Appellate Division, Fourth Department
Nov 13, 2015
2015 NY Slip Op 08258
Provider prevailed
The insurer failed to eliminate factual issues over whether its insured dealership owned the vehicle involved in the accident. The injured claimant sought no-fault benefits under a policy covering vehicles owned by the dealership. Although the claimant used personal funds to buy the vehicle, the purchase used the dealership's credentials, the sale certificate named it as buyer, and the dealership held title and its dealer plates were on the vehicle at the time of the accident. Under Vehicle and Traffic Law § 128, title and registration support an inference of ownership, but conflicting evidence requires resolution by a factfinder. The Appellate Division, Fourth Department, affirmed denial of the insurer's summary judgment motion dismissing the complaint. The insurer's remaining contentions were unpreserved.
Appellate Term, Second Department
Nov 30, 2015
2015 NY Slip Op 51751(U)
A provider bears the ultimate burden of proving medical necessity after the insurer rebuts the claim form's presumption at trial. The disputed issue was whether the injury requiring shoulder surgery was causally related to the accident. The Civil Court placed the ultimate burden on the insurer and awarded judgment to the provider. Following Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., once the insurer demonstrates lack of medical necessity, the provider must establish necessity by a preponderance of the evidence, consistent with recovery of necessary expenses under 11 NYCRR 65-1.1 (c). Because the judgment might reflect an incorrect allocation of that burden, the Appellate Term, Second Department, reversed and remitted for a new trial.
Appellate Term, Second Department
Nov 30, 2015
2015 NY Slip Op 51746(U)
Insurer prevailed
The attorney's conclusory allegation of extraordinary services failed to state a claim against the insurer for additional contingent fees. The attorney sued after the insurer allegedly sent settlement proceeds, including a contingent fee owed under the provider's retainer, to the IRS pursuant to a levy. Although alleging a superior attorney's lien, the attorney conceded receipt of statutory fees in the settled no-fault actions. Under 11 NYCRR 65-4.6 (g), an attorney may not demand or receive from the insurer fees outside those permitted by the regulation. The complaint alleged no facts supporting recovery beyond authorized fees. The Appellate Term, Second Department, affirmed dismissal for failure to state a cause of action under CPLR 3211 (a) (7).
Appellate Term, Second Department
Nov 30, 2015
2015 NY Slip Op 51756(U)
Insurer prevailed
The provider's medical affirmation failed to rebut the IME report and raised no triable issue of medical necessity. The insurer obtained summary judgment dismissing assigned no-fault claims based on an affirmed IME report and, for some services, the workers' compensation fee schedule. The provider's sole appellate contention concerned its doctor's opposing affirmation, which failed meaningfully to address the IME report's conclusions. It did not challenge the fee-schedule defense, leaving dismissal of those claims unchallenged. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining summary judgment for the insurer on the claims denied solely for lack of medical necessity.
Appellate Term, Second Department
Nov 20, 2015
2015 NY Slip Op 51712(U)
Insurer prevailed
A lack-of-coverage defense is not precluded by defects in the insurer's denial or its timeliness. The provider sought assigned no-fault benefits under a policy that the insurer established was a workers' compensation policy, rather than an automobile policy covering the claim. Following Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., that lack of coverage could be raised irrespective of the propriety or timing of a denial. The provider failed to demonstrate an applicable automobile policy issued by the insurer or raise a triable issue. 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.
Appellate Term, Second Department
Nov 20, 2015
2015 NY Slip Op 51713(U)
Insurer prevailed
The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors. The insurer sought summary judgment dismissing the provider's assigned no-fault action, asserting that it had properly paid the claims after applying the deductible. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer demonstrated payment in accordance with the applicable workers' compensation fee schedule. The provider's challenge to timely mailing failed, and its remaining contention was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 20, 2015
2015 NY Slip Op 51721(U)
Provider prevailed
The insurer's affidavit failed to establish office procedures ensuring proper addressing and mailing of IME scheduling letters. The provider appealed from summary judgment dismissing its action for assigned first-party no-fault benefits. Because the affidavit did not sufficiently describe a standard mailing practice, the insurer failed to show that the IMEs had been properly scheduled and that the assignor had failed to attend duly scheduled IMEs. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 20, 2015
2015 NY Slip Op 51715(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and denials and the assignor's failure to attend the duly scheduled EUOs. That nonappearance established failure 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 in opposition to the insurer's motion. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint. The court declined to consider the provider's remaining contention because it was raised for the first time on appeal.
Appellate Term, Second Department
Nov 20, 2015
2015 NY Slip Op 51711(U)
Insurer prevailed
The insurer established timely mailing of EUO notices, the assignor's nonappearance and timely denials based on that nonappearance. In the provider's assigned no-fault action, both sides sought summary judgment. Contrary to the provider's contention, the insurer proved that the scheduling letters were timely mailed and that the assignor failed to attend duly scheduled EUOs. The nonappearance constituted failure to comply with a condition precedent to coverage. The insurer also timely denied the claims on that ground, and the provider's remaining contentions lacked merit. 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
Nov 20, 2015
2015 NY Slip Op 51716(U)
Split result
The insurer proved its acupuncture fee-schedule reductions, but a factual issue over the IME notice address defeated dismissal of two claims. The insurer demonstrated full payment under the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. Dismissal therefore remained proper for the first and second causes of action and the portions of the third and fourth seeking payment for services not billed under CPT codes 97799 and 99203. A triable issue concerning the address used for IME scheduling letters precluded dismissal of the fifth and seventh causes of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny those branches and otherwise affirmed.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51704(U)
Split result
The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion. For the first and third causes of action, the insurer offered no witness with personal knowledge of the assignor's nonappearance. The provider also failed to establish untimely payment or denial, or timely denials that were conclusory, vague or legally meritless. For the fourth through sixth causes of action, competing affidavits concerning mailing and nonreceipt created a factual issue over whether the time to pay or deny began. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer dismissal of the first and third causes and otherwise affirmed, including the limitation of trial to mailing on the fourth through sixth causes.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51706(U)
Split result
Letters merely delaying payment without requesting specific verification do not toll the insurer's time to pay or deny a claim. The insurer sought dismissal of the unpaid portions of two claims on fee-schedule grounds. Its letters requested no specific verification, and it failed to establish another basis for tolling or freedom from preclusion. The provider likewise failed to prove either nonpayment or denial beyond the 30-day period under Insurance Law § 5106 (a), or timely denials that were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's summary judgment motion on those unpaid portions and otherwise affirmed, leaving the provider's corresponding cross motion denied.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51705(U)
Provider prevailed
MVAIC failed to prove the assignor's nonappearance at the first scheduled EUO through admissible evidence. MVAIC submitted a sworn stenographic transcript establishing nonappearance at the second scheduled EUO, but its proof concerning the first was deficient. It therefore failed to establish the EUO-nonappearance defense in opposition to the provider's motion and in support of its own cross motion. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying MVAIC's cross motion dismissing the complaint. Because MVAIC raised no appellate issue concerning the provider's prima facie case, the court did not pass on the propriety of that determination.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51701(U)
Split result
Conflicting expert opinions defeated the insurer's medical-necessity summary judgment motion, but a provider deposition was warranted. The insurer established timely mailing of its denial, but the parties' medical expert opinions created a triable issue concerning the necessity of the services. The insurer also showed that it had served a deposition notice. Because the examination was material and necessary to the medical-necessity defense under CPLR 3101 (a), the Appellate Term, Second Department, modified the order to compel the provider's examination before trial and otherwise affirmed denial of summary judgment. The examination was to occur within 60 days on at least 10 days' written notice, or at a time and place agreed upon by the parties.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51697(U)
Insurer prevailed
The insurer proved IME and EUO nonappearance on six claims, while medical necessity remained disputed on two others. The insurer established timely mailing of scheduling letters, the assignor's failure to attend duly scheduled examinations and timely denials of the first through sixth causes of action. The nonappearance breached a condition precedent to coverage, and the provider raised no triable issue on those claims. Factual issues concerning medical necessity remained on the seventh and eighth causes of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment, dismissing the first six causes and limiting trial on the remaining two to the insurer's medical-necessity defense.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51698(U)
Insurer prevailed
The insurer established timely denial and full payment under the fee schedule for acupuncture services performed by chiropractors. In the provider's action for assigned no-fault benefits, the insurer opposed the provider's summary judgment motion and cross-moved to dismiss the complaint on fee-schedule grounds. Contrary to the provider's contention, the insurer proved timely mailing of the denial and payment in accordance with the applicable workers' compensation fee schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. 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
Nov 19, 2015
2015 NY Slip Op 51699(U)
Split result
The provider raised a verification dispute on one claim, but the insurer proved IME and EUO nonappearance on five others. For the first cause of action, the insurer established timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a). The provider owner's affidavit, however, created a presumption of mailing and receipt, raising a triable issue of prematurity. For the second through sixth causes, the insurer proved timely IME and EUO notices, the assignor's nonappearance and timely denials, establishing failure of a coverage condition. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of the first cause and otherwise affirmed. The provider's summary judgment motion on all six causes remained denied.
Appellate Term, Second Department
Nov 19, 2015
2015 NY Slip Op 51703(U)
Split result
The insurer proved a misrepresentation in procuring the policy but failed to establish its materiality. The insured assignor misrepresented use of the vehicle in the insurance application. Insufficient evidence of materiality defeated the insurer's request for summary judgment on fraudulent procurement. The provider's motion also failed because it did not establish an untimely denial or a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion on fraudulent procurement and otherwise affirmed. It remitted for determination of the insurer's alternative fee-schedule ground, which the Civil Court had not addressed.
Appellate Term, First Department
Nov 18, 2015
2015 NY Slip Op 51644(U)
Insurer prevailed
An EUO request issued after an assignor misses a rescheduled EUO constitutes a follow-up request under 11 NYCRR 65-3.6 (b). The initial EUO was rescheduled by mutual agreement before its scheduled date, which did not constitute nonappearance. The insurer established timely and proper mailing of notices to the assignor and counsel, and nonappearance at both the rescheduled EUO and the follow-up EUO. The provider raised no factual issue concerning nonappearance, mailing, reasonableness of the notices, or an excuse for noncompliance. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion and granted the motion dismissing the complaint.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51671(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and denials and the assignor's nonappearance, supporting dismissal of the disputed claims. The provider appealed the denial of its summary judgment motion and dismissal of claims denied for EUO and IME nonappearances. The insurer established that the EUO scheduling letters were timely mailed, that the assignor failed to appear for duly scheduled EUOs, and that the claims were timely denied on that ground. The nonappearances violated a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, and expressly declined to decide whether the insurer proved IME nonappearance.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51675(U)
Split result
The assignor's sworn no-fault application raised a workers' compensation issue requiring a stay pending a Workers' Compensation Board determination. The application stated that the assignor was acting in the course of employment when injured, sufficiently raising a factual question about employee status and possible workers' compensation coverage. Because the Board has primary jurisdiction over applicability of the Workers' Compensation Law, the courts could not resolve that issue before its determination. The Appellate Term, Second Department, upheld the insurer's stay but modified the order to hold the provider's summary judgment motion in abeyance, rather than deny it, pending the Board's determination of the parties' rights.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51677(U)
Insurer prevailed
An insurer need not state objective reasons for assignor EUOs as part of its prima facie showing for summary judgment on nonappearance. Following Interboro Ins. Co. v Clennon, the insurer needed to establish two duly demanded EUOs, two failures to appear and a timely denial. Investigator affidavits established timely scheduling notices under standard mailing procedures, and an affidavit and stenographic transcripts established nonappearance. The insurer also proved timely mailing of denials. The Civil Court erred in requiring an objective basis for the requests as part of the prima facie showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the claim at issue because EUO appearance was a coverage condition.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51667(U)
Split result
The insurer's untimely denial precluded its EUO and IME nonappearance defenses to the third cause of action. The insurer proved timely mailing of scheduling letters, the assignor's nonappearances, and timely denials for the first, second, and fourth through eighth causes of action, warranting dismissal. The third claim was not denied within 30 days of receipt under 11 NYCRR 65-3.8 (a) (1), and the insurer did not establish tolling. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the third cause of action, deny the insurer's cross motion as to that claim, and remit for statutory interest and attorney's fees under Insurance Law § 5106 (a); dismissal of the other causes of action was affirmed.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51668(U)
Insurer prevailed
The insurer's attorney established mailing of EUO notices and the assignor's nonappearance; transcripts concerning another assignor raised no issue. The attorney's affirmation described the office's standard mailing practices and established, from personal knowledge as the attorney responsible for conducting the EUOs, that the assignor missed both scheduled appearances. Attached transcripts showing that a different assignor also missed EUOs did not create a factual dispute concerning this assignor. The insurer also established a timely denial based on violation of a condition precedent to coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51678(U)
Split result
The insurer's alleged illegibility excuse did not justify inaction on a claim whose assignor's name and claim number were legible. The insurer acknowledged receipt and already had another claim involving the same assignor and claim number. Its failure timely to deny, request verification or explain inability to process warranted summary judgment for the provider on the first cause of action under 11 NYCRR 65-3.8. On the second cause, the provider employee's affidavit created a presumption of mailing and receipt of requested verification, raising a factual issue of prematurity under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, modified the order to deny the insurer's motion and grant the provider's cross motion on the first cause, otherwise affirming denial of both motions on the second.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51680(U)
Insurer prevailed
The insurer obtained severance because claims for nine assignors raised few, if any, common factual issues. The provider pleaded a separate cause of action for each assignor, and the insurer moved under CPLR 603 to sever the second through ninth causes into separate actions, arguing that they arose from six accidents. Its answer contested the necessity and reasonableness of the particular services and whether each claim exceeded the workers' compensation fee schedule. Those individualized disputes supported severance under Radiology Resource Network, P.C. v Fireman's Fund Ins. Co. The Appellate Term, Second Department, reversed the order denying severance and granted the insurer's motion.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51670(U)
Split result
A court may not search the record to grant an insurer summary judgment on medical necessity when that issue is outside the provider's motion. The provider moved for summary judgment on assigned no-fault claims. The Civil Court denied the motion and, relying on an unrebutted IME report submitted in opposition, dismissed claims for services after the report's cutoff date. Although a court may award summary judgment to a nonmoving party, medical necessity was not the subject of this motion. The Appellate Term, Second Department, modified the order, insofar as appealed from, to strike that dismissal and otherwise affirmed. It declined to consider the provider's remaining arguments because they were raised for the first time on appeal.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51672(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for scheduled IMEs. In the provider's action for assigned no-fault benefits, the insurer proved that the scheduling letters and denial forms had been timely mailed and that the assignor had not attended the duly scheduled IMEs. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances constituted failure to comply with a condition precedent to coverage. The provider raised no triable issue in opposition. 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.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51673(U)
Split result
The provider's proof of mailing requested verification raised a factual issue as to whether its action was premature. The insurer's no-fault examiner established prima facie that the requested verification had not been received, supporting dismissal of the assigned-benefits action as premature under 11 NYCRR 65-3.8 (a). In opposition, the provider's owner submitted an affidavit sufficient to create a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the denial of the provider's summary judgment motion intact.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51674(U)
Split result
A factual dispute over which insurer covered the assignor's vehicle prevented summary judgment for either side. The provider sought assigned no-fault benefits, and the insurer claimed that the assignor had been driving a vehicle insured by another insurer. The insurer's conclusory claims-supervisor affidavit and partially illegible police report did not establish that it did not insure the vehicle occupied by the assignor. The same unresolved coverage question defeated the provider's motion. 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, Second Department
Nov 13, 2015
2015 NY Slip Op 51676(U)
Split result
The insurer failed to prove EUO or IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment. The insurer's attorney offered only a conclusory assertion that the assignor missed duly scheduled EUOs. Its papers also lacked evidence that IME scheduling letters were mailed or that the assignor failed to attend the IMEs. Those deficiencies defeated the insurer's cross motion. The provider's affidavit did not establish an untimely denial or a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the provider's motion denied.
Appellate Term, Second Department
Nov 13, 2015
2015 NY Slip Op 51679(U)
Insurer prevailed
The insurer proved IME nonappearance on six claims and rebutted the presumption of receipt of a seventh claim. Although the provider established its prima facie case, the insurer's description of mail-receipt procedures and absence of a record of the sixth claim raised a factual issue concerning submission. The provider therefore was not entitled to summary judgment on that claim. For the first through fifth and seventh causes of action, the insurer established timely IME notices, the assignor's nonappearance and timely denials based on breach of a coverage condition. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining denial of the provider's motion and dismissal of those six causes, without reaching EUO nonappearance.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51653(U)
Insurer prevailed
The provider failed to identify discovery that could raise a triable issue concerning the insurer's EUO nonappearance defense. The insurer's affidavits established timely mailing of EUO notices and denials, and its attorney's affirmation established the provider's nonappearances. The provider challenged the justification for the requests, sought discovery under CPLR 3212 (f), and argued that willful obstruction had to be shown. Following Interboro Ins. Co. v Clennon, the court stated that the insurer's prima facie showing required duly demanded EUOs, two nonappearances, and a timely denial. The provider did not identify information it hoped to discover that would demonstrate a factual issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51661(U)
Insurer prevailed
The provider submitted its claims to MVAIC after the 45-day deadline and failed to provide written justification for the delay. It was undisputed that 11 NYCRR 65-1.1 required submission within 45 days after the services were rendered and that the provider had not complied. MVAIC's denials based on untimely submission advised the provider that written justification could excuse the delay under 11 NYCRR 65-3.3 (e). None was provided. The Appellate Term, Second Department, reversed the order denying MVAIC's summary judgment motion and granted the motion dismissing the complaint.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51665(U)
Provider prevailed
The insurer failed to establish a proper EUO nonappearance denial because its first EUO notice was mailed about 50 days after claim receipt. The insurer obtained summary judgment dismissing the provider's assigned no-fault claim based on the provider's failure to attend scheduled EUOs. Under 11 NYCRR 65-3.5 (b), additional verification must be requested within 15 business days after receipt of the NF-3, and that requirement applies to EUO requests. The insurer's own moving papers showed the delay in mailing its first scheduling letter. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51663(U)
Insurer prevailed
The provider failed to prove the assignor's New York residency and submission of a notice of intention to claim benefits from MVAIC. At a nonjury trial, the provider's witness established only that a claim form had been created, mailed, and unpaid. Insurance Law § 5208 (a) (1) and (3) requires a timely notice-of-intention affidavit as a condition precedent to payment. New York residency is required for qualified-person status under Insurance Law § 5202 (b), and covered-person eligibility is governed by Insurance Law § 5221 (b) (2). The missing proof defeated the provider's prima facie case. The Appellate Term, Second Department, reversed the provider's judgment and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51659(U)
Insurer prevailed
The provider failed at trial to show exhaustion of remedies against the known vehicle owner before seeking benefits from MVAIC. A prior order had limited the nonjury trial to whether MVAIC coverage existed. MVAIC's employee, the only witness, testified that coverage was available from a specified insurer. Because the assignor knew the owner of the vehicle occupied at the time of the accident, the provider had to exhaust remedies against that owner before seeking MVAIC relief. The Appellate Term, Second Department, reversed the judgment awarding benefits to the provider and remitted the matter for entry of judgment in MVAIC's favor dismissing the complaint.
Appellate Term, First Department
Nov 12, 2015
2015 NY Slip Op 51622(U)
Provider prevailed
The insurer's general description of mailing practices failed to raise a factual issue that verification requests had been mailed. The provider established prima facie entitlement to recover no-fault benefits under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The insurer claimed the action was premature because the provider had not answered verification requests. Its claims supervisor lacked personal knowledge of actual mailing and described office mailing procedures only in general terms, leaving the defense unsupported. The Appellate Term, First Department, affirmed the order granting the provider summary judgment and expressly declined to reach other issues.
Appellate Term, First Department
Nov 12, 2015
2015 NY Slip Op 51623(U)
Insurer prevailed
The insurer established a proper acupuncture fee-schedule denial; a mistaken year in the notary's jurat affected no substantial right. The provider sought the difference between its charges and payments made under the workers' compensation fee schedule. The insurer's affidavits and documentary evidence established timely denial and that the charges exceeded the permitted reimbursement. Under CPLR 2001, the jurat error was properly disregarded because it affected no party's substantial right. The provider raised no triable issue concerning mailing of the denial or calculation of the fee. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the claim.
Appellate Term, First Department
Nov 12, 2015
2015 NY Slip Op 51624(U)
Provider prevailed
The insurer's EUO affidavits did not conclusively defeat the provider's claim on a CPLR 3211 motion to dismiss. The Appellate Term, First Department, reversed the judgment, denied the insurer's motion, and reinstated the complaint. Civil Court improperly converted the motion under CPLR 3211 (a) (1) and (7) to summary judgment without adequate notice under CPLR 3211 (c); the papers showed no intent to seek summary judgment, and factual issues remained. The complaint sufficiently alleged entitlement to first-party no-fault benefits. Affidavits asserting an EUO breach under 11 NYCRR 65-1.1 neither conclusively established that the provider lacked a claim nor qualified as essentially undeniable documentary evidence. The insurer's remaining contentions were unpreserved or without merit.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51654(U)
Insurer prevailed
The insurer established late notice of the accident, and the provider offered no proof of timely notice or a reasonable justification. The insurer's litigation supervisor proved timely mailing of denial forms through standard office practices, and its cross-moving papers showed that it first learned of the accident more than 30 days after it occurred. The denials informed the provider of the opportunity under 11 NYCRR 65-1.1 and 65-2.4 to submit written proof giving a clear and reasonable justification for late notice. The provider submitted no evidence that it used that opportunity or gave timely notice. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and dismissal on the insurer's cross motion.
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51656(U)
Provider prevailed
The insurer failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action. The parties stipulated that only that cause of action would be tried and that the insurer's witness was an expert. The nonjury trial proceeded solely on the medical-necessity defense. Although appellate review of a nonjury determination is as broad as the trial court's authority, credibility findings receive substantial deference. The trial proof and assessment of the insurer's witness supported rejection of the defense. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, and deemed the notice of appeal from the decision premature under CPLR 5520 (c).
Appellate Term, Second Department
Nov 12, 2015
2015 NY Slip Op 51658(U)
Insurer prevailed
The insurer established timely IME and EUO notices and denials and the assignor's nonappearances, warranting dismissal. The provider argued that the scheduling notices were merely delay letters, but the notices were sufficient and the insurer proved their timely mailing. The insurer also established that the assignor failed to attend the duly scheduled IMEs and EUOs and that the claims were timely denied. Those failures breached a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., and the provider raised no triable factual issue. 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.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51629(U)
Insurer prevailed
The insurer's cross motion for summary judgment on its EUO-nonappearance defense was granted, and the provider's motion was denied. The Appellate Term, Second Department, affirmed, finding that the insurer's affidavit established timely and proper mailing of the EUO scheduling letters. That mailing proof was the provider's sole appellate challenge to the cross motion.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51625(U)
Provider prevailed
The insurer failed to prove proper mailing of its denial because its supporting exhibits concerned a different assignor. Its investigator described standard mailing practices and asserted that an attached certified-mail return receipt bore the relevant claim number and showed receipt by the provider. The attached documents, however, related to another assignor and did not establish mailing of the denial at issue. The insurer also failed to articulate a sufficient basis to strike findings made in the provider's favor under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, preserving those findings and denial of the insurer's summary judgment cross motion, with mailing remaining the sole trial issue.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51626(U)
Insurer prevailed
The insurer's unrebutted mailing proof warranted dismissal of the first cause of action, while the provider failed to establish entitlement on the second. For the first claim, the insurer supplied its investigator's mailing procedures and a certified-mail return receipt bearing the claim number and showing the provider's signature. The provider submitted no opposing affidavit and did not challenge the finding that the insurer otherwise was entitled to dismissal. For the second, the provider proved neither an untimely denial nor a timely denial defective as a matter of law. The Appellate Term, Second Department, reversed the judgment and denied the provider summary judgment on the second claim, reversed the reviewed portion of the order and dismissed the first, and left the CPLR 3212 (g) findings issue undecided.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51627(U)
Insurer prevailed
The insurer established prematurity of one supply claim for outstanding verification and proper fee-schedule denials of other supply claims. The provider did not show that the verification had been supplied before suit, so the 30-day payment or denial period had not begun under 11 NYCRR 65-3.8 (a). That claim was dismissed without prejudice. The insurer's claims representative also established proper denials under the workers' compensation fee schedule, and the provider raised no factual issue as to those claims, which were dismissed with prejudice. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting those branches of the insurer's cross motion and declined to consider arguments first raised on appeal.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51628(U)
Insurer prevailed
The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless. In its action for assigned no-fault benefits, the provider did not show either that the insurer failed to pay or deny the claim within the 30-day period under Insurance Law § 5106 (a), or that a timely denial was defective as a matter of law. It therefore failed to establish prima facie entitlement to summary judgment, and the burden never shifted to the insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and expressly declined to reach whether the insurer demonstrated a triable factual issue.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51630(U)
Insurer prevailed
The provider's appellate arguments against dismissal for lack of a covered loss were raised for the first time on appeal. The insurer cross-moved for summary judgment on the ground that the alleged injuries did not arise from a covered loss. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion, also finding the new arguments insufficient under Andromeda Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51631(U)
Split result
Delay letters requesting no specific verification did not toll the insurer's time to pay or deny the claim in the second cause of action. The first EUO notice was sent more than 30 days after receipt of that claim, after the determination period expired. For the third, eighth, and ninth causes of action, the insurer's evidence of nonreceipt and the provider's proof of mailing created a factual issue over whether the payment period began. The Appellate Term, Second Department, modified the judgment, insofar as appealed from, to vacate recovery on those three causes and deny the provider summary judgment on them; denial of the insurer's cross motion remained intact. It remitted for a new judgment on the second and fifth through seventh causes and further proceedings.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51632(U)
Split result
The provider raised factual issues over verification receipt on four causes of action, but the insurer proved nonappearance on the fourth claim. For the first, second, third, and fifth causes of action, the insurer established timely verification requests and nonreceipt, supporting prematurity under 11 NYCRR 65-3.8 (a). The provider's owner's affidavit created a presumption that the requested verification was mailed and received, defeating dismissal. For the fourth cause of action, the insurer proved timely IME and EUO notices, nonappearances, and timely denials, establishing failure of a coverage condition. The Appellate Term, Second Department, modified the order to deny dismissal of the first, second, third, and fifth causes of action; it affirmed dismissal of the fourth and denial of the provider's summary judgment motion.
Appellate Term, Second Department
Nov 9, 2015
2015 NY Slip Op 51633(U)
Provider prevailed
The insurer's chiropractor failed to establish the assignor's nonappearance at both scheduled IMEs by personal knowledge or other proper proof. The insurer cross-moved for summary judgment dismissing assigned no-fault claims on the ground that it had timely and properly denied them for IME nonappearance. The sworn statement of the chiropractor scheduled to conduct the examinations did not adequately prove both missed appointments. The insurer therefore failed to establish entitlement to dismissal as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the cross motion and leaving nonappearance as the sole issue for trial under CPLR 3212 (g).
Trial court, First Department
Nov 20, 2015
2015 NY Slip Op 25387
Insurer prevailed
A provider's refusal to answer relevant EUO questions is a material breach of the policy's cooperation condition and precludes recovery. The provider's owner refused questions about compliance with medical-license supervision restrictions and treatment. Under 11 NYCRR 65-3.5 (c), cooperation was a coverage prerequisite. Public Health Law § 230 protected the disciplinary proceeding, but not the consent order's effect on authorized practice. Arbitration-based preclusion defenses were waived under CPLR 3211 (a) (5) and CPLR 3211 (e). The Supreme Court, New York County, granted the insurers summary judgment declaring no entitlement to the disputed benefits and dismissed payment and attorney-fee counterclaims; the provider had not prevailed on the merits. The alternative stay request was not reached.
Trial court, Second Department
Nov 9, 2015
2015 NY Slip Op 51620(U)
The insurer's summary judgment motion based on collateral estoppel was granted only to the extent of directing a conference. A default declaratory judgment found the accident intentional and uncovered, but the court lacked information about the status of the separate default motion against the assignor. The District Court directed the parties to appear for a conference without explaining why it limited relief to that direction.
