Court of Appeals
Mar 31, 2016
2016 NY Slip Op 02473
Insurer prevailed
No-fault insurers are not required to reimburse facility fees charged by accredited office-based surgery practices. The provider separately billed professional services and fees for use of its location, equipment and support staff; the insurers paid the professional charges but declined the facility fees. The Court of Appeals affirmed summary judgment declaring that the insurers had no obligation to pay those fees. Insurance Law § 5102 (a) (1) subjects reimbursable expenses to Insurance Law § 5108, and the authorized schedules provide facility fees for hospitals and ambulatory surgery centers, but not office-based surgery practices. Nor does 11 NYCRR 68.5 authorize recovery: facility fees are expenses associated with services, rather than professional health services themselves.
Appellate Division, Second Department
Mar 30, 2016
2016 NY Slip Op 02357
The out-of-state insurer's duty to arbitrate required a hearing on its control relationship with an authorized New York insurer. The Appellate Division, Second Department, reversed denial of the petition to stay no-fault arbitration, remitted for a hearing and a new determination, and stayed arbitration meanwhile. Under Insurance Law § 5107 (a) and 11 NYCRR 65-1.8 (b), the Pennsylvania insurer's policies could be subject to New York's no-fault requirements through such a relationship. Insurance Law § 5106 (b) would then require an arbitration option despite the absence of a policy clause. The record did not establish that relationship. An earlier proceeding challenging only personal jurisdiction did not estop the insurer from raising the merits or bar this proceeding through res judicata or collateral estoppel.
Appellate Division, First Department
Mar 17, 2016
2016 NY Slip Op 01921
Split result
The insurer satisfied Insurance Law § 5106 (c) for de novo adjudication and timely sent its EUO follow-up request. Supreme Court denied the insurer's motion for de novo review of the master arbitrator's findings and summary judgment, and dismissed the complaint sua sponte. The Appellate Division, First Department, modified the order to reinstate the complaint and grant de novo review, while leaving the denial of summary judgment intact. The second follow-up request was sent 11 days after the provider's nonappearance. Because the tenth day fell on a Sunday, General Construction Law § 25-a extended the deadline under 11 NYCRR 65-3.6 (b) to the next business day.
Appellate Division, First Department
Mar 17, 2016
2016 NY Slip Op 01922
Insurer prevailed
An insurer's 10-day EUO follow-up deadline extends to the next business day when the tenth day falls on a Sunday. The insurer sent its second follow-up request 11 days after the provider failed to appear on the date specified in the first request. General Construction Law § 25-a extended the deadline under 11 NYCRR 65-3.6 (b). The Appellate Division, First Department, affirmed the order and judgment vacating the master arbitration decision and reinstating the arbitrator's award, in favor of the insurer.
Appellate Division, Second Department
Mar 16, 2016
2016 NY Slip Op 01855
Insurer prevailed
The injured claimant's petition to vacate four master arbitration awards denying lost-wage benefits was denied for lack of a vacatur ground. The Appellate Division, Second Department, affirmed denial of the petition under CPLR 7511 and confirmation of the awards, in favor of the insurer. It stated that vacatur grounds are narrowly applied and that the master arbitrator's determinations had evidentiary support and a rational basis.
Appellate Term, Second Department
Mar 30, 2016
2016 NY Slip Op 50524(U)
Insurer prevailed
The insurer established that it had not issued the policy covering the accident and that the provider had sued the wrong carrier. The provider sought assigned first-party no-fault benefits. In support of dismissal, the defendant submitted affidavits from its litigation manager and a manager of the insurer that had issued the policy. The latter manager expressly attested that the other insurer's policy covered the accident. Those affidavits sufficiently established the defendant's lack-of-coverage defense and entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order granting the defendant insurer's motion dismissing the complaint.
Appellate Term, First Department
Mar 28, 2016
2016 NY Slip Op 50415(U)
Insurer prevailed
The insurer's IME report established that further acupuncture was unnecessary, and the provider offered no competent medical evidence in opposition. The insurer supported its timely denial with claims administrators' employee affidavits detailing mailing procedures and a chiropractor/acupuncturist's IME report supplying a sufficient factual basis and medical rationale for the treatment cutoff. The provider's attorney affirmation, without medical evidence or other competent proof, raised no triable issue concerning medical necessity. Its specific challenge to the mailing proof was raised for the first time on appeal and was not properly before the court. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the no-fault complaint.
Appellate Term, First Department
Mar 28, 2016
2016 NY Slip Op 50412(U)
Provider prevailed
The insurer's incomplete peer review failed to support two denials, and the provider's medical affidavit raised factual issues on two other claims. The insurer established timely denial mailing and submitted peer reviews in admissible form. However, missing pages from one report made it insufficient to establish lack of medical necessity for the supplies covered by two claims. Another report supported the defense for two other claims, but the provider's affidavit identified the assignor's conditions and explained the intended benefits of each supply, raising triable issues concerning medical necessity. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied its motion and reinstated the provider's no-fault complaint.
Appellate Term, Second Department
Mar 23, 2016
2016 NY Slip Op 50402(U)
Split result
The insurer failed to establish a timely denial preserving policy-procurement fraud or prove that the injuries arose outside an insured incident. Its fraudulent-procurement defense required a timely denial; its separate lack-of-coverage defense escaped preclusion but lacked sufficient evidentiary support under Central Gen. Hosp. v Chubb Group of Ins. Cos. The provider likewise failed to establish entitlement to summary judgment because it proved neither a denial beyond the 30-day period nor a timely denial that was conclusory, vague or legally meritless under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving both parties without summary judgment.
Appellate Term, Second Department
Mar 23, 2016
2016 NY Slip Op 50399(U)
Split result
The insurer failed to prove IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment. The insurer submitted an orthopedic examiner's affirmation and a chiropractor's affidavit, but neither established the assignor's nonappearance through personal knowledge or other appropriate proof. The insurer therefore failed to demonstrate breach of a condition precedent to coverage. The provider's affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order by denying the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the provider's motion denied. Each side defeated the other's request for summary judgment.
Appellate Term, Second Department
Mar 23, 2016
2016 NY Slip Op 50396(U)
Insurer prevailed
The insurer established that the assignor failed to appear for duly scheduled IMEs, and the provider raised no triable issue of fact. In this action for assigned first-party no-fault benefits, the provider challenged the sufficiency of the insurer's affidavits as its sole merits argument on appeal. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at an IME is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Mar 23, 2016
2016 NY Slip Op 50397(U)
Provider prevailed
The insurer failed to establish timely mailing of the IME scheduling letters underlying its nonappearance defense. It sought summary judgment dismissing the provider's assigned no-fault complaint, asserting that it had timely and properly denied the claim for the assignor's failure to attend scheduled IMEs. Its motion papers did not show timely mailing under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It therefore failed to establish proper scheduling or breach of a condition precedent to liability under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed denial of the insurer's motion.
Appellate Term, Second Department
Mar 23, 2016
2016 NY Slip Op 50403(U)
Provider prevailed
The motion court acted within its discretion by declining dismissal for the provider's failure to produce its treating provider for deposition. The provider had failed to comply with two disclosure orders, and the insurer sought summary judgment dismissing the no-fault complaint under CPLR 3126. The District Court precluded the treating provider from testifying at trial but denied dismissal. The nature and degree of disclosure sanctions lie within the motion court's discretion, and appellate intervention requires an improvident exercise of that discretion. Finding none on this record, the Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, First Department
Mar 21, 2016
2016 NY Slip Op 50339(U)
Provider prevailed
⚠ Not followed by Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148)
The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later. In the provider's assigned no-fault action, the IME doctors' affidavits lacked probative value because they did not identify the basis for recalling the assignor's absence approximately 12 months after the scheduled examinations. The scheduling vendor's affidavit alone could not establish personal knowledge of nonappearance. Following Matter of Leon RR, routine recording of third-party reports did not guarantee their truth or reliability. The Appellate Term, First Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.
Appellate Term, First Department
Mar 21, 2016
2016 NY Slip Op 50338(U)
Provider prevailed
The insurer's letter delaying payment pending IMEs did not toll the 30-day period, and its medical-necessity defense was precluded. The provider established that its claims were overdue because they had not been paid or denied within 30 days. The insurer failed to raise a triable issue concerning timely denial or tolling through verification requests predating receipt of the claims. The Appellate Term, First Department, reversed the order, insofar as appealed from, denied the insurer's summary judgment motion, reinstated the complaint, and granted the provider's cross motion on the claims at issue. The order was appealable because Civil Court had addressed the merits of reargument and effectively granted it, despite purporting to deny reargument.
Appellate Term, Second Department
Mar 18, 2016
2016 NY Slip Op 50391(U)
Insurer prevailed
The insurer established a valid retroactive rescission of the Florida policy based on material misrepresentations about residence and garaging. The provider sought assigned no-fault benefits for a New York accident, and the Civil Court granted its cross motion because the insurer had not timely denied the claim. Florida Statutes Annotated, title 37, § 627.409 permits rescission for material misrepresentations in an insurance application. The insurer's affidavit and documents demonstrated notice of rescission and return or tender of all premiums within a reasonable time after discovery of the grounds for rescission. The provider raised no triable issue concerning validity under Florida law. The Appellate Term, Second Department, reversed, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Mar 18, 2016
2016 NY Slip Op 50389(U)
Insurer prevailed
The insurer's affidavit and exhibits established full payment for the disputed services under the workers' compensation fee schedule. The provider sued for assigned first-party no-fault benefits and moved for summary judgment; the insurer cross-moved to dismiss on the ground that it had timely and properly paid the claims. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer's no-fault examiner's affidavit and supporting exhibits established its defense. The provider failed to raise a triable issue of fact. 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
Mar 18, 2016
2016 NY Slip Op 50390(U)
Provider prevailed
The provider proved by a preponderance of the credible evidence that the disputed acupuncture treatments were medically necessary. At a nonjury trial, the insurer's IME examiner testified that the assignor's injuries had resolved and further acupuncture was unnecessary. The treating provider testified that the injuries persisted after the IME and that work as a parking valet exacerbated them and impeded treatment. After the insurer showed lack of medical necessity, the provider met its burden of proving necessity. The insurer was also precluded from asserting possible workers' compensation eligibility because its denials relied solely on the IME. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits.
Appellate Term, Second Department
Mar 18, 2016
2016 NY Slip Op 50392(U)
Insurer prevailed
The insurer established nonreceipt of the claims, and the provider's mailing log showed they were sent to a different insurer. The insurer's no-fault representative supplied prima facie proof that the claim forms were not received. Although the provider described its mailing practices, its affidavit identified the recipient only as the insurance carrier and supplied no other proof of mailing to this defendant. The provider therefore failed to raise a triable issue. The absence of a certificate of conformity for the insurer's out-of-state affidavit was curable or could be disregarded under CPLR 2001. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50376(U)
Provider prevailed
The insurer's IME examiners failed to show personal knowledge of nonappearance, and its fee-schedule reductions presented triable issues. The insurer sought summary judgment dismissing all claims for assigned no-fault benefits based on the assignor's alleged IME nonappearance. Neither the chiropractor nor the doctor scheduled to conduct the IMEs demonstrated personal knowledge of the assignor's failure to attend. The insurer also sought dismissal of the first through third and fifth through seventh causes of action on fee-schedule grounds. Its litigation examiner established prima facie proper reductions under the workers' compensation fee schedule, but the provider raised triable issues concerning those reductions. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50378(U)
Insurer prevailed
The insurer's affidavit established timely and proper mailing of the denial of claim form supporting its IME nonappearance defense. The provider sought assigned first-party no-fault benefits, and the insurer moved for summary judgment based on the assignor's failure to appear for IMEs. The provider's sole appellate contention challenged proof of mailing of the denial. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, rejected that challenge and affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50379(U)
Split result
The insurer's IME nonappearance defense was precluded on the first claim because it failed to deny within 30 days or establish tolling. The provider proved submission, and the insurer's adjuster acknowledged the late denial, establishing the provider's prima facie case under 11 NYCRR 65-3.8 (a) (1). For the second cause of action, the insurer proved timely IME scheduling letters, nonappearance, and timely denial; the provider raised no triable issue. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the first cause of action and deny dismissal of that claim, while affirming dismissal of the second. It remitted for statutory interest and attorney's fees on the first claim under Insurance Law § 5106 (a).
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50380(U)
Insurer prevailed
The insurer's affidavits established timely mailing of the IME requests and denials and the assignor's failure to attend duly scheduled IMEs. The provider sought assigned first-party no-fault benefits. The president of the company retained to schedule IMEs established timely mailing of the requests, the intended examiner established nonappearance, and the insurer's claims examiner established timely mailing of the denials. This proof demonstrated failure to comply with a condition precedent to coverage under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable issue. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50381(U)
Split result
The provider's employee affidavit raised a triable issue as to whether requested verification was received, defeating dismissal as premature. The insurer established timely mailing of its initial and follow-up verification requests and prima facie nonreceipt of the requested material, supporting its prematurity defense under 11 NYCRR 65-3.8 (a). In opposition, the provider's employee affidavit was sufficient to create a presumption that the verification had been mailed to and received by the insurer. That conflicting proof left a factual issue concerning prematurity. 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 summary judgment motion denied.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50382(U)
Insurer prevailed
The provider's doctor's affidavit failed to meaningfully address or rebut the insurer's peer review finding that the services lacked medical necessity. The insurer moved for summary judgment dismissing the provider's action for assigned no-fault benefits and established timely mailing of its denial. Its affirmed peer review supplied a factual basis and medical rationale for the determination that the services were not medically necessary. The provider's opposing affidavit did not sufficiently rebut those conclusions, leaving the insurer entitled to summary judgment. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Mar 17, 2016
2016 NY Slip Op 50383(U)
Provider prevailed
The insurer failed to establish timely and proper mailing of the IME scheduling letters, defeating summary judgment on its nonappearance defense. The provider appealed an order dismissing its action for assigned no-fault benefits. Without proof that the letters were timely and properly mailed to the assignor, the insurer did not establish properly scheduled IMEs or noncompliance with a condition precedent to coverage. Its attorney's reply affirmation could not cure the defect because the attorney lacked personal knowledge. In any event, evidence first submitted in reply could not cure deficiencies in the moving papers. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50375(U)
Provider prevailed
The insurer failed to prove nonappearance at two EUOs because its witness did not account for the time specified for the second EUO. Following a nonjury trial, the provider recovered assigned no-fault benefits. The Appellate Term, Second Department, found timely mailing of the scheduling letters established despite apparent nondelivery of certified copies, but affirmed the judgment on the provider's alternative ground. The witness checked for the assignor at 11:30 a.m. and for another 15 minutes; the second letter specified 11:00 p.m. The proof established nonappearance at neither 11:00 a.m. nor 11:00 p.m. Because nonappearance at the scheduled time was unproved, the court left open the effect of the apparent a.m./p.m. typographical error.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50367(U)
Insurer prevailed
A defense that no policy covers the claimed no-fault benefits is not precluded by defects in the insurer's denial or its timeliness. The provider sought assigned first-party no-fault benefits under a policy that the insurer established was a workers' compensation policy. That policy did not cover the claim, and the provider neither demonstrated an applicable automobile insurance policy issued by the insurer nor otherwise raised a triable issue of fact. Under Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., the lack-of-coverage defense remained available regardless of denial issues. 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.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50371(U)
Split result
The insurer lacked personal-knowledge proof of EUO nonappearance, but the provider failed to establish that its denial was legally meritless. The insurer relied on an affirmation from a partner in the law firm retained to conduct the provider's EUOs. That affirmation did not supply proof from someone with personal knowledge of the alleged nonappearances, defeating the insurer's cross motion for summary judgment dismissing the complaint. The provider nevertheless failed to show attendance at either EUO and thus did not establish that the denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion, and denied that motion; the insurer's cross motion remained denied.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50366(U)
Insurer prevailed
A timely verification request tolls the insurer's time to pay or deny the entire claim until all demanded verification is provided. The provider appealed summary judgment dismissing its action for assigned no-fault benefits. The insurer's moving papers established prima facie entitlement to dismissal of the second through tenth causes of action because it had not received the requested verification, rendering those claims premature. For the first cause of action, the insurer's claims representative's affidavit established prima facie that the services were properly denied under the workers' compensation fee schedule. The provider raised no triable issue concerning that defense. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50369(U)
Split result
The provider's owner's affidavit raised a triable issue as to receipt of requested verification, defeating summary judgment on prematurity. The insurer established timely mailing of its initial and follow-up verification requests and prima facie nonreceipt of the requested verification, supporting dismissal under 11 NYCRR 65-3.8 (a). The provider's opposing affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. That proof raised a factual issue as to whether the action for assigned no-fault benefits was premature. 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
Mar 16, 2016
2016 NY Slip Op 50370(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and the assignor's failure to attend the duly scheduled EUOs. The provider appealed dismissal of its action for assigned first-party no-fault benefits, challenging the insurer's showing. The proof established noncompliance with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The insurer also timely denied the claims on that ground, and the provider raised no triable issue in opposition. The Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 16, 2016
2016 NY Slip Op 50373(U)
Split result
The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment. The insurer sought dismissal of the assigned no-fault claim based on the assignor's IME nonappearance, but its moving papers did not establish timely denial. The provider's supporting affidavit likewise failed to show that the claim had not been timely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. Neither side established entitlement to judgment. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Mar 15, 2016
2016 NY Slip Op 50324(U)
Insurer prevailed
The provider failed to rebut a sworn peer review establishing a factual basis and medical rationale for lack of medical necessity. The insurer moved for summary judgment dismissing the assigned no-fault complaint or, alternatively, to compel an examination before trial. The Civil Court denied the motion and limited trial issues under CPLR 3212 (g). The provider's opposing affidavit did not meaningfully address or sufficiently rebut the peer review's conclusions. Because the provider also did not challenge the finding that the insurer was otherwise entitled to judgment, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the summary judgment branch of the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Mar 15, 2016
2016 NY Slip Op 50329(U)
Insurer prevailed
The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors. The provider sought assigned no-fault benefits and challenged the propriety of the insurer's fee-schedule reductions both in the Civil Court and on appeal. The insurer relied on the schedule for chiropractors rendering the same services as acupuncturists. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, found that the insurer demonstrated full payment under that schedule and affirmed the order granting its motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 15, 2016
2016 NY Slip Op 50330(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and the assignor's nonappearance, supporting dismissal of the no-fault claim. The provider moved for summary judgment, and the insurer cross-moved based on a timely denial for failure to attend EUOs. The insurer's proof established that the EUOs were duly scheduled and that the assignor failed to attend, demonstrating noncompliance with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable issue in opposition. 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
Mar 11, 2016
2016 NY Slip Op 50307(U)
Provider prevailed
The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed. The IME examiners lacked demonstrated personal knowledge of nonappearance on the first, second, and fourth through seventh causes of action; fee-schedule and duplicate-billing grounds also failed for those claims. For the sixth cause, the provider's owner's affidavit created a presumption of timely mailing and receipt, raising a factual issue concerning the 45-day submission requirement under 11 NYCRR 65-2.4 (c) and 65-3.3 (e). The insurer's conclusory denial of receipt did not support dismissal of the third cause. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50319(U)
Insurer prevailed
The provider's objections to the EUO scheduling letters were not heard because it did not claim to have responded to the requests. The insurer established timely and proper mailing of the scheduling letters and denials based on the provider's EUO nonappearances. The Civil Court found nonappearance established but granted the provider summary judgment and denied the insurer's cross motion because it considered the letters defective. Under the circumstances, the provider's failure to claim any response foreclosed its objections to the letters. The Appellate Term, Second Department, reversed, denied the provider's motion, and granted the insurer's cross motion for summary judgment dismissing the complaint; it passed on no other issue.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50321(U)
Insurer prevailed
The provider failed to establish a reasonable excuse or potentially meritorious opposition when seeking vacatur of a default summary judgment order. Counsel's heavy workload and failure to scan the briefing schedule were vague, unsubstantiated claims of law office failure; the provider also left unexplained its one-year delay after receiving notice of entry. The insurer's affidavits and certified transcripts established proper, timely mailing of EUO letters and two nonappearances. Vacatur required a motion under CPLR 5015 (a) (1), rather than reargument, and CPLR 2221 (a) (1) did not require submission to the judge who issued the default order. The Appellate Term, Second Department, affirmed denial of the provider's motion on grounds different from those relied on by the Civil Court.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50318(U)
Provider prevailed
The insurer's summary judgment motion based on late claim submission was denied, and that denial was affirmed. The Appellate Term, Second Department, stated that the provider's billing supervisor's affidavit raised a triable issue as to compliance with the 45-day claim submission requirement in 11 NYCRR 65-1.1. The insurer therefore failed to establish late submission as a matter of law.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50309(U)
Insurer prevailed
The insurer established timely mailing of its denial and full payment under the fee schedule for acupuncture performed by chiropractors. The provider sought assigned first-party no-fault benefits for acupuncture services. The insurer moved for summary judgment on the ground that it had properly reimbursed those services using the workers' compensation fee schedule applicable to chiropractors rendering the same services as acupuncturists. The provider contested timely mailing of the denial both below and on appeal, but the insurer established mailing and demonstrated full payment under that schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50316(U)
Provider prevailed
The insurer failed to prove timely denial mailing because its adjuster's affidavit contradicted the stated employment timeline. The adjuster asserted personal preparation and mailing of the denial in May 2012, but also stated that employment as the insurer's claims adjuster began in July 2012. The affidavit therefore had no probative value. In the provider's assigned no-fault action, the insurer consequently failed to establish that its lack-of-medical-necessity defense escaped preclusion under Presbyterian Hosp. in City of NY v Maryland Cas. Co. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion; it did not address the provider's prima facie showing because the insurer raised no appellate issue concerning it.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50310(U)
Provider prevailed
The insurer failed to establish duly scheduled IMEs because its affidavit did not adequately prove mailing of the notices. In the provider's assigned no-fault action, the insurer obtained summary judgment dismissing the complaint on an IME nonappearance defense. Its supporting affidavit did not sufficiently describe a standard office practice or procedure ensuring that scheduling letters were properly addressed and mailed. Without proof of proper scheduling, the insurer could not demonstrate that the assignor failed to attend duly scheduled IMEs under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, reversed the order and denied the insurer's motion, allowing the provider's claims to proceed.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50308(U)
Split result
The insurer failed to prove proper mailing of IME notices, and the provider failed to establish prima facie entitlement to summary judgment. The insurer's affidavit did not sufficiently describe an office practice ensuring that scheduling letters were properly addressed and mailed. It therefore failed to establish duly scheduled IMEs or the assignor's nonappearance. The provider's affidavit, in turn, did not establish either that the claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion dismissing the complaint and otherwise affirmed, leaving denial of the provider's cross motion intact. Neither party obtained summary judgment.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50311(U)
Provider prevailed
The insurer failed to prove timely mailing of the initial and follow-up EUO letters, defeating summary judgment on nonappearance. The insurer sought dismissal of the provider's action for assigned no-fault benefits, alleging that it had timely and properly denied the claims because the assignor failed to appear for duly scheduled EUOs. Its supporting papers did not establish timely mailing of either set of scheduling letters. Consequently, it did not demonstrate that the EUOs were properly scheduled or that the assignor failed to attend duly scheduled EUOs. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50312(U)
Provider prevailed
The insurer failed to establish timely mailing of the IME scheduling letters and therefore did not prove that the IMEs were properly scheduled. The provider sought assigned first-party no-fault benefits, and the insurer moved for summary judgment dismissing the complaint based on the assignor's failure to appear for IMEs. Although the insurer asserted timely and proper denial on that ground, its motion papers did not establish timely mailing of the scheduling letters. Without that proof, the nonappearance defense did not support summary judgment. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50313(U)
Split result
A provider's prima facie case does not require proof that supplies were actually delivered to the assignor or identification of who delivered them. The insurer's delivery objection therefore failed under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. and Fair Price Med. Supply Corp. v Travelers Indem. Co.; no other prima facie issue was raised, and the court did not address that determination further. Timely denials and triable medical-necessity and fee-schedule issues defeated summary judgment on the third and fourth causes of action. Timely mailing was unproved for the first and second. The Appellate Term, Second Department, modified the order to deny the provider summary judgment on the third and fourth causes while affirming its award on the first and second.
Appellate Term, Second Department
Mar 11, 2016
2016 NY Slip Op 50314(U)
Insurer prevailed
The insurer's employee affidavit established that no policy it issued covered the vehicle on the accident date. The provider moved for summary judgment to recover assigned first-party no-fault benefits, and the insurer opposed and cross-moved to dismiss for lack of coverage. The employee described the details of a records search and stated that no policy covering the vehicle on the relevant date was found. The affidavit established prima facie that the claim did not arise from a covered incident, and the provider raised no triable issue. 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
Mar 11, 2016
2016 NY Slip Op 50315(U)
Insurer prevailed
The provider's challenges to proof of EUO mailing and nonappearance failed because mailing was established and the wrong proof was challenged. The provider appealed summary judgment dismissing its assigned no-fault action based on the assignor's failure to attend duly scheduled EUOs. The insurer's employee affidavit sufficiently established mailing of the scheduling letters. The provider also attacked an affirmation from the managing partner of the law firm retained to conduct the EUOs, but that affirmation was not the proof the insurer submitted to establish nonappearance. Finding no basis to disturb the ruling, the Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 7, 2016
2016 NY Slip Op 50464(U)
Provider prevailed
The insurer failed to establish proper and timely mailing of the EUO notices and denial forms supporting its nonappearance defense. The provider sued for assigned first-party no-fault benefits, and the insurer sought summary judgment based on the assignor's alleged failure to appear for duly scheduled EUOs. The Appellate Term, Second Department, found the insurer's showing insufficient, including its proof of mailing, under Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc. and St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 3, 2016
2016 NY Slip Op 50463(U)
Insurer prevailed
The provider's renewal motion failed because a later decision did not constitute a change in law altering the prior determination. The provider sought leave to renew and reargue its opposition to the insurer's earlier summary judgment motion dismissing an assigned no-fault action. It relied on Alev Med. Supply, Inc. v Allstate Prop. & Cas. Ins. Co., decided after the earlier motion. The Appellate Term, Second Department, found no qualifying change in law under CPLR 2221 (e) (2) and affirmed the denial of renewal. It dismissed the appeal from the denial of reargument because that ruling was not appealable. The insurer prevailed, and the prior determination remained undisturbed.
Appellate Term, Second Department
Mar 1, 2016
2016 NY Slip Op 50257(U)
Provider prevailed
The insurer failed to establish valid cancellation of a Pennsylvania policy because its litigation specialist's affidavit was missing. The insurer sought summary judgment dismissing the provider's assigned no-fault action based on cancellation for nonpayment of premiums. Although the motion purported to include the specialist's affidavit, only defense counsel's affirmation and accompanying documents were submitted. Without the affidavit, the insurer failed to demonstrate full compliance with Pennsylvania's cancellation requirements and did not establish prima facie entitlement to dismissal. The Appellate Term, Second Department, affirmed the order denying the insurer's motion and declined the provider's request to search the record and award it summary judgment.
Appellate Term, Second Department
Mar 1, 2016
2016 NY Slip Op 50255(U)
Insurer prevailed
A provider's restoration motion failed because counsel did not satisfactorily explain the witness's unavailability for trial. The action was marked off the trial calendar, and the provider moved to restore it five days later. Under 22 NYCRR 208.14 (c), a motion made within one year requires an affidavit from a person with firsthand knowledge explaining why the action was stricken and showing present readiness for trial. Counsel's bare assertion did not identify the witness or explain the unavailability. The Appellate Term, Second Department, affirmed denial, correcting the Civil Court's erroneous reliance on CPLR 3404, which applies only in Supreme or County Court, and expressly declining to reach the remaining contentions.
Appellate Term, Second Department
Mar 1, 2016
2016 NY Slip Op 50259(U)
Provider prevailed
The insurer's conflicting accident dates raised a factual issue as to whether a default declaratory judgment barred the provider's claim. The provider's complaint concerned a March 17, 2012 accident, while the Supreme Court judgment declared no duty to pay claims arising from an April 2, 2012 collision because of IME nonappearance. The insurer's own moving papers referred to both dates. On its CPLR 3212 motion, it therefore failed to establish that the no-fault claim arose from the same transaction addressed in the declaratory judgment, as required for res judicata. An assignment form first submitted in reply was not considered. The Appellate Term, Second Department, affirmed the order denying the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 1, 2016
2016 NY Slip Op 50254(U)
Split result
The insurer raised a factual issue over fraudulent policy procurement but failed to establish material misrepresentation as a matter of law. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignor's alleged use of a false residence address to obtain lower premiums. The insurer's opposition established timely mailing of its denial and raised a triable issue about the address, defeating the provider's motion without a determination of the provider's prima facie case. Its own cross motion failed because admissible proof did not eliminate factual issues concerning material misrepresentations. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed.
Appellate Term, Second Department
Mar 1, 2016
2016 NY Slip Op 50258(U)
Insurer prevailed
The provider's no-fault action was barred by a default declaratory judgment establishing that the insurer owed no payment for the accident. The insurer initially cross-moved for summary judgment on an EUO nonappearance defense and raised res judicata in reply after obtaining the declaratory judgment. The defense could not have been pleaded in the answer or asserted in the initial motion because the declaratory action and judgment arose later. Taking judicial notice of the undisputed court records, the Appellate Term, Second Department, concluded that recovery would impair rights established by the declaratory judgment. It 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.
Trial court, Second Department
Mar 22, 2016
2016 NY Slip Op 50768(U)
Provider prevailed
The insurer failed to establish that the assignor fell within the exclusion for certain New York residents injured outside the state. The provider sued for assigned no-fault benefits, and the insurer sought summary judgment on the ground that the accident occurred in Georgia. Under 11 NYCRR 65-1.1 (j), the cited exclusion depended on residency and ownership of, or relationship to the owner of, a vehicle insured under another policy providing required New York no-fault coverage. The insurer established neither element. Its unsworn, uncertified police report was inadmissible to establish the accident location. The Civil Court, Kings County, denied the insurer's motion without prejudice.
Trial court, Second Department
Mar 22, 2016
2016 NY Slip Op 50769(U)
Split result
The insurer failed to establish its defense that it was not the proper no-fault insurer through admissible evidence. The Civil Court, Kings County, denied the insurer's summary judgment motion. Its attorney's affidavit did not establish the defense; an employee affidavit first submitted on reply could not supply new facts. Without the policy, the employee's account of its contents was hearsay, and an uncertified police report was inadmissible. The provider's summary judgment cross motion was denied without prejudice because it asserted that necessary discovery remained incomplete, implicating CPLR 3212 (f). The provider prevailed on its request to compel discovery: absent objections, the insurer had to supply responsive nonprivileged information and documents.
Trial court, Second Department
Mar 1, 2016
2016 NY Slip Op 50297(U)
Insurer prevailed
The provider failed to establish grounds to vacate an award denying reimbursement because the no-fault policy was exhausted. The arbitrator found late partial denials but declined to award unpaid acupuncture charges beyond policy limits, and the master arbitrator sustained that determination. The provider argued that the priority-of-payment rule in 11 NYCRR 65-3.15 required reimbursement. The Supreme Court, Kings County, found a reasonable basis for the master arbitrator's interpretation that payment beyond policy limits exceeded arbitral authority. It distinguished Nyack Hosp. v General Motors Acceptance Corp., which involved a de novo court proceeding, and found the asserted legal error insufficient under the limited review standard. The court denied vacatur under CPLR 7511 (b) and confirmed the award under CPLR 7511 (e), favoring the self-insurer.
