Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51595(U)
Split result
Neither party established entitlement to summary judgment: the insurer's mailing proof and the provider's supporting affirmation were deficient. The insurer's affiants did not establish personal knowledge of mailing practices for denials or the facts of the action, defeating summary judgment on its medical-necessity defense. The provider relied solely on an unsigned counsel affirmation and failed to establish either an untimely denial or a timely denial that was conclusory, vague, or legally meritless. The court left open whether counsel possessed sufficient personal knowledge. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51590(U)
Split result
The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action. The insurer submitted affidavits and an affirmation from the medical professionals scheduled to perform the IMEs, but their conclusory statements that the assignor failed to appear did not establish entitlement to dismissal. The provider also failed to show that the insurer did not pay or deny within 30 days, or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the third cause of action and affirmed denial of the provider's motion on that cause.
Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51591(U)
Split result
The insurer failed to prove both IME nonappearances, and the provider failed to establish an untimely or legally defective denial. The insurer's doctor's affirmation did not establish, through personal knowledge or another appropriate means, that the assignor failed to appear for both scheduled IMEs. The insurer therefore lacked entitlement to summary judgment dismissing the complaint. The provider's supporting affidavit likewise did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, preserving denial of the provider's summary judgment motion.
Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51592(U)
Insurer prevailed
The insurer established timely EUO notices and denial and the assignor's failure to appear, warranting dismissal of the claim. In the provider's action for assigned no-fault benefits, the insurer cross-moved for summary judgment based on the assignor's EUO nonappearances. Contrary to the provider's contention, the insurer proved timely mailing of the scheduling letters and failure to attend the duly scheduled EUOs. Those failures violated a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., and the insurer timely denied the claim on that ground. 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.
Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51596(U)
Insurer prevailed
The provider failed to establish an untimely denial or a timely denial that was conclusory, vague, or without merit as a matter of law. Its summary judgment papers established neither a failure to deny within 30 days nor a legally defective timely denial. The Appellate Term, Second Department, affirmed denial of the provider's motion because it failed to establish prima facie entitlement to recover assigned no-fault benefits.
Appellate Term, Second Department
Oct 30, 2015
2015 NY Slip Op 51599(U)
Split result
Neither side established entitlement to summary judgment on the provider's alleged failure to appear for EUOs. The insurer relied on an affirmation from the attorney assigned to conduct the EUOs, but its papers did not unequivocally show that the attorney was present on the scheduled dates. Without proof from someone with personal knowledge of the provider's nonappearances, the insurer was not entitled to dismissal. The provider likewise failed to show that it appeared for either EUO, defeating its cross motion. The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment dismissing the complaint and affirmed the denial of the provider's cross motion.
Appellate Term, First Department
Oct 27, 2015
2015 NY Slip Op 51545(U)
Provider prevailed
The provider's delay in seeking a default judgment did not warrant dismissal where its claim had merit and the insurer showed no prejudice. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's motion to dismiss the complaint as abandoned under CPLR 3215 (c). The provider had failed to seek a default judgment within one year, but demonstrated a meritorious claim for assigned no-fault benefits that the insurer did not dispute. Although the provider's law office failure excuse was less than compelling, the record showed no prejudice from the delay, supporting the discretionary denial of dismissal.
Appellate Term, Second Department
Oct 26, 2015
2015 NY Slip Op 51568(U)
Provider prevailed
The insurer's attorney failed to establish the provider's nonappearance at both scheduled EUOs through personal knowledge or other proper proof. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault claims based on the provider's failure to attend duly scheduled EUOs. The sworn statement from the attorney assigned to conduct the EUOs did not adequately prove both nonappearances. The insurer therefore failed to establish entitlement to dismissal as a matter of law. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 23, 2015
2015 NY Slip Op 51566(U)
Insurer prevailed
The provider failed to establish submission of its claim within 45 days of treatment or a clear and reasonable justification for lateness. The transit authority established timely mailing of a denial based on late proof of claim, advising that reasonable justification would excuse the delay. Under 11 NYCRR 65-2.4 (c) and 65-3.3 (e), that showing shifted the burden to the provider. The billing manager's affidavit and exhibits did not establish timely mailing, and no evidence showed that justification had been provided. The Appellate Term, Second Department, reversed the order, insofar as reviewed, and granted summary judgment dismissing the complaint. It dismissed as academic the appeal concerning the limited stay of statutory interest.
Appellate Term, First Department
Oct 20, 2015
2015 NY Slip Op 51524(U)
Insurer prevailed
An insurer may request IMEs before a provider submits claim forms under 11 NYCRR 65-1.1. The insurer established proper mailing of chiropractic/acupuncture IME notices and the assignor's repeated nonappearance. Sworn affidavits from the scheduled examiners and an employee of the third-party IME scheduler demonstrated personal knowledge of the failures to appear and described applicable office practices. The provider did not specifically deny nonappearance or raise a triable issue concerning nonappearance, mailing, or the notices' reasonableness. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint; it reached no other issue.
Appellate Term, First Department
Oct 20, 2015
2015 NY Slip Op 51522(U)
Insurer prevailed
An assignor's IME nonappearance permits retroactive denial of all claims, regardless of denial timeliness or different initial denial grounds. The Appellate Term, First Department, reversed the order and granted the insurer summary judgment dismissing the provider's complaint. The insurer established timely, proper mailing of the IME notices and repeated nonappearance. Affidavits from the scheduled acupuncturist and the insurer's third-party IME scheduler demonstrated personal knowledge of the missed appointments and relevant office practices. The provider raised no triable issue concerning nonappearance, mailing, or reasonableness of the notices. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer could deny claims retroactively to the date of loss. The court reached no other issues.
Appellate Term, Second Department
Oct 19, 2015
2015 NY Slip Op 25353
Split result
The insurer was entitled to reasonable defense fees to prevent prejudice from discontinuance after three years of litigation. The provider obtained discontinuance without prejudice and later sued for the same benefits in another county. The record did not support the insurer's assertion that discontinuance was intended to circumvent venue rules, so vacatur or conversion to discontinuance with prejudice was unwarranted. The insurer's numerous motions, discovery, and repeated appearances justified fees under Carter v Howland Hook Hous. Co., Inc. The Appellate Term, Second Department, modified the order to grant fees incurred through discontinuance, otherwise affirmed, and remitted for determination of the reasonable amount. It reached no other issue.
Appellate Term, First Department
Oct 8, 2015
2015 NY Slip Op 25338
Insurer prevailed
An insurer may use another state's prescribed medical fee schedule to establish the prevailing fee for services performed there. The provider sought the unpaid balance for knee-surgery services rendered in New Jersey after the insurer paid according to that state's schedule. Under 11 NYCRR 68.6, reimbursable services under Insurance Law § 5102 (a) (1) were limited to the prevailing local fee. The superintendent's interpretation equating that fee with the permissible local charge warranted deference and served Insurance Law § 5108's cost-containment purpose. Because services were rendered after April 1, 2013, the excessive-fee defense was not precluded under 11 NYCRR 65-3.8 (g). The Appellate Term, First Department, affirmed the order in the insurer's favor.
Appellate Term, First Department
Oct 8, 2015
2015 NY Slip Op 51489(U)
Insurer prevailed
An insurer may use the New Jersey fee schedule to establish the prevailing fee for services rendered there under 11 NYCRR 68.6. The Appellate Term, First Department, affirmed the order, insofar as appealed from, granting the insurer partial summary judgment. The court relied on Surgicare Surgical Associates v National Interstate Ins. Co., companion appeal No. 15-175, decided the same day. The provider's objections to the insurer's proof calculating fees were premature because the Civil Court had not determined the amount reimbursable under the New Jersey schedule. The provider's remaining arguments were rejected.
Trial court, Second Department
Oct 22, 2015
2015 NY Slip Op 25371
Provider prevailed
The insurer's collateral estoppel request could not be entertained until it formally sought to plead fraudulent incorporation. The insurer relied on another insurer's declaratory judgment finding the provider unlawfully incorporated. The provider had a full and fair opportunity to litigate despite a default resulting from willful discovery noncompliance. The Civil Court, Kings County, nevertheless declined dismissal because the insurer had not raised fraudulent incorporation, preventing a showing of identical issues. The Mallela defense was nonwaivable under 11 NYCRR 65-3.16 (a) (12), but the insurer had to move under CPLR 3025 (b) to add it and collateral estoppel, affording the provider an opportunity to contest prejudice or identity of issues. The provider's action remained pending.
