Court of Appeals
Jun 14, 2016
2016 NY Slip Op 04658
A health insurer cannot obtain direct reimbursement from a no-fault insurer as an assignee under 11 NYCRR 65-3.11 (a). The health insurer paid medical bills allegedly payable under the injured claimant's automobile policy and sued after receiving an assignment of the claimant's rights. The Court of Appeals affirmed dismissal under CPLR 3211 (a) (7), in favor of the no-fault insurer. The majority concluded that the claimant had already assigned no-fault rights to the medical providers and had no remaining rights to assign, and that the regulation permits direct payment only to the insured or an assignee providing health care services. A separate concurrence rejected equitable subrogation; the dissent would have allowed that claim to proceed.
Appellate Division, Second Department
Jun 22, 2016
2016 NY Slip Op 04916
Insurer prevailed
The insurers established grounds to enjoin a provider's no-fault proceedings pending a licensing and control challenge. Evidence concerning ownership and control of a radiology-only practice supported likely ineligibility under 11 NYCRR 65-3.16 (a) (12) and Business Corporation Law § 1507 (a). The owner's admitted lack of radiology competence and investigator evidence supported likely success; numerous pending proceedings threatened inconsistent results, and equities favored the insurers. The Appellate Division, Second Department, affirmed the preliminary injunction under CPLR 6301 barring new reimbursement proceedings and staying pending ones, and denial of arbitration and a stay under CPLR 7503 (a). It dismissed the appeal concerning the injunction against a different provider for lack of aggrievement under CPLR 5511, and otherwise affirmed the order insofar as reviewed.
Appellate Division, First Department
Jun 9, 2016
2016 NY Slip Op 04446
Insurer prevailed
⚠ Not followed by Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C. (2018 NY Slip Op 07850)
EUO requests made before receipt of a claim form are not subject to the verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6. The insurer requested the assignor's initial EUO before the provider prepared its claim form. After the claim was submitted, the insurer sent follow-up scheduling letters seven days after each nonappearance, satisfying 11 NYCRR 65-3.6 (b). The assignor never appeared. The Appellate Division, First Department, reversed the order, insofar as appealed from, granted the insurer summary judgment and declared that it owed no payment for the provider's claim. Under 11 NYCRR 65-1.1, nonappearance breached a condition precedent to coverage, without requiring a timely disclaimer. A dissent found the insurer's proof of claim receipt insufficient.
Appellate Division, Second Department
Jun 8, 2016
2016 NY Slip Op 04421
Provider prevailed
The insurer's petition to stay uninsured motorist arbitration was time-barred because its ATV objection fell within CPLR 7503 (c). The insurer commenced the proceeding more than 20 days after service of the claimants' notices of intention to arbitrate. Its contention that the accident involved an all-terrain vehicle concerned compliance with policy conditions, rather than the absence of an agreement to arbitrate, and therefore did not escape the statutory deadline. The notices complied with CPLR 7503 (c), and the insurer failed to substantiate its claim that service at a no-fault processing address was deceptive or prevented a timely challenge. The Appellate Division, Second Department, reversed, denied the petition and dismissed the proceeding as time-barred, favoring the claimants; the remaining contentions were not reached.
Appellate Term, First Department
Jun 27, 2016
2016 NY Slip Op 50978(U)
Split result
The insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright. The Appellate Term, First Department, modified the summary judgment order by reinstating claims for services from July 1 through July 8, 2010, and otherwise affirmed. Dismissal of claims for July 12 through August 31, 2010, stood because the IME report supplied a medical rationale against further treatment. Counsel's affirmation without medical evidence and the assignor's subjective pain complaints did not raise a triable issue. For the earlier services, partial fee-schedule payments were proper, but the court rejected the licensing objection to CPT 97039 and found insufficient proof that outright denials complied with Physical Medicine Ground Rule 11.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51026(U)
Insurer prevailed
A provider that does not respond to EUO requests cannot challenge their reasonableness in the ensuing litigation. The insurer established the provider's failure to appear for two duly scheduled EUOs, and the provider neither alleged nor proved any response to the requests. Discovery concerning their reasonableness was therefore unnecessary to oppose summary judgment, and no outstanding discovery warranted denial under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment or alternative relief striking the answer and affirmative defenses and compelling discovery. The remaining appellate arguments were moot or lacked merit.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51013(U)
Insurer prevailed
The provider's request for findings limiting the issues for trial under CPLR 3212 (g) was declined on appeal. After both sides' summary judgment motions were denied for triable issues, the provider challenged only the failure to establish certain facts for the action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, citing prior decisions without further explanation.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51031(U)
Insurer prevailed
The insurer established a reasonable law-office-failure excuse and a meritorious defense warranting vacatur of its summary judgment default. After the insurer failed to oppose the provider's motion, the Civil Court granted the provider summary judgment and denied the insurer's subsequent vacatur motion. Under CPLR 5015 (a) (1) and CPLR 2005, detailed, credible explanations from counsel and a paralegal supplied a reasonable excuse. The insurer's separate summary judgment papers and the order resolving that motion demonstrated a meritorious defense, with reference to the companion appeal decided the same day, No. 2013-2390 K C. The Appellate Term, Second Department, reversed, granted vacatur, and denied the provider's summary judgment motion.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51012(U)
Insurer prevailed
MVAIC's summary judgment dismissing the provider's complaint for claim submission beyond 45 days was affirmed. The Appellate Term, Second Department, rejected the provider's sole appellate argument, stating that MVAIC sufficiently established failure to submit the claim forms within 45 days after services were rendered. It relied on 11 NYCRR 65-1.1 and Bajaj v MVAIC.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51007(U)
Insurer prevailed
An unvacated default order declaring noncoverage is a conclusive final determination that can bar a provider's action under res judicata. Before the no-fault action began, the insurer instituted a declaratory judgment action against the assignor and providers, including the plaintiff. The resulting default order declared the assignor ineligible for benefits and relieved the insurer of obligations on the identified claims. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion to dismiss. A contrary judgment would destroy or impair rights established by the declaratory order, and its default status did not defeat preclusion. The remaining arguments lacked merit or were unpreserved.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51010(U)
Provider prevailed
The insurer's summary judgment motion as to 50 claims was denied because it failed to establish tolling of its time to pay or deny. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding that the moving papers did not conclusively demonstrate tolling. The appeal concerned only the remaining 50 causes of action; dismissal of the other 50 was not challenged.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51014(U)
Insurer prevailed
The insurer established that a noticed deposition of the provider was material and necessary to its defense. In the provider's action for assigned no-fault benefits, the Civil Court denied the branch of the insurer's motion seeking to compel an examination before trial. The insurer's moving papers established service of the examination notice and that the examination was material and necessary under CPLR 3101 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted that branch of the insurer's motion.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51028(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearance was granted, and the order was affirmed on appeal. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2014-2016 K C, also affirming denial of the provider's cross motion for summary judgment or alternative relief striking the answer and defenses and compelling discovery.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51029(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearance was granted, and the order was affirmed on appeal. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2014-2016 K C, also affirming denial of the provider's cross motion for summary judgment or alternative relief striking the answer and defenses and compelling discovery.
Appellate Term, Second Department
Jun 23, 2016
2016 NY Slip Op 51036(U)
Insurer prevailed
The assignor's appearance at an EUO did not defeat the insurer's motion because the parties mutually agreed to reschedule it. The insurer sought summary judgment based on nonappearances at the initial and rescheduled EUOs. Although the assignor attended the intervening appointment, the insurer's moving papers established that the parties agreed, at the assignor's request, to adjourn it so counsel could attend. The providers' appellate arguments were limited to what occurred at that intervening appointment. The Appellate Term, Second Department, rejected their challenge and affirmed the order granting the insurer summary judgment dismissing the complaint and denying the providers' cross motion; their remaining contention lacked merit.
Appellate Term, Second Department
Jun 22, 2016
2016 NY Slip Op 50997(U)
Insurer prevailed
The provider failed to show a timely objection to EUO requests and could not challenge their reasonableness in litigation. The insurer established nonappearance at two duly scheduled EUOs. The provider attached an objection letter without alleging or proving that it had sent it; the letter was dated and marked sent two days after the second nonappearance. Because the provider did not timely object during claims processing, discovery about the requests' reasonableness was unnecessary and did not warrant denial under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment and denying the provider's requests for summary judgment, striking the answer and defenses, and compelling discovery.
Appellate Term, Second Department
Jun 22, 2016
2016 NY Slip Op 51000(U)
Split result
The insurer failed to establish its fraudulent-procurement defense, and the provider raised a factual issue about outstanding verification. For the first three causes of action, the insurer failed to establish timely mailing of EUO scheduling letters to toll the denial period or that the assignor's address misrepresentation was material. For the fourth through sixth causes of action, the insurer showed timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a), but the provider's owner's affidavit raised a presumption of mailing and receipt. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion. Denial of the provider's motion remained intact because it proved neither untimely denials nor timely denials deficient as a matter of law.
Appellate Term, Second Department
Jun 22, 2016
2016 NY Slip Op 51001(U)
Split result
The insurer's cross motion for summary judgment based on fraudulent policy procurement was denied on appeal. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion, leaving denial of the provider's summary judgment motion intact, for the reasons stated in the companion appeal decided the same day, No. 2014-2469 Q C; the defense alleged an address misrepresentation to obtain a lower premium.
Appellate Term, First Department
Jun 20, 2016
2016 NY Slip Op 50942(U)
Provider prevailed
The insurer failed to provide a reasonable excuse for its two-year delay in answering because its affidavit lacked personal knowledge. The claims representative stated that the insurer's computer system contained no record of the summons and complaint, but worked at a different office and did not demonstrate knowledge of the procedures for handling process at the office that received it. The affidavit therefore did not establish that clerical error caused the papers to be overlooked. The Appellate Term, First Department, reversed the order granting vacatur, denied the insurer's motion, and reinstated the provider's default judgment. Without a reasonable excuse, the court did not reach the existence of a meritorious defense.
Appellate Term, First Department
Jun 15, 2016
2016 NY Slip Op 50905(U)
Insurer prevailed
The provider failed to justify submitting claims more than a year after services, despite initially sending them to MVAIC by mistake. The insurer established timely denials based on submission beyond the period allowed by 11 NYCRR 65-2.4 (c). Although the mistaken submission could justify the initial delay under 11 NYCRR 65-3.5 (l), the provider offered no competent proof of when MVAIC denied the claims or when it learned the defendant was the proper carrier. It therefore failed to raise a triable issue concerning the subsequent delay. Its own submissions also showed that the insurer considered and rejected the excuse. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's no-fault claims.
Appellate Term, First Department
Jun 15, 2016
2016 NY Slip Op 50904(U)
Insurer prevailed
The insurer established the assignor's repeated EUO nonappearance through an attorney's affirmation and a scheduling employee's affidavit. The Appellate Term, First Department, affirmed summary judgment dismissing the provider's no-fault action. The insurer proved timely and proper mailing of notices to the assignor and counsel, and failure to attend both the initial and rescheduled EUOs. Contrary to the provider's objection, the submissions contained sufficient facts demonstrating personal knowledge of the nonappearances. The provider did not specifically deny nonappearance or raise a triable issue concerning the notices' mailing or reasonableness. Remaining contentions were without merit or abandoned for lack of specific appellate argument.
Appellate Term, First Department
Jun 15, 2016
2016 NY Slip Op 50906(U)
Insurer prevailed
The insurer established proper, timely mailing of IME notices and the assignor's repeated nonappearance. Sworn affidavits from the scheduled examining chiropractor/acupuncturist and an employee of the third-party IME scheduler demonstrated personal knowledge of nonappearance and described office practices when an assignor failed to attend. The notices were mailed to the assignor and the assignor's attorney. The provider neither specifically denied nonappearance nor raised a triable issue concerning attendance, mailing, or the reasonableness of the notices. The Appellate Term, First Department, affirmed the Civil Court's order granting the insurer summary judgment dismissing the no-fault action and expressly reached no other issues.
Appellate Term, Second Department
Jun 15, 2016
2016 NY Slip Op 50961(U)
Insurer prevailed
The provider failed to establish a reasonable excuse for late opposition papers or explain its 10-month delay in seeking vacatur. The insurer obtained summary judgment on default after the provider served opposition 11 days after a stipulated deadline. Seeking relief under CPLR 5015 (a) (1), the provider's attorney asserted that a nontreating expert's medical-necessity affirmation became available shortly after the deadline. That explanation did not excuse the late filing, and counsel supplied no reason for the subsequent delay. The Appellate Term, Second Department, affirmed denial of the provider's unopposed vacatur motion. Because there was no excusable default, the court did not reach whether the provider had a potentially meritorious opposition.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50922(U)
Provider prevailed
The insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims. Although the insurer submitted an affirmation from the doctor scheduled to perform the IMEs, the doctor did not establish personal knowledge of the assignor's nonappearance. Each scheduling letter was mailed to a different address, also raising a factual issue as to whether the assignor received notice of both appointments. The Appellate Term, Second Department, reversed the Civil Court's order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50928(U)
Insurer prevailed
The insurer proved timely mailing and the provider's EUO nonappearances, while the provider failed to justify further discovery. Affidavits describing standard office practices established timely mailing of EUO scheduling letters and denials, and the attorney present to conduct the EUOs established nonappearance. Following Interboro Ins. Co. v Clennon, the court rejected challenges concerning justification for the requests and willful obstruction. Under CPLR 3212 (f), a party seeking discovery must show it may yield relevant evidence or that essential facts are exclusively within the movant's control. The provider did not identify information that could establish a triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50929(U)
Provider prevailed
The insurer's summary judgment motion asserting that the action was premature for failure to supply requested verification was denied on appeal. The Appellate Term, Second Department, reversed the order granting dismissal for the reasons stated in the companion appeal decided the same day, Great Health Care Chiropractic, P.C. v Hereford Ins. Co., No. 2013-1720 Q C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50930(U)
Insurer prevailed
The provider failed to rebut an affirmed IME report establishing a factual basis and medical rationale for lack of medical necessity. The insurer sought summary judgment dismissing the assigned no-fault action or, alternatively, an examination before trial. The Civil Court denied both parties' summary judgment requests and limited trial issues under CPLR 3212 (g) to medical necessity. The provider's opposing affidavit did not meaningfully address or sufficiently rebut the IME report's conclusions, and it 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
Jun 6, 2016
2016 NY Slip Op 50925(U)
Insurer prevailed
The insurer established outstanding verification for one claim and timely mailing of IME nonappearance denials for the remaining claims. The provider's action was premature as to the claim for which requested verification remained unreceived, and the provider raised no triable factual issue on that branch. For the remaining claims, the provider challenged mailing of the denials based on the assignor's failure to attend IMEs. The insurer established timely mailing, defeating that challenge. The provider's 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 on these respective grounds.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50919(U)
Insurer prevailed
MVAIC's summary judgment motion based on the three-year statute of limitations was granted on appeal. The Appellate Term, Second Department, reversed the denial of dismissal, stating that MVAIC met its initial burden to establish expiration of the limitations period and that the provider raised no factual issue concerning timeliness.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50909(U)
Split result
The insurer lacked personal-knowledge proof of EUO nonappearance, while the provider failed to show that the defense lacked legal merit. The insurer relied on an affirmation by a partner in the law firm retained to conduct the provider's EUOs, but its cross-moving papers contained no proof from someone with personal knowledge of nonappearance. The insurer therefore failed to establish entitlement to summary judgment dismissing the assigned no-fault action. The provider also failed to establish its prima facie entitlement because it did not demonstrate that the defense was meritless as a matter of law. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied it; denial of the insurer's cross motion remained intact.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50908(U)
Split result
Conflicting expert opinions defeated the insurer's medical-necessity summary judgment motion, but a provider examination was warranted. The Civil Court denied both parties' summary judgment motions and limited trial issues under CPLR 3212 (g) to medical necessity. On the insurer's appeal, the competing expert opinions raised a triable issue concerning the services, precluding dismissal. The insurer nevertheless established service of a notice for an examination before trial, which was material and necessary to its defense under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the branch compelling the provider's examination and otherwise affirmed. The provider defeated dismissal, while the insurer obtained discovery.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50900(U)
Split result
The insurer's medical-necessity summary judgment motion was premature pending disclosure, but it was entitled to examine the provider. The provider had requested but not received the peer review report, the assignor's medical documentation received by the insurer, and the materials supplied to the peer reviewer. Its possession of its own records did not overcome the disclosure gap, so dismissal was unavailable under CPLR 3212 (f). The insurer nevertheless established service of an examination notice, and the provider's examination before trial was material and necessary to the medical-necessity defense under CPLR 3101 (a). The Appellate Term, Second Department, modified the order to compel that examination and otherwise affirmed the denial of summary judgment, giving each side relief on a separate branch.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50899(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for failure to appear for duly scheduled EUOs was affirmed. The Appellate Term, Second Department, upheld the Civil Court's order for the reasons stated in the companion appeal, Vladenn Med. Supply Corp. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2013-2364 Q C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50910(U)
Split result
The provider's owner's affidavit raised a factual issue as to receipt of requested verification and whether the action was premature. The insurer established timely mailing of its initial and follow-up requests and made a prima facie showing that the requested verification had not been received. The owner's opposing affidavit created a presumption of mailing and receipt, precluding dismissal on prematurity grounds. The Appellate Term, Second Department, modified the Civil Court's order to deny the insurer's cross motion for summary judgment dismissing the assigned no-fault complaint and otherwise affirmed, leaving the provider's summary judgment motion denied.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50911(U)
Provider prevailed
The provider's affidavit raised a factual issue as to whether the insurer received requested verification and the action was premature. The insurer established timely mailing of its initial and follow-up verification requests and made a prima facie showing that it had not received the requested material. In opposition, an affidavit from the provider's owner was sufficient to create a presumption that the verification had been mailed to and received by the insurer. That competing proof precluded summary judgment on prematurity. The Appellate Term, Second Department, reversed the Civil Court's order and denied the insurer's motion dismissing the assigned no-fault complaint.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50912(U)
Provider prevailed
The insurer failed to prove the assignor's IME nonappearance through someone with personal knowledge. The insurer denied the provider's assigned no-fault claims on the ground that the assignor failed to appear for IMEs, and the Civil Court granted summary judgment dismissing the complaint. Because the insurer submitted no proof from someone with personal knowledge of nonappearance, it failed to establish prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion, expressly reaching no other issue.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50913(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignors' failure to appear for duly scheduled IMEs was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in the companion appeal, Longevity Med. Supply, Inc. v Praetorian Ins. Co., decided the same day, No. 2013-2143 K C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50914(U)
Provider prevailed
The insurer's summary judgment motion asserting that outstanding verification made the provider's action premature was denied on appeal. The Appellate Term, Second Department, reversed the Civil Court's order for the reasons stated in the companion appeal, Renelique v Travelers Ins. Co., decided the same day, No. 2013-1747 Q C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50916(U)
Split result
An insurer cannot cure deficient proof supporting its summary judgment cross motion by submitting a different affidavit in reply. The insurer relied initially on an affirmation from a partner in the law firm retained to conduct the assignor's EUOs, but that affirmation was not based on personal knowledge. The provider also failed to establish prima facie entitlement to summary judgment because it did not show that the insurer's defense lacked merit as a matter of law. The Appellate Term, Second Department, modified the Civil Court's order to deny the provider's motion and affirmed the denial of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50917(U)
Split result
The insurer failed to prove the assignor's EUO nonappearance through someone with personal knowledge. Although the insurer established timely mailing of EUO scheduling letters, its proof did not establish entitlement to summary judgment dismissing the assigned no-fault claim. The provider likewise failed to establish that the insurer had not denied the claim within 30 days or that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the Civil Court's order to deny the insurer's cross motion and affirmed the denial of the provider's motion for summary judgment.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50918(U)
Insurer prevailed
The provider's doctor's affidavit failed to rebut the insurer's peer review showing that the supplies lacked medical necessity. The Civil Court granted the insurer summary judgment dismissing the assigned no-fault complaint based on the assignor's IME nonappearance. The affirmed peer review supplied a factual basis and medical rationale for finding the supplies unnecessary, while the opposing affidavit did not meaningfully address its conclusions. The provider did not challenge the finding that the denial was timely mailed. The Appellate Term, Second Department, affirmed dismissal on medical necessity grounds and expressly declined to reach the provider's challenges to proof of IME nonappearance.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50920(U)
Split result
The insurer's summary judgment cross motion asserting outstanding verification was denied on appeal; the provider's motion remained denied. The Appellate Term, Second Department, modified the Civil Court's order and otherwise affirmed for the reasons stated in the companion appeal, Great Health Care Chiropractic, P.C. v Hereford Ins. Co., decided the same day, No. 2013-1720 Q C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50921(U)
Split result
The insurer's summary judgment cross motion asserting outstanding verification was denied on appeal; the provider's motion remained denied. The Appellate Term, Second Department, modified the Civil Court's order and otherwise affirmed for the reasons stated in the companion appeal, Great Health Care Chiropractic, P.C. v Hereford Ins. Co., decided the same day, No. 2013-1720 Q C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50923(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was denied on appeal. The Appellate Term, Second Department, reversed the Civil Court's order for the reasons stated in the companion appeal, Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2013-2132 K C.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50924(U)
Insurer prevailed
The insurer's affidavits established that the assignor failed to appear for duly scheduled IMEs. The provider sued to recover assigned no-fault benefits, and the Civil Court denied the insurer's summary judgment motion while limiting the trial issue under CPLR 3212 (g) to the assignor's nonappearance. Affidavits from the doctor and chiropractor who were to perform the IMEs sufficiently established nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider 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 insurer's motion dismissing the complaint.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50926(U)
Split result
The insurer's EUO proof lacked personal knowledge, and the provider failed to establish that the nonappearance defense lacked legal merit. The insurer cross-moved for summary judgment based on the assignor's EUO nonappearance, but the affirmation of a partner in the retained law firm was not based on personal knowledge and did not establish entitlement to dismissal. The provider likewise failed to make a prima facie showing that the defense lacked merit as a matter of law. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its motion, and denied that motion. Denial of the insurer's cross motion remained intact.
Appellate Term, Second Department
Jun 6, 2016
2016 NY Slip Op 50927(U)
Split result
The insurer's summary judgment cross motion asserting prematurity for failure to provide requested verification was denied on appeal. The Appellate Term, Second Department, modified the order to deny the cross motion, leaving denial of the provider's motion intact, for the reasons stated in the companion appeal decided the same day, Great Health Care Chiropractic, P.C. v Hereford Ins. Co., No. 2013-1720 Q C.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50863(U)
Provider prevailed
Conflicting affidavits about the examiners' locations prevented summary judgment on the assignors' alleged IME nonappearance. The insurer's doctor and chiropractor affidavits initially established nonappearance, but the provider submitted earlier affidavits in which those examiners placed themselves elsewhere when the IMEs were scheduled. Counsel's reply assertion that the discrepancies were typographical errors lacked sufficient personal knowledge to establish attendance at the correct location. The insurer also failed to articulate a sufficient basis to disturb CPLR 3212 (g) findings in the provider's favor, including its prima facie case. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50874(U)
Insurer prevailed
The provider failed at trial to establish MVAIC coverage because it did not prove submission of a notice of intention to make a claim. Coverage was the sole issue reserved for the nonjury trial. MVAIC's employee, the only witness, testified that no notice had been received. Under Insurance Law § 5208 (a) (1) and (3), timely notice is a condition precedent to payment, and compliance is necessary for covered-person status under Insurance Law § 5221 (b) (2). The provider's failure to establish submission defeated its prima facie case. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50865(U)
Provider prevailed
The insurer failed to prove the assignor's EUO and IME nonappearances through witnesses with personal knowledge. The Civil Court granted summary judgment dismissing the provider's assigned no-fault action based on failures to attend both types of examinations. The EUO branch lacked proof from anyone with personal knowledge of the assignor's absence. For the IME branch, neither doctor scheduled to conduct the examinations demonstrated personal knowledge of nonappearance. Each branch therefore failed on its own evidentiary showing. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50861(U)
Insurer prevailed
The provider failed to rebut an IME report establishing a factual basis and medical rationale for ending further treatment. The insurer supported its summary judgment motion with the examining chiropractor's sworn statement that further treatment lacked medical necessity. The provider's opposing affidavit did not meaningfully address or sufficiently rebut the IME report's conclusions. The Civil Court had denied dismissal and limited trial issues under CPLR 3212 (g) to medical necessity, and the provider did not challenge its 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 assigned no-fault complaint.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50858(U)
Provider prevailed
The provider's owner's affidavit raised a factual issue as to receipt of requested verification and whether the action was premature. The insurer established timely mailing of its initial and follow-up verification requests and made a prima facie showing that it had not received the requested material. The owner's opposing affidavit was sufficient to create a presumption that verification had been mailed to and received by the insurer. The conflicting proof precluded summary judgment dismissing the assigned no-fault complaint as premature. The Appellate Term, Second Department, affirmed the Civil Court's order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50859(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims on a full-payment fee schedule defense was affirmed. The Appellate Term, Second Department, upheld the Civil Court's order for the reasons stated in the companion appeal, Renelique v Tri State Consumers Ins. Co., decided the same day, No. 2013-1709 Q C.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50860(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims on a full-payment fee schedule defense was affirmed. The Appellate Term, Second Department, upheld the Civil Court's order for the reasons stated in the companion appeal, Renelique v Tri State Consumers Ins. Co., decided the same day, No. 2013-1709 Q C.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50862(U)
Provider prevailed
The insurer failed to prove IME nonappearance, and the provider raised factual issues on medical necessity and fee schedule defenses. The insurer sought dismissal of the entire no-fault complaint for IME nonappearance, alternatively seeking dismissal of two claims for lack of medical necessity and of each claim's amounts exceeding the workers' compensation fee schedule. Although the scheduled doctor's statements were properly sworn, they did not establish personal knowledge of nonappearance. The provider's owner's affidavits sufficiently raised triable issues on the alternative grounds. The Appellate Term, Second Department, affirmed the Civil Court's denial of the insurer's summary judgment motion.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50864(U)
Insurer prevailed
An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy. The provider sought summary judgment on assigned no-fault claims, and the insurer cross-moved to dismiss based on the assignor's failure to attend duly scheduled IMEs. Contrary to the provider's appellate contention, the insurer's affidavits sufficiently established nonappearance. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion and the grant of the insurer's cross motion dismissing the complaint. It declined to consider the provider's remaining argument because it was first raised on appeal.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50866(U)
Insurer prevailed
The provider's challenge to the specificity of the insurer's fee schedule denial failed, and its calculation argument was unpreserved. The insurer obtained summary judgment dismissing assigned no-fault claims on the ground that it had fully paid the provider under the workers' compensation fee schedule. Following A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., the Appellate Term, Second Department, rejected the contention that insufficient particularity in the denial precluded the fee schedule defense. It declined to consider the challenge to the insurer's reimbursement calculation because the provider first raised it on appeal, and affirmed the Civil Court's order.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50867(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims on a full-payment fee schedule defense was affirmed. The Appellate Term, Second Department, upheld the Civil Court's order for the reasons stated in the companion appeal decided the same day, No. 2013-1709 Q C, after the insurer asserted full payment under the workers' compensation fee schedule.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50868(U)
Insurer prevailed
The insurer's affidavit established timely and proper mailing of the denial based on the assignor's IME nonappearance. The provider moved for summary judgment on its assigned no-fault claims, and the insurer cross-moved to dismiss on the nonappearance defense. The Civil Court denied the provider's motion and granted the insurer's cross motion. On appeal, the mailing affidavit defeated the provider's challenge to the denial's timeliness. The provider's remaining contentions were speculative and improperly raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order in the insurer's favor.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50869(U)
Insurer prevailed
The provider's doctor's affidavit failed to rebut the insurer's peer review finding the supplies medically unnecessary. The Civil Court denied the insurer's summary judgment motion and limited the trial issue under CPLR 3212 (g) to medical necessity. The sworn peer review supplied a factual basis and medical rationale for finding the supplies unnecessary, while the opposing affidavit did not meaningfully address its conclusions. The provider 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 insurer's motion dismissing the assigned no-fault complaint.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50870(U)
Insurer prevailed
The insurer justified renewal by explaining an inadvertent error in the mail clerk's employment date in the original affidavit. The Civil Court had denied an unopposed summary judgment motion for lack of medical necessity because the affidavit raised a factual issue, then denied the unopposed renewal motion. Under CPLR 2221 (e) (2) and (3), the correcting affidavit supplied a reasonable justification for the earlier error. The insurer established timely mailing of verification requests and denials and submitted an unrebutted peer review with a factual basis and medical rationale. The Appellate Term, Second Department, reversed, granted renewal, vacated the prior order, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50871(U)
Provider prevailed
The insurer failed to raise a triable issue as to timely denial of the provider's no-fault claim. The Civil Court granted the provider summary judgment and denied the insurer's cross motion based on the provider's alleged EUO nonappearance. The insurer supplied no proof of nonappearance from someone with personal knowledge. Because it also failed to raise a factual issue concerning timely denial under 11 NYCRR 65-3.8 (a), its argument that the papers at least raised an issue about nonappearance was irrelevant. The Appellate Term, Second Department, affirmed, declining to review the provider's prima facie showing because the insurer did not challenge it.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50872(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge. The insurer sought summary judgment dismissing assigned no-fault claims, asserting timely and proper denials based on the provider's failure to attend duly scheduled EUOs. The provider opposed the motion on the ground, among others, that nonappearance had not been established. Because the insurer submitted no proof from someone with personal knowledge of nonappearance, the Appellate Term, Second Department, reversed the Civil Court's order and denied the insurer's motion. The appellate court expressly reached no other issue.
Appellate Term, Second Department
Jun 3, 2016
2016 NY Slip Op 50873(U)
Split result
The provider's opposing affidavit failed to rebut the insurer's IME report finding further treatment medically unnecessary. The affirmed report supplied a factual basis and medical rationale, while the provider's owner's affidavit did not meaningfully address its conclusions. The provider 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 insurer summary judgment dismissing the contested claims. Dismissal excluded the claim on which the provider had received an unappealed summary judgment award and the additional unpaid portions of other claims that the insurer conceded it owed.
Trial court, Second Department
Jun 30, 2016
2016 NY Slip Op 26211
Insurer prevailed
⚠ Reversed by Charles Deng Acupuncture, P.C. v Titan Ins. Co. (2022 NY Slip Op
50300(U))
Certified EUO no-show transcripts were admissible as business records at trial and established the provider's nonappearances. The insurer's witness described regular recordkeeping practices but had not attended the scheduled EUOs. The Civil Court, Kings County, admitted the transcripts under CPLR 4518 (a), crediting that foundation and the reliability supplied by attorneys' duties and stenographers' notarial certifications. Executive Law § 137 made the certificates presumptive evidence, subject to contradiction. The provider offered no contrary evidence. The court found timely mailing under 11 NYCRR 65-3.5 and 65-3.6 and nonappearance at least twice proved by a preponderance of the evidence, directed judgment for the insurer, and dismissed the complaint.
Trial court, Second Department
Jun 8, 2016
2016 NY Slip Op 26182
Provider prevailed
An insurer must supply specific objective justification for a provider's EUO when the provider timely requests that justification. The provider responded to an EUO demand concerning its corporate status and relationships by requesting the objective basis before the scheduled examination. The insurer refused, asserting it had no duty to disclose its justification, and denied the claims after two nonappearances. Applying 11 NYCRR 65-3.5 (e), the District Court, Suffolk County, found the initial and subsequent demands noncompliant. The provider's response was not an absolute refusal to appear; a sufficient response would have required attendance at a later EUO. The court denied the insurer's summary judgment motion and granted the provider's cross motion because two failures to attend properly scheduled EUOs were not established.
