No-Fault Decisions, February 2016

Appellate Term, Second Department Feb 26, 2016 2016 NY Slip Op 26062 Split result

Compas Med., P.C. v Fiduciary Ins. Co. of Am.

Written accident notice mailed within 30 days satisfies the no-fault notice requirement, even if the insurer receives it later. The Appellate Term, Second Department, read 11 NYCRR 65-1.1 (d) with the prescribed cover letter required by 11 NYCRR 65-3.4 (b); an NF-2 satisfies written notice under 11 NYCRR 65-3.3 (d). Because day 30 fell on Saturday, General Construction Law §§ 20, 25 and 25-a extended timely mailing through Monday, when the insurer received the application. Receipt then did not establish untimely notice. The court modified the order to deny the insurer's cross motion for summary judgment. The provider's motion remained denied because it failed to establish untimely payment or denial under Insurance Law § 5106 (a), or a legally deficient timely denial.

Appellate Term, Second Department Feb 23, 2016 2016 NY Slip Op 50212(U)

Apollo Chiropractic Care, P.C. v MVAIC

MVAIC's defense that an assignor failed to file a timely notice of intention to make a claim is not subject to preclusion. The parties submitted agreed facts establishing timely claim submission and misaddressed verification requests, but not whether the assignor satisfied the coverage prerequisites. Insurance Law § 5208 (a) makes timely notice a condition precedent, and Insurance Law § 5221 (b) (2) requires compliance with article 52 for covered-person status. MVAIC had no duty to notify the claimant of untimely notice and could not be estopped from raising that failure. The Appellate Term, Second Department, reversed the provider's judgment and remitted for a more definite stipulation or trial on coverage; neither side obtained a final merits determination.

Appellate Term, Second Department Feb 23, 2016 2016 NY Slip Op 50215(U) Insurer prevailed

Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co.

The provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion. Despite a stipulated schedule for opposition and reply papers, the provider did not oppose the insurer's motion alleging lack of medical necessity. The provider sought vacatur almost seven months later, asserting law office failure. Under CPLR 5015 (a) and CPLR 2005, law office failure may constitute a reasonable excuse when supported by a detailed, credible explanation. The provider's conclusory, unsubstantiated claim did not satisfy that standard. The Appellate Term, Second Department, affirmed denial of vacatur and found it unnecessary to determine whether the provider had potentially meritorious opposition.

Appellate Term, Second Department Feb 23, 2016 2016 NY Slip Op 50216(U) Insurer prevailed

Metropolitan Diagnostic Med. Care, P.C. v American Commerce Ins. Co.

The provider's no-fault action was barred by res judicata following a default declaratory judgment denying coverage for the same claims. The insurer had obtained a judgment in Supreme Court, New York County, declaring that it owed no benefits to the provider or assignor under the claim number at issue, based on alleged EUO nonappearances. It then sought summary judgment dismissing the provider's Civil Court action. The insurer's answer had pleaded res judicata, collateral estoppel, and another pending action, contrary to the provider's contention that pendency had not been asserted. The Appellate Term, Second Department, affirmed dismissal on res judicata grounds and rejected the provider's equitable estoppel argument.

Appellate Term, Second Department Feb 22, 2016 2016 NY Slip Op 50206(U) Provider prevailed

Lenox Hill Radiology v Great N. Ins. Co.

The provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt. The insurer moved for summary judgment dismissing an action for assigned no-fault benefits and made a prima facie showing that it had not received the claim form. An affidavit from the mailing supervisor in the provider's attorneys' offices established mailing to the insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. It also rejected the insurer's contention that untimely submission of the claim form, by itself, entitled the insurer to summary judgment.

Appellate Term, Second Department Feb 22, 2016 2016 NY Slip Op 50196(U) Provider prevailed

Careplus Med. Supply, Inc. v Allstate Ins. Co.

A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the provider established mailing and receipt of statutory billing forms and overdue payment. Renewal based on changed law was timely because no final judgment had been entered. The insurer failed to prove timely mailing of one assignor's EUO follow-up notice under 11 NYCRR 65-3.6 (b), and denied the other assignor's claims more than 30 days after the EUO. It therefore failed to establish tolling or avoid preclusion of its defenses. The Appellate Term, Second Department, recalled its prior affirmance, reversed the District Court's order, and granted the provider summary judgment.

Appellate Term, First Department Feb 18, 2016 2016 NY Slip Op 50174(U) Provider prevailed

Metro 8 Med. Equip., Inc. v ELRAC, Inc.

The insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion. The examiner's affidavit lacked probative value because the examiner maintained no records of nonappearances and did not explain the basis for recalling the assignor's absence approximately 18 months later. Under Gogos v Modell's Sporting Goods, Inc., the affidavit's proponent had to establish the basis of the affiant's knowledge. The scheduling vendor's affidavit alone could not establish personal knowledge of nonappearance, since routine recording of third-party statements did not guarantee their truth or reliability.

Appellate Term, First Department Feb 18, 2016 2016 NY Slip Op 50173(U) Provider prevailed

EMA Acupuncture, P.C. v Travelers Ins. Co.

The insurer failed to prove the provider's EUO nonappearances through evidence from anyone with personal knowledge. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits. Its attorney's affirmation neither described personal knowledge of office procedures when a claimant failed to appear nor alleged that the attorney was assigned to the file and would have conducted the EUO had the provider's principal appeared. The Appellate Term, First Department, affirmed denial of the insurer's motion on grounds different from those relied on by the Civil Court and expressly declined to reach any other issues.

Appellate Term, First Department Feb 17, 2016 2016 NY Slip Op 50167(U) Split result

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co.

The insurer's medical-necessity motion failed because its chiropractor/acupuncturist's IME report was not in admissible form. The report incorrectly identified its author as a physician and purported to be an affirmation under CPLR 2106, although neither a chiropractor nor an acupuncturist could affirm a medical report under that provision. The insurer also failed to show that the report had been sworn before a notary or other authorized official. The Appellate Term, First Department, modified the order to deny the insurer's summary judgment motion and reinstate the complaint. It affirmed denial of the provider's cross motion because the provider failed to establish that its claims were unpaid or undenied within 30 days.

Appellate Term, Second Department Feb 5, 2016 2016 NY Slip Op 50130(U) Provider prevailed

Advanced Med. Care, P.C. v Allstate Ins. Co.

The insurer failed to establish effective policy termination because it did not sufficiently prove timely filing of the termination notice with DMV. The insurer sought summary judgment dismissing the provider's assigned no-fault claims based on alleged termination of the policy. Vehicle and Traffic Law § 313 (2) (a) required filing a copy of the termination notice with the Department of Motor Vehicles within 30 days of termination's effective date. The assignor was neither the named insured nor shown to be a member of that insured's household, implicating Vehicle and Traffic Law § 313 (3). The Appellate Term, Second Department, affirmed denial of the insurer's motion because termination had not been established as effective against the assignor.

Appellate Term, Second Department Feb 5, 2016 2016 NY Slip Op 50133(U) Insurer prevailed

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co.

The provider's argument that the defending insurer lacked privity with the declaratory judgment plaintiff was unpreserved. A different insurer had obtained a default declaration in Supreme Court, New York County, that it owed no benefits to the named providers for the collision under the policy and claim numbers at issue, based on alleged EUO nonappearances. The defending insurer relied on that order in seeking summary judgment. Because the provider had not raised its privity argument in Civil Court, the Appellate Term, Second Department, declined to review it, rejected the remaining contentions, and affirmed denial of the provider's motion and grant of the insurer's cross motion dismissing the complaint.

Appellate Term, Second Department Feb 5, 2016 2016 NY Slip Op 50132(U) Provider prevailed

Emc Health Prods., Inc. v National Liab. & Fire Ins. Co.

The provider's employee affidavit raised a triable issue over whether requested verification had been mailed to and received by the insurer. The insurer sought summary judgment dismissing the first, second, third, and fifth causes of action as premature. Its proof established timely mailing of initial and follow-up verification requests and prima facie nonreceipt of the responses, supporting prematurity under 11 NYCRR 65-3.8 (a). The provider's opposing affidavit, however, created a presumption of mailing and receipt of the requested verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the branches of the insurer's cross motion addressing those four causes of action.

Trial court, Second Department Feb 9, 2016 2016 NY Slip Op 26042 Insurer prevailed

East Coast Acupuncture, P.C. v Hereford Ins. Co.

⚠ Not followed by Blano Med., P.C. v Hereford Ins. Co (2025 NY Slip Op 51540(U))

A fee schedule defense for services rendered after April 1, 2013 is not precluded by a denial issued beyond 30 days. The Civil Court, Kings County, construed 11 NYCRR 65-3.8 (g) (1) as an exception to the payment deadline in 11 NYCRR 65-3.8 (a) (1) for fees exceeding charges permitted by Insurance Law § 5108 (a) and (b). The amendment did not alter the provider's prima facie burden under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.; overbilling remained an affirmative defense. Unopposed coder evidence and payment checks established that the insurer paid the acupuncture services at the applicable chiropractic rate. The court granted the insurer's summary judgment motion and dismissed the complaint.

Trial court, Second Department Feb 1, 2016 2016 NY Slip Op 50105(U) Insurer prevailed

Bertucci v 21st Century Ins.

An insurer's refusal to pay for treatment does not establish a negligence claim independent of its contractual obligations. The insured alleged that the insurer's communications refusing payment caused providers to discontinue treatment and aggravated injuries. The Supreme Court, Nassau County, granted the insurer's post-answer motion under CPLR 3211 (a) (7), dismissing the negligence cause of action and striking punitive damages from the contract claim. The insured identified no duty separate from the insurance contract and no legal basis prohibiting communications with providers about the coverage investigation. Punitive damages were unavailable because the allegations established neither an independent tort nor a pattern of conduct directed at the public generally. The ruling did not dismiss the remaining breach-of-contract claim.