Appellate Division, First Department
Dec 10, 2015
2015 NY Slip Op 09184
Provider prevailed
A provider's fee-sharing arrangement does not furnish a no-fault defense merely because it may constitute unprofessional conduct. The insurer petitioned to vacate a master arbitrator's award. The Appellate Division, First Department, affirmed the order denying vacatur and confirming the award, leaving the provider's award intact. The court left open whether the arrangement constituted unprofessional conduct under 8 NYCRR 29.1 (b) (4), concluding that the matter belonged solely to the appropriate state licensing board, and contrasted Mallela's defense concerning fraudulently incorporated enterprises.
Appellate Division, Third Department
Dec 3, 2015
2015 NY Slip Op 08891
Provider prevailed
An arbitration award rejecting an IME nonappearance defense had a rational basis where the notices omitted part of the insured's apartment number. The insurer sought vacatur under CPLR 7511 after a master arbitrator affirmed the provider's award. None of the mailing evidence correctly listed the insured's address, supporting refusal to presume receipt. Notices also sent to the insured's attorney did not compel vacatur: First Department dicta suggesting such notice sufficed did not render the award legally incorrect, and mistakes of law or fact generally do not warrant vacatur. The Appellate Division, Third Department, affirmed denial of vacatur and confirmation, but declined the provider's request for additional counsel fees and sanctions under 22 NYCRR 130-1.1.
Appellate Term, First Department
Dec 18, 2015
2015 NY Slip Op 51849(U)
Split result
The insurer established its fee-schedule defense to acupuncture claims, but a triable issue remained on the initial-evaluation claim. Affidavits and documentary evidence established timely denials of claims billed under CPT codes 97810, 97811, 97813 and 97814 because the charges exceeded the applicable workers' compensation fee schedule. The provider failed to raise a triable issue concerning mailing of the denials or calculation of those fees. A factual issue remained as to whether the insurer properly denied the claim billed under CPT code 99202. The Appellate Term, First Department, modified the order, insofar as appealed from, to reinstate that claim and otherwise affirmed partial summary judgment for the insurer.
Appellate Term, First Department
Dec 18, 2015
2015 NY Slip Op 51847(U)
Insurer prevailed
An insurer may request IMEs before receiving claim forms and deny claims retroactively when the assignor fails to appear. Under 11 NYCRR 65-1.1, the insurer could request the examinations before receiving the provider's bills. It established proper mailing to the assignor and counsel and repeated nonappearance through affidavits from the scheduled examiner and third-party IME scheduler demonstrating personal knowledge and office practices. The provider raised no triable issue concerning nonappearance, mailing or the notices' reasonableness. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, denial could reach back to the loss regardless of timeliness or different initial denial grounds. The Appellate Term, First Department, affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, First Department
Dec 18, 2015
2015 NY Slip Op 51850(U)
Insurer prevailed
The insurer proved timely mailing of fee-schedule denials through office procedures and the provider's receipt of enclosed checks. The provider sought the difference between its acupuncture charges and payments under the applicable workers' compensation fee schedule. Affidavits detailed mailing procedures, including use of window envelopes displaying the addresses on the enclosed NF-10 or explanation of benefits. The provider conceded receiving the partial-payment checks and did not dispute that the NF-10 forms were in the same envelopes. It failed to raise a triable issue. The Appellate Term, First Department, affirmed summary judgment dismissing the complaint for the insurer, on grounds different from those stated by the Civil Court.
Appellate Term, Second Department
Dec 18, 2015
2015 NY Slip Op 51900(U)
Split result
The provider raised a medical-necessity issue but could not avoid a material and necessary deposition by serving written discovery responses. The insurer proved timely denials and submitted a sworn IME report with a factual basis and medical rationale for finding the services unnecessary. The provider's chiropractor affidavit raised a triable issue, defeating summary judgment. Under CPLR 3101 (a), the provider's deposition was material and necessary to the insurer's defense, and written discovery responses did not make it unnecessary. The Appellate Term, Second Department, modified the District Court's order to grant the branch compelling a deposition and otherwise affirmed, leaving summary judgment denied.
Appellate Term, Second Department
Dec 18, 2015
2015 NY Slip Op 51896(U)
Provider prevailed
The insurer's EUO no-show defense presented a factual issue because the record did not resolve a prior adjournment request. The insurer alleged that the assignor missed two EUOs, but its submissions acknowledged an adjournment request made before the first appointment. Although appearance is a condition precedent to coverage, mutual rescheduling before the appointment does not constitute nonappearance. Counsel did not establish whether such rescheduling occurred, and the record omitted when the request was made and how the insurer responded. The court also left open whether other circumstances explained the alleged nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion.
Appellate Term, Second Department
Dec 18, 2015
2015 NY Slip Op 51897(U)
Insurer prevailed
A declaratory judgment denying a provider's accident-related no-fault entitlement has preclusive effect even if entered on default. After the provider sued for payment for medical supplies, the insurer obtained a Supreme Court, Bronx County, judgment declaring that the provider and its assignor were not entitled to benefits arising from the accident. That judgment conclusively determined entitlement, and recovery in the pending action could destroy or impair the rights it established. 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. The provider's remaining contentions lacked merit or were unpreserved.
Appellate Term, Second Department
Dec 15, 2015
2015 NY Slip Op 51886(U)
Provider prevailed
An order authorizing entry of a declaratory judgment has no preclusive effect if it does not declare the parties' rights. After the provider moved for summary judgment in its benefits action, the insurer obtained a default order granting entry of a declaratory judgment in a separate coverage action. The insurer relied on that order to seek dismissal through res judicata and collateral estoppel. Because the order contained no declaration of rights, it was not a conclusive final determination and could not preclude the provider's claims. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment.
Appellate Term, Second Department
Dec 15, 2015
2015 NY Slip Op 51891(U)
Insurer prevailed
An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses. The insurer served a deposition notice with its answer and other discovery demands, then moved to compel the provider's appearance. Under CPLR 3101 (a) and CPLR 3102, disclosure devices have no prescribed order of priority, and simultaneous written demands did not make the deposition premature. The provider failed to show unreasonable annoyance, unnecessary expense or prejudice warranting protection under CPLR 3103. The Appellate Term, Second Department, reversed the order, insofar as appealed from, reinstated the insurer's deposition notice and granted the branch of its motion to compel the deposition.
Appellate Term, Second Department
Dec 14, 2015
2015 NY Slip Op 51880(U)
Provider prevailed
The insurer failed to prove proper cancellation under Pennsylvania law because it omitted the policy and declarations page. The insurer sought summary judgment based on cancellation for nonpayment of premium before the accident. Under 40 P.S. § 991.2006, cancellation notice must be mailed to the named insured at the address shown in the policy, in strict accordance with Pennsylvania's Act 68. Without the policy or declarations page, the court could not determine whether notice went to that address. The provider abandoned its argument that Pennsylvania law did not control. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 14, 2015
2015 NY Slip Op 25425
Split result
An option to arbitrate no-fault disputes supports a stay upon a motion to compel arbitration, rather than dismissal of the action. The New Jersey policy's choice-of-law clause governed. NJ Stat Ann § 39:6A-5.1 (a) and NJ Admin Code § 11:3-5.1 (a) made dispute resolution optional, as did the policy. Because the insurer had not moved to compel arbitration under CPLR 7503 (a), its dismissal cross motion failed. The provider also failed to establish medical necessity or improper nonpayment within 60 days after written notice of a covered loss and its amount under NJ Stat Ann § 39:6A-5 (g). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion.
Appellate Term, Second Department
Dec 14, 2015
2015 NY Slip Op 51879(U)
Insurer prevailed
The insurer's motion to compel the provider to appear for a deposition was granted and upheld on appeal. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co.
Appellate Term, Second Department
Dec 14, 2015
2015 NY Slip Op 51881(U)
Split result
The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2014-1315 Q C. The provider's motion for summary judgment remained denied.
Appellate Term, Second Department
Dec 14, 2015
2015 NY Slip Op 51882(U)
Split result
The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in Natural Therapy Acupuncture, P.C. v Geico Ins. Co., the companion appeal decided the same day, No. 2014-1315 Q C. The provider's motion for summary judgment remained denied.
Appellate Term, Second Department
Dec 9, 2015
2015 NY Slip Op 51873(U)
Split result
The insurer established that eight claims were premature because timely requested verification remained outstanding. In this assigned-benefits action, the insurer's unopposed cross motion established timely mailing of initial and follow-up verification requests for the first through seventh and ninth causes of action, but not the eighth. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny the eight claims had not begun. The Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment on those claims, granted the insurer summary judgment dismissing them, and remitted for judgment for the provider on the eighth claim with statutory interest and attorney's fees under Insurance Law § 5106. The court did not pass on the provider's uncontested prima facie case.
Appellate Term, Second Department
Dec 8, 2015
2015 NY Slip Op 51794(U)
Insurer prevailed
The self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step. The affidavit stated that no vehicle belonging to the self-insurer was involved in the alleged collision, that searches under the assignor's name found no associated accident record, and that the self-insurer issued no automobile policies to individuals or entities. The Appellate Term, Second Department, found that proof sufficient for prima facie entitlement to summary judgment and rejected the provider's demand for a detailed description of the search. The provider raised no triable issue in opposition. The court affirmed the order granting the self-insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 2, 2015
2015 NY Slip Op 51776(U)
Split result
The provider raised a factual issue on verification, but the insurer proved IME nonappearance warranting dismissal of the remaining claims. The insurer established timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a), but the provider owner's affidavit created a presumption that the requested verification was mailed and received. The third cause of action therefore could not be dismissed as premature. For the remaining claims, the insurer proved timely IME notices, the assignor's nonappearance and timely denials, establishing breach of a coverage condition. The Appellate Term, Second Department, modified the order to deny dismissal of the third cause of action, otherwise affirmed, and left the EUO nonappearance issue undecided. The provider's summary judgment motion remained denied.
Appellate Term, Second Department
Dec 2, 2015
2015 NY Slip Op 25405
Provider prevailed
An eCourts notation that a case was settled does not satisfy CPLR 2104's open-court requirement. The provider sought restoration to the trial calendar approximately three and a half years after the action was marked settled, asserting that no settlement occurred. Although judicial notice could be taken of the website, its notation did not memorialize settlement terms. The record also showed no settlement reduced to a signed writing or made in open court. Because no enforceable agreement was established, the Appellate Term, Second Department, reversed and granted restoration. The provider was not required to demonstrate lack of prejudice because the case had been marked settled; the court reached no other issue.
Appellate Term, Second Department
Dec 2, 2015
2015 NY Slip Op 51777(U)
Insurer prevailed
A party may not appeal from an order entered on its own default under CPLR 5511. The provider sought review of an order granting the insurer's unopposed motion to dismiss its action for assigned first-party no-fault benefits. Because the dismissal order was entered on the provider's default, the Appellate Term, Second Department, dismissed the appeal, leaving the insurer's dismissal order in place.
Appellate Term, Second Department
Dec 2, 2015
2015 NY Slip Op 51789(U)
Insurer prevailed
A default declaratory judgment barring no-fault payment is a conclusive final determination for res judicata purposes. Before the provider commenced its benefits action, the insurer sued the assignor and providers, including this provider, seeking a declaration of no payment obligation based on IME nonappearance. Supreme Court subsequently granted the insurer declaratory relief on default. The insurer relied on that order in an unopposed cross motion for summary judgment in the benefits action. A contrary judgment could destroy or impair rights established by the declaratory order, which remained conclusive despite the default. The Appellate Term, Second Department, reversed, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 1, 2015
2015 NY Slip Op 51760(U)
Split result
The provider proved its unpaid claims at trial, but statutory interest was stayed for approximately three years of failure to prosecute. The provider's bills and mailing proof were admitted through its owner's testimony, which also established nonpayment. The insurer rested without offering a defense, supporting judgment for the provider after the nonjury trial. However, after a stipulation vacated dismissal, the provider took no action for approximately three years before filing a notice of trial. Under 11 NYCRR 65-3.9 (d), that inactivity warranted extending the interest stay to February 27, 2009. The Appellate Term, Second Department, modified the judgment accordingly, otherwise affirmed, and remitted for recalculation of interest and entry of an amended judgment.
Appellate Term, Second Department
Dec 1, 2015
2015 NY Slip Op 51761(U)
Provider prevailed
The provider was not bound by a Virginia rescission order because it was not a party and privity with the assignor was unproved. The insurer denied two assigned no-fault claims after purporting to rescind the automobile policy for material misrepresentations concerning where the vehicle would be kept. It later obtained an agreed Virginia order voiding the policy ab initio and relied on that order for summary judgment. The provider lacked a full and fair opportunity to defend its interests, and the insurer failed to show privity when the Virginia action commenced. The Appellate Term, Second Department, reversed and denied the insurer's motion. It reached no other issue, including the provider's objection that the Virginia order was uncertified.
