Appellate Division, First Department
Sep 15, 2015
2015 NY Slip Op 06761
Provider prevailed
An insurer seeking summary judgment on an IME no-show must prove compliance with the 30-day period in 11 NYCRR 65-3.5 (d). Despite proof of mailing and nonappearance, the insurer submitted no evidence of when it received the prescribed verification forms. The Appellate Division, First Department, affirmed the order, insofar as appealed from, denying summary judgment declaring noncoverage against the provider. The majority treated the newly raised scheduling issue as a reviewable question of law concerning the insurer's prima facie burden and stated that new evidence in reply could not cure the deficiency. One justice dissented on preservation and alternatively favored relief for later services; the majority declined to consider that alternative because the insurer had not briefed it.
Appellate Division, First Department
Sep 15, 2015
2015 NY Slip Op 06763
Provider prevailed
The insurer failed to establish that it requested the assignor's EUO within the regulatory time frame. In a declaratory judgment action, the insurer sought summary judgment denying coverage for the accident because the assignor failed to appear for scheduled EUOs. The answering provider assignees challenged whether the request complied with 11 NYCRR 65-3.5 (b), and the insurer supplied no evidence on that issue in reply. Although failure to attend a properly noticed EUO breaches a condition precedent to coverage, the Appellate Division, First Department, affirmed the order, insofar as appealed from, denying summary judgment against the answering providers.
Appellate Division, First Department
Sep 15, 2015
2015 NY Slip Op 06759
Provider prevailed
The insurer failed to establish that the assignor's IMEs were scheduled within the 30-day period required by 11 NYCRR 65-3.5 (d). The insurer sought a declaration of noncoverage based on the assignor's IME nonappearance. Although it proved proper mailing of the scheduling notices and nonappearance, it did not show compliance with the regulatory scheduling period, as required for its prima facie summary judgment showing under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC. The Appellate Division, First Department, reversed the order, insofar as appealed from, granting summary judgment against the provider and vacated the declaration denying coverage.
Appellate Division, First Department
Sep 15, 2015
2015 NY Slip Op 06762
Provider prevailed
The insurer failed to show that the assignor's IMEs complied with the 30-day scheduling period under 11 NYCRR 65-3.5 (d). Although the insurer proved proper mailing of IME notices and nonappearance, it did not establish compliant scheduling. The Appellate Division, First Department, reversed the order and judgment, insofar as appealed from, denied summary judgment against the provider, and vacated the declaration that the provider was not entitled to benefits. The majority reached the issue despite its first being raised on appeal, for the reasons stated in the companion American Tr. Ins. Co. v Longevity Med. Supply, Inc., decided the same day; one justice dissented because the issue was unpreserved.
Appellate Term, Second Department
Sep 30, 2015
2015 NY Slip Op 51449(U)
Insurer prevailed
The insurer cured an unsigned peer review report by submitting an identical signed report in reply, without prejudice to the provider. The Appellate Term, Second Department, reversed the order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion. The insurer established timely mailing of denials based on lack of medical necessity and submitted an affirmed IME report and two affirmed peer review reports supplying a factual basis and medical rationale for that defense. The missing signature in one original peer review report was a defect in form, properly and timely remedied in reply. The provider did not rebut the insurer's prima facie showing that the services were medically unnecessary.
Appellate Term, Second Department
Sep 30, 2015
2015 NY Slip Op 51451(U)
Split result
An unanswered notice to admit does not establish EUO nonappearance when the requested admissions go to the heart of the controversy. The Appellate Term, Second Department, modified the order granting the insurer summary judgment. The insurer relied solely on the provider's failure to answer a notice to admit under CPLR 3123 (a) to prove nonappearance. Because a notice to admit addresses matters not disputed at trial rather than ultimate conclusions, these improper requests could not establish the defense. Summary judgment dismissing the first, second, and fifth causes of action was denied. The third, fourth, and sixth causes of action were marked discontinued with prejudice pursuant to an unchallenged stipulation, treating the relevant motion branches as an application for that relief.
Appellate Term, First Department
Sep 29, 2015
2015 NY Slip Op 51381(U)
Insurer prevailed
The insurer established the assignor's IME nonappearance through the scheduled physician's affirmation and the scheduler employee's affidavit. Those submissions demonstrated personal knowledge of repeated nonappearance and described office practices for missed IMEs. The insurer established timely, proper mailing, and the provider raised no triable issue concerning nonappearance, mailing, or reasonableness. Under American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, nonappearance permitted denial retroactive to the loss regardless of denial timeliness or different grounds initially asserted. The Appellate Term, First Department, reversed the order, granted the insurer summary judgment, and dismissed the complaint. The appeal was proper because Civil Court's merits review effectively granted reargument despite its purported denial.
Appellate Term, First Department
Sep 29, 2015
2015 NY Slip Op 51383(U)
Insurer prevailed
The provider's unsworn doctor's report failed to rebut IME findings that the assignor needed no further physical therapy. The Appellate Term, First Department, reversed the order, granted the insurer summary judgment, and dismissed the complaint. The insurer submitted IME reports from its examining orthopedic doctor and neurologist that supplied a sufficient factual basis and medical rationale for concluding that the assignor's injuries had resolved and further physical therapy was unnecessary. The provider submitted an unsworn doctor's report with its attorney's affirmation. Under Grasso v Angerami, that report lacked probative value and could not raise a triable issue.
Appellate Term, Second Department
Sep 28, 2015
2015 NY Slip Op 51446(U)
Insurer prevailed
The provider failed to show exhaustion of remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. The assignor was a passenger in that owner's vehicle. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of MVAIC's cross motion dismissing the complaint. The court also directed counsel to show cause concerning sanctions against provider's counsel under 22 NYCRR 130-1.1 (c) (1) and (3). Counsel called the police report uncertified despite a partially reproduced certification stamp, and called the EUO transcript unsworn although it stated the assignor was duly sworn. The court found the conduct apparently frivolous; sanctions remained undecided.
Appellate Term, Second Department
Sep 28, 2015
2015 NY Slip Op 51445(U)
Insurer prevailed
The provider failed to exhaust remedies against the known owner of the vehicle that struck the assignor before seeking relief from MVAIC. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of MVAIC's cross motion dismissing the complaint. Under Hauswirth v American Home Assur. Co., the provider had to exhaust those remedies. The court also directed counsel to show cause why sanctions should not be imposed against provider's counsel under 22 NYCRR 130-1.1 (c) (1) and (3). Counsel's brief claimed the police report was uncertified, although each page bore certification and the Commissioner's stamped signature. The court found counsel's conduct apparently frivolous but did not impose sanctions in this decision.
Appellate Term, Second Department
Sep 17, 2015
2015 NY Slip Op 51419(U)
Insurer prevailed
A provider that did not respond to EUO requests could not later challenge their reasonableness to defeat summary judgment. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the provider's EUO nonappearance. The insurer's affidavits established timely mailing of scheduling letters and denials through standard office procedures. Its attorney's affirmation established nonappearance because the attorney was present to conduct the EUOs on the scheduled dates. As the provider claimed no response to the requests, its objections were not heard, and discovery concerning reasonableness was unnecessary under CPLR 3212 (f). The insurer complied with 11 NYCRR 65 and did not have to prove that the provider's failure to cooperate was willful.
Appellate Term, Second Department
Sep 17, 2015
2015 NY Slip Op 51461(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignor's failure to attend the scheduled IMEs. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. The appeal from the order was deemed taken from the subsequently entered judgment under CPLR 5501 (c). The insurer's proof established that the assignor failed to comply with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider failed to raise a triable issue of fact.
Appellate Term, Second Department
Sep 17, 2015
2015 NY Slip Op 51465(U)
Split result
The insurer proved its IME nonappearance defense to six claims but failed to establish timely denial of the first claim. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the first cause of action and otherwise affirmed. For the second through seventh causes of action, the insurer established timely mailing of the denials and IME scheduling letters and the assignor's failure to appear. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at a duly scheduled IME is a condition precedent to the insurer's policy liability. The insurer did not establish timely denial of the claim underlying the first cause of action. The provider's remaining arguments were raised for the first time on appeal and were not considered.
Appellate Term, Second Department
Sep 17, 2015
2015 NY Slip Op 51467(U)
Insurer prevailed
The insurer established that one claim was premature for outstanding verification and the others were barred by IME and EUO nonappearance. 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. For the third cause of action, a claims examiner's affidavit established timely mailing of initial and follow-up verification requests and nonreceipt of the requested verification, rendering the claim premature under 11 NYCRR 65-3.8 (a). For the remaining causes of action, the insurer proved timely mailing of IME and EUO scheduling letters, the assignor's nonappearance, and timely denials. Nonappearance breached a condition precedent to coverage. The provider raised no triable issue.
Appellate Term, Second Department
Sep 17, 2015
2015 NY Slip Op 51472(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to establish prima facie entitlement on its no-fault claim. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Under Insurance Law § 5106 (a) and cited precedent, the provider established neither an untimely denial nor a timely denial that was conclusory, vague, or legally meritless; its remaining contentions were not reached.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51410(U)
Insurer prevailed
The insurer properly sent EUO notices to the address supplied on the provider's bills and the assignor's no-fault and assignment forms. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal of the complaint against the insurer. The provider's sole challenge to that dismissal was that the scheduling letters went to the wrong address, but the record conclusively established use of the supplied address. The provider also offered no reasoning for summary judgment against its assignor. That claim concerned the provider's own alleged rights against the assignor and was not properly based on the assignment.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51400(U)
Insurer prevailed
The provider's acupuncturist affidavit failed to meaningfully address or rebut the insurer's IME findings of no medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion to dismiss the acupuncture claims under review. An affirmed physician's IME report and IME reports accompanied by affidavits from a chiropractor and an acupuncturist supplied a factual basis and medical rationale for finding the services unnecessary. The provider's opposing affidavit did not raise a triable issue because it failed to engage with those conclusions. The insurer therefore established entitlement to summary judgment on the appealed claims.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51401(U)
Provider prevailed
The insurer's motion for summary judgment on EUO nonappearance was denied for lack of proof from a person with personal knowledge. The Appellate Term, Second Department, affirmed the order denying dismissal of the provider's assigned no-fault claims. The decision relied on Alrof, Inc. v Safeco Natl. Ins. Co. and Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51402(U)
Insurer prevailed
The provider's unsigned, unsworn medical necessity letters failed to rebut the insurer's sworn peer review report. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The Civil Court had denied both parties' motions but limited trial under CPLR 3212 (g) to medical necessity. The insurer's report supplied a factual basis and medical rationale for finding the services unnecessary. Neither of the provider's two letters was signed or sworn, leaving them without probative value. The insurer's prima facie showing was therefore unrebutted, and the provider had not challenged the finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51403(U)
Insurer prevailed
The insurer proved outstanding verification for the fifth claim and IME and EUO nonappearance for the first, third, and fourth claims. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment on those causes of action and granting the insurer's cross motion dismissing them. A claims examiner's affidavit established timely initial and follow-up verification requests and nonreceipt of verification, making the fifth cause of action premature under 11 NYCRR 65-3.8 (a). For the first, third, and fourth causes of action, the insurer established timely scheduling letters and denials and the assignor's nonappearance. The assignor failed to satisfy a condition precedent to coverage, and the provider raised no triable issue.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51404(U)
Insurer prevailed
The insurer's summary judgment dismissal on the EUO nonappearance defense was affirmed upon a finding of timely mailing of the EUO letters. The Appellate Term, Second Department, also affirmed denial of the provider's motion. The provider's sole challenge to the merits of the insurer's cross motion concerned mailing, which the court found established under the cited mailing precedents.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51405(U)
Provider prevailed
The insurer failed to prove tolling because its EUO letters did not identify the assignor, loss date, or claim number at issue. The Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion dismissing the provider's complaint. The denials were untimely on their face. Although the insurer submitted EUO scheduling letters identifying particular injured persons, loss dates, and claim numbers, none identified the assignor or the loss and claims involved in this action. Those letters therefore did not establish that the insurer's time to pay or deny these claims had been tolled. The court did not reach the provider's remaining arguments.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51408(U)
Insurer prevailed
The insurer established that the second claim was premature and the remaining claims were barred by IME and EUO nonappearance. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint. A claims examiner's affidavit established timely mailing of verification and follow-up requests and nonreceipt of verification for the second cause of action, making it premature under 11 NYCRR 65-3.8 (a). For the remaining causes of action, the insurer proved timely mailing of IME and EUO scheduling letters, the assignor's failure to appear, and timely denials. That nonappearance breached a condition precedent to coverage, and the provider raised no triable issue.
Appellate Term, Second Department
Sep 16, 2015
2015 NY Slip Op 51409(U)
Provider prevailed
The provider's proof of mailing raised a factual issue despite the insurer's proof that it had not received the claims. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion dismissing the complaint for assigned no-fault benefits. The claims adjuster's affidavit sufficiently established nonreceipt, but the provider's billing manager demonstrated that the claim forms had been mailed to the insurer. Those competing affidavits created a triable issue as to whether the insurer's time to pay or deny the claims had ever begun to run, precluding summary judgment.
Appellate Term, Second Department
Sep 2, 2015
2015 NY Slip Op 25304
Insurer prevailed
The insurer established valid retroactive rescission under Pennsylvania law by sending notice and returning premiums within 60 days of policy issuance. Pennsylvania law controlled because the policy was issued there based on representations of residence and garaging there; only the accident connected it to New York. The notice satisfied 40 Pa Cons Stat § 991.2002 (c) (3). Under W.H.O. Acupuncture, P.C. v Infinity Prop. & Cas. Co., proof of compliance with rescission law sufficed without proving underlying fraud. The Appellate Term, Second Department, treated renewal under CPLR 2221 (e) (2) as vacatur of a consent order and exercised inherent discretion because the pending case had not reached trial. It reversed, vacated the prior summary judgment denial, and granted the insurer summary judgment.
Trial court, Second Department
Sep 11, 2015
2015 NY Slip Op 25313
Split result
The insurer's bank subpoena was quashed because it omitted the notice required by CPLR 3101 (a) (4). In an action for assigned no-fault benefits, the insurer sought bank records to support a Mallela defense based on the provider owner's EUO testimony concerning ownership and billing practices. The Civil Court, Kings County, granted the providers' motion to quash but denied a protective order under CPLR 3103 (a), permitting the insurer to serve the subpoena again with the required notice. Service on the bank's managing agent complied with CPLR 311 (a) (1), and advance travel expenses under CPLR 2303 were unnecessary because the subpoena sought documents that could be mailed. The providers had standing to challenge the subpoena, but did not establish a need for a protective order.
Trial court, Second Department
Sep 2, 2015
2015 NY Slip Op 51293(U)
Provider prevailed
A Rhode Island automobile liability policy issued through its Automobile Insurance Plan cannot be rescinded ab initio for material misrepresentation. On stipulated facts, the Civil Court, Kings County, awarded judgment to all three providers seeking assigned no-fault benefits for a New York accident. The policy's out-of-state accident clause supplied New York's minimum required coverage. Rhode Island Regulation 16, section 10, barred retroactive rescission of mandatory liability coverage under Rhode Island General Laws § 31-47-1 et seq. The plan handbook permitted rescission only as allowed by law, and Insurance Bulletin 2003-3 explained that mandatory liability legislation preempted common-law rescission. The stipulated material misrepresentation therefore did not defeat the providers' claims.
