Appellate Division, Second Department
Apr 13, 2016
2016 NY Slip Op 02773
Insurer prevailed
A party cannot appeal an order or judgment entered upon its own default under CPLR 5511. In a declaratory judgment action concerning the provider's right to payment of certain no-fault claims, the provider failed to produce a deposition witness or disclose documents by the court-ordered deadline. The Supreme Court struck its answer and declared that it had no right to payment for those claims. The Appellate Division, Second Department, dismissed the provider's appeal because the order and judgment had been entered upon its default.
Appellate Term, Second Department
Apr 25, 2016
2016 NY Slip Op 50698(U)
Insurer prevailed
The provider could not challenge the reasons for EUO requests in litigation after failing to object during claims processing. The insurer established the provider's nonappearance at two duly scheduled EUOs and proper tolling under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The provider had demanded a flat upfront attendance fee rather than reimbursement for lost earnings and reasonable transportation expenses under 11 NYCRR 65-3.5 (e). Because it had not challenged the requests' reasonableness when made, related discovery was unnecessary to oppose summary judgment under CPLR 3212 (f). The Appellate Term, Second Department, affirmed dismissal on the insurer's motion and denial of the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery.
Appellate Term, Second Department
Apr 25, 2016
2016 NY Slip Op 50699(U)
Insurer prevailed
The provider failed to establish either an untimely denial or a timely denial that was legally insufficient. In its action for assigned no-fault benefits, the provider sought summary judgment but did not show that the insurer failed to deny the claim within 30 days, as required under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., or that a timely denial was conclusory, vague or without merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion. It declined the insurer's request to search the record and grant summary judgment dismissing portions of each claim.
Appellate Term, Second Department
Apr 25, 2016
2016 NY Slip Op 50700(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearances was granted, and the order was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery. It relied entirely on the reasons stated in the companion appeal decided the same day, No. 2014-1991 K C.
Appellate Term, Second Department
Apr 25, 2016
2016 NY Slip Op 50701(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearances was granted, and the order was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery. It relied entirely on the reasons stated in the companion appeal decided the same day, No. 2014-1991 K C.
Appellate Term, Second Department
Apr 25, 2016
2016 NY Slip Op 50702(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearances was granted, and the order was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery. It relied entirely on the reasons stated in the companion appeal decided the same day, No. 2014-1991 K C.
Appellate Term, Second Department
Apr 19, 2016
2016 NY Slip Op 50649(U)
Provider prevailed
The provider's owner affidavit raised a triable issue about timely submission of the claim despite the insurer's evidence of nonreceipt. The insurer obtained summary judgment dismissing the assigned no-fault action on the ground that it had never received the claim. Although its claims examiner's affidavit established nonreceipt prima facie, the provider's opposition supplied an affidavit sufficient to create a presumption of timely mailing and receipt under Residential Holding Corp. v Scottsdale Ins. Co. The competing proof left a factual issue concerning whether the claim had been timely submitted. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment.
Appellate Term, First Department
Apr 18, 2016
2016 NY Slip Op 50603(U)
Provider prevailed
The insurer's peer review reports failed to establish lack of medical necessity for the acupuncture services at issue. Although the insurer proved timely mailing of its denials and submitted admissible reports, the reviewer merely asserted that documentation lacked supportive information for one treatment period. That assertion did not eliminate triable issues concerning medical necessity. The reviewer also did not address a later service date or conclude that the assignor's condition could never warrant further acupuncture, so the report could not support denial of that claim under Shirom Acupuncture, P.C. v Kemper Independence Ins. Co. The Appellate Term, First Department, reversed the order granting the insurer summary judgment, denied its motion and reinstated the provider's complaint.
Appellate Term, First Department
Apr 18, 2016
2016 NY Slip Op 50604(U)
Insurer prevailed
The insurer established timely EUO requests, proper mailing and the assignor's nonappearance at two scheduled EUOs. Its EUO letters demonstrated compliance with the request periods in 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Counsel assigned to conduct the EUO was competent to establish nonappearance under Hertz Corp. v Active Care Med. Supply Corp. The provider did not specifically deny the nonappearances or raise a triable issue concerning them, the mailing of the notices or their reasonableness. The Appellate Term, First Department, reversed the order denying the insurer and its third-party administrator summary judgment and granted their motion dismissing the provider's assigned no-fault complaint.
Appellate Term, First Department
Apr 18, 2016
2016 NY Slip Op 50606(U)
Insurer prevailed
The insurer established fee schedule reductions for certain acupuncture claims and payment of the remaining claims under a settlement. The provider sought the difference between its billed charges and payments made under the workers' compensation fee schedule or settlement agreement. The insurer showed timely denials based on charges exceeding the applicable schedule, and the provider raised no triable issue concerning denial mailing or fee calculations. The Appellate Term, First Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion. The provider's remaining contentions were without merit or abandoned because its appellate brief articulated no specific arguments supporting them.
Appellate Term, First Department
Apr 13, 2016
2016 NY Slip Op 50537(U)
Split result
The insurer's documentary submissions left triable issues about whether it properly denied the provider's initial-evaluation claim. The Appellate Term, First Department, modified the order made on reargument to reinstate one no-fault claim and otherwise affirmed summary judgment dismissing the complaint. Its disposition identified the reinstated claim as CPT code 99302, while its reasoning identified the claim as CPT code 99203. Separately, Civil Court properly exercised discretion under CPLR 2001 to permit correction of a defect in the form of the insurer's acupuncturist/chiropractor IME report, because the correction caused no prejudice.
Appellate Term, Second Department
Apr 11, 2016
2016 NY Slip Op 26125
Provider prevailed
A Michigan policy's rescission does not defeat no-fault benefits for an innocent third party under Michigan's innocent third party rule. The insurer sought dismissal based on a Michigan default judgment declaring its policy void from inception for procurement fraud or misrepresentation. Following Gagnon v Citizens Ins. Co., the Appellate Term, Second Department, concluded that Titan Ins. Co. v Hyten had not abrogated the rule for no-fault benefits. The court also found jurisdiction through service on the Superintendent of Insurance under Insurance Law § 1212 (a) and (b), because the authorized insurer faced a New York cause of action. It reversed the order, denied the coverage branch of the insurer's summary judgment motion, and remitted the unresolved medical necessity branch for determination.
Appellate Term, Second Department
Apr 8, 2016
2016 NY Slip Op 50594(U)
A no-fault provider need not submit an executed assignment of benefits to establish prima facie entitlement to recovery. At a jury trial, Civil Court repeatedly excluded the provider's purported assignment and granted the insurer judgment under CPLR 4401 because the assignment was not in evidence. The Appellate Term, Second Department, reversed denial of the provider's motion to vacate that ruling, granted vacatur, denied the insurer's motion and ordered a new trial. The CPLR 4401 motion was premature because the provider had not rested. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the assignment ruling was also erroneous: the insurer first had to demonstrate that it timely and properly raised an assignment issue.
Appellate Term, Second Department
Apr 8, 2016
2016 NY Slip Op 50596(U)
Insurer prevailed
The insurer established exhaustion of a Massachusetts policy's medical coverage before one claim was mailed and payment of the other two claims. Massachusetts law governed the substantive issues. Under Massachusetts General Laws chapters 90, § 34A, and 175, § 113C, and the policy, the available medical expense coverage totaled $13,000. Employee affidavits, the policy and a payment log established the coverage limit; the provider's owner affidavit showed mailing of the first claim after exhaustion. The insurer also proved payment of the second and third claims, and the provider raised no 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
Apr 6, 2016
2016 NY Slip Op 50557(U)
Insurer prevailed
The injured claimant failed to show a meritorious cause of action or reasonable excuse for the multi-year delay in restoring the action. A prior appeal required those showings when the claimant sought restoration in response to a 90-day notice under CPLR 3216. That ruling was law of the case, and the claimant could not avoid it by renaming the motion as one to place the action on the trial calendar. The claimant also identified no overlooked or misapprehended matter under CPLR 2221 (d) (2). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering on reargument to vacatur of the insurer's opposition default and granting dismissal under CPLR 3216 (e).
Trial court, Second Department
Apr 11, 2016
2016 NY Slip Op 26123
Split result
A provider's prima facie case for a "By Report" claim includes the fee schedule information needed to value the services. The Civil Court, Kings County, found no showing that the provider supplied Surgical Ground Rule No. 10 information for code 20999 under the fee schedule adopted by 11 NYCRR 68.1 (a). That omission left the claim incomplete under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. The court granted the insurer summary judgment dismissing that claim, but granted the provider summary judgment for codes 20553 and 99215 because the denial exceeded 30 days and precluded medical necessity. Although 11 NYCRR 65-3.8 (g) (1) makes the fee schedule defense nonprecludable, it does not generally require fee schedule compliance as prima facie proof.
