directed to attend. The insurer therefore failed to establish its nonappearance defense. The provider also failed to show that the assignor attended either EUO, so its cross motion remained denied.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51237(U)
Provider prevailed
The insurer's summary judgment motion was denied for lack of proof of timely denial mailing and fees exceeding the applicable schedule. The Appellate Term, Second Department, affirmed denial of dismissal of both providers' claims. For one provider's bills, timely and proper denial mailing was unproved; for the other's, the insurer did not establish charges exceeding the workers' compensation fee schedule, under the cited precedents.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51240(U)
Split result
Conflicting proof of claim receipt and verification responses precluded summary judgment for either party. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed denial of the provider's motion. For the second cause of action, the provider's billing manager established mailing through standard office procedures, but the insurer's no-fault examiner raised a triable issue concerning receipt and whether the time to pay or deny had begun. For the remaining causes of action, the insurer made a prima facie showing of unanswered initial and follow-up verification requests. The provider's opposition nevertheless raised a factual issue as to whether it had responded.
Appellate Term, Second Department
Aug 6, 2015
2015 NY Slip Op 51241(U)
Insurer prevailed
The insurer's affidavits established timely IME notices and denials and the assignor's failure to appear for the scheduled IMEs. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the providers' complaint. An employee of the scheduling company established timely mailing through standard office practices, and the healthcare professional scheduled to perform the IMEs established nonappearance. A claims representative's affidavit and affidavits of service for each denial established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., attendance at a duly scheduled IME is a condition precedent to policy liability.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51220(U)
Provider prevailed
The insurer's EUO requests were untimely because they followed receipt of the bills by more than 15 business days and 30 calendar days. Under 11 NYCRR 65-3.5 (b), additional verification must be requested within 15 business days; late requests reduce the payment or denial period under 11 NYCRR 65-3.8 (l). A toll under 11 NYCRR 65-3.8 (a) would not permit otherwise untimely verification requests. The EUO letters were therefore nullities as to these bills, regardless of their timeliness for other claims. The insurer also failed to establish any toll and received but did not timely deny the bills. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion and grant of the provider's cross motion.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51219(U)
Insurer prevailed
The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved. 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 insurer adequately proved its standard mailing procedures for denials. The provider's objection to an apartment number in the IME scheduling letters was raised for the first time on appeal and was not considered. For the remaining bills, the insurer proved full payment under the workers' compensation fee schedule for CPT codes 97810 and 97811. The provider's owner acknowledged that only the greater of the treatment or office-visit fee was payable; payment for treatment therefore defeated the additional initial-evaluation charge under code 99202.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51223(U)
Insurer prevailed
The provider's accident notice was mailed one day late, and no reasonable justification excused the delay. 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. Under 11 NYCRR 65-2.4 (a) and (b), written accident notice was required within 30 days absent clear and reasonable justification. Although the provider's affiant claimed mailing on July 6, the affidavit described delivery directly to a postal clerk for postage and mailing, and both postage and postmark bore July 7. The insurer established timely mailing of denials inviting justification and proved none was supplied. The court rejected the contention that the one-day delay was de minimis and should be excused.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51212(U)
Insurer prevailed
The insurer established timely EUO notices, the assignor's nonappearance at duly scheduled EUOs and timely denials on that ground. The failure to appear breached a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The insurer was therefore entitled to dismissal of the provider's assigned no-fault benefits claims. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment 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
Aug 5, 2015
2015 NY Slip Op 51213(U)
Provider prevailed
The insurer's medical necessity motion was denied because requested discovery was not supplied in time for the provider to oppose it. The provider sought assigned no-fault benefits and opposed summary judgment on its first cause of action under CPLR 3212 (f), while cross-moving to compel disclosure under CPLR 3124. It demonstrated that it had requested but not timely received the peer review report, the medical documentation received by the insurer, and the documentation supplied to the peer reviewer. The insurer annexed discovery responses to its reply, rendering the cross motion moot but not establishing entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying dismissal of the first cause of action.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51216(U)
Split result
The insurer failed to establish policy cancellation because it offered no proof that the cancellation letter was mailed to its insured. The provider's summary judgment motion also failed because its papers showed neither an untimely denial nor a timely denial that was conclusory, vague, or meritless as a matter of law under Insurance Law § 5106 (a). Although the insurer supplied a cancellation letter, it did not prove mailing as required by Vehicle and Traffic Law § 313 (1) (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both parties' summary judgment motions denied.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51226(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity, and the provider submitted no medical evidence to rebut it. In an action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint. Its evidence established timely mailing of the denial forms, and its affirmed peer review report supplied a factual basis and medical rationale for finding the services unnecessary. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51233(U)
Insurer prevailed
The provider failed to show that it exhausted remedies against the known vehicle owner before seeking payment 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. Under Hauswirth v American Home Assur. Co., the provider, as assignee, was required to exhaust remedies against that owner before seeking relief from MVAIC. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51232(U)
Insurer prevailed
MVAIC established that the provider's action was commenced after the three-year statute of limitations expired. The Appellate Term, Second Department, reversed the order and granted the branch of MVAIC's motion seeking summary judgment dismissing the complaint on limitations grounds. A defendant seeking dismissal on that ground bears the initial burden of showing that the time to sue has expired. MVAIC met that burden, and the provider failed to raise a factual issue concerning timeliness. The court reached no other issue, including MVAIC's alternative request to dismiss for lack of particularity.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51215(U)
Insurer prevailed
The insurer's cross motion for summary judgment on its IME-nonappearance defense was granted, and the provider's motion was denied. The Appellate Term, Second Department, affirmed because the insurer's affidavits sufficiently demonstrated timely mailing of the denial and IME scheduling letters; it rejected the provider's remaining contentions.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51208(U)
Insurer prevailed
The insurer's affidavits established timely mailing of IME notices and the denial, as well as the assignor's IME nonappearances. The president of the retained scheduling company described standard mailing practices proving timely notice, the healthcare professionals who were to conduct the IMEs established nonappearance, and the claims examiner established timely mailing of the denial through standard office procedures. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., an assignor's appearance at an IME is a condition precedent to the insurer's policy liability. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the provider's action for assigned no-fault benefits.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51209(U)
Split result
The insurer failed to rebut the provider's proof of untimely denials for two claims, while receipt timing remained disputed for a third. The provider alleged mailing three bills on March 5, 2010. For the first two claims, the insurer relied on copies received October 8 marked as resubmissions, without denying earlier receipt or explaining resubmission. For the third, the asserted April 5 receipt date and proof of mailing a month earlier left receipt timing disputed. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the first two causes of action and deny the insurer's cross motion in full; it otherwise affirmed, leaving the provider's third-claim motion and separate protective-order motion denied.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51211(U)
Provider prevailed
The insurer's denials were untimely because they exceeded 30 days after receipt of the bills or completion of the EUO, whichever was later. The bills were received between January 7 and March 12, 2009; the assignor completed an EUO on March 3, and no other verification remained outstanding. Under 11 NYCRR 65-3.8 (a) (1), EUO verification was received on the examination date. The May 1 denials therefore missed the applicable deadlines. The provider's affidavit established prima facie entitlement under Insurance Law § 5106 (a). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment and granting the provider summary judgment for services rendered between December 2008 and February 2009.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51224(U)
Insurer prevailed
The insurer established timely mailing of its denial and the assignor's failure to appear for duly scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer cross-moved for summary judgment based on the IME nonappearances. Its evidence sufficiently demonstrated both timely denial and nonappearance. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., attendance at a duly scheduled IME is a condition precedent to the insurer's policy liability. 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; it did not reach the provider's remaining contentions.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51225(U)
Insurer prevailed
The provider's challenges to the insurer's summary judgment motion were unpreserved because they were first raised on appeal. The provider appealed an order granting the insurer summary judgment dismissing its assigned no-fault benefits action and denying its own cross motion. Relying on Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen, the Appellate Term, Second Department, declined to consider the newly raised arguments and affirmed the order in the insurer's favor.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51229(U)
Insurer prevailed
The insurer's unrebutted mailing evidence established a timely denial based on the provider's failure to appear for EUOs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment. The insurer's investigator described standard mailing practices, and a certified-mail receipt bearing the claim number showed the provider signed for the envelope containing the denial. The provider submitted no opposing affidavit and did not challenge the Civil 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 dismissing the complaint.
Appellate Term, Second Department
Aug 5, 2015
2015 NY Slip Op 51231(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims on medical necessity grounds was denied. The Appellate Term, Second Department, affirmed the order in this action for assigned no-fault benefits. It found triable issues of fact regarding the insurer's lack of medical necessity defense upon reviewing the record and relied on Zuckerman v City of New York.
Trial court, Second Department
Aug 17, 2015
2015 NY Slip Op 51189(U)
Split result
The insurer established lack of medical necessity after its IME cutoff, but failed to substantiate reductions of five claims under the fee schedule. The District Court, Nassau County, resolved the parties' summary judgment motions by dismissing all claims with prejudice except those five, which required trial. IME reports supported cessation of benefits, and the provider's owner's affidavit did not refute their conclusions; the affidavit was not disqualified merely because its author was a principal. A separate claim failed the 45-day submission requirement under 11 NYCRR 65-1.1. For the five reduced claims, the insurer's claims examiner merely asserted that reductions reflected the applicable fee schedule, which did not establish the defense. The provider disputed those reductions.
Trial court, Second Department
Aug 12, 2015
2015 NY Slip Op 25285
Provider prevailed
A provider may establish claim submission and receipt through admissions in denials annexed to the defendant's interrogatory response. The Civil Court, Kings County, read Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. to permit any admissible evidence of mailing and receipt, without proof of the claim's merits. Interrogatory answers were admissible under the admissions exception to hearsay. A denial identified receipt of the claim and was issued more than 30 days after the last missed IME, contrary to Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The defendant presented no trial witness or challenge to the claim forms or denial timing. The court granted the provider summary judgment but denied the branch based on unsubmitted notices to admit.
