Appellate Division, Second Department
Jul 6, 2016
2016 NY Slip Op 05354
Insurer prevailed
An insurer has 90 days after mailing of a qualifying master arbitration award to commence a de novo action over an AAA no-fault dispute. The award exceeded $5,000, and the insurer timely sued under Insurance Law § 5106 (c), CPLR 7511, and 11 NYCRR 65-4.10 (h) (2). Its failure to submit a master arbitration brief did not defeat exhaustion or a condition precedent because 11 NYCRR 65-4.10 (d) (8) requires a merits determination despite default. The Appellate Division, Second Department, reversed the provider's judgment, dismissed the first through fourth affirmative defenses under CPLR 3211 (b), and denied confirmation as academic. It remitted the insurer's unresolved summary judgment request and requests to dismiss the remaining challenged defenses and counterclaims for merits determinations.
Appellate Term, Second Department
Jul 28, 2016
2016 NY Slip Op 51174(U)
Insurer prevailed
An objection that the insurer's medical expert is not an orthopedic surgeon goes to the weight, rather than admissibility, of testimony. After a small claims trial, the provider's action for unpaid no-fault benefits was dismissed. The insurer's expert, board-certified in physical medicine and rehabilitation, testified that the testing lacked medical necessity. The trial court implicitly accepted that testimony, shifting the burden to the provider to establish necessity by a preponderance of the evidence, which the provider failed to do. Applying the substantial-justice standard under UCCA 1804 and 1807 and deferring to credibility determinations, the Appellate Term, Second Department, affirmed. The provider's claim that a hearing impairment prevented participation could not be considered because it was outside the record.
Appellate Term, Second Department
Jul 20, 2016
2016 NY Slip Op 26237
Insurer prevailed
A doctor may not bill for services rendered by an employee using the doctor's own Social Security number. The provider, an unincorporated solo practitioner, submitted a no-fault claim under a personal Social Security number for services performed by an employed doctor. Applying 26 CFR 301.6109-1 (a) (1) (ii) (D), the court distinguished a sole proprietor billing for personally rendered services from an employer billing for an employee's services, which requires an employer identification number. The insurer established the billing defect and a denial mailed within 30 days of receiving the claim. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 20, 2016
2016 NY Slip Op 51133(U)
Provider prevailed
The insurer's fee schedule defense did not support dismissal of the entire complaint because it challenged only excess charges. The insurer sought summary judgment based on lack of medical necessity and alternatively sought dismissal of amounts exceeding the workers' compensation fee schedule. Its denial forms showed that no payments had been made. The District Court dismissed the entire complaint on the fee schedule defense without addressing medical necessity. The Appellate Term, Second Department, reversed and remitted for a new determination of the insurer's motion. The District Court should first have addressed medical necessity because that defense could dispose of the entire action, whereas the fee schedule defense reached only the excess amounts.
Appellate Term, Second Department
Jul 13, 2016
2016 NY Slip Op 51122(U)
Insurer prevailed
An unpleaded res judicata defense may support summary judgment when it causes no surprise or prejudice to the opposing party. After answering the provider's no-fault action, the insurer obtained a default declaratory judgment of noncoverage based on the provider's failure to appear for EUOs. The provider argued that the insurer waived preclusion defenses by omitting them from its answer. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the insurer. The answer could be deemed amended, and CPLR 3211 (e) did not require waiver because the later judgment supplied the defense and the record showed no surprise or prejudice. Recovery would impair rights established by the declaratory judgment and was barred by res judicata.
Appellate Term, Second Department
Jul 13, 2016
2016 NY Slip Op 51124(U)
Insurer prevailed
The insurer's unrebutted IME testimony established that further chiropractic treatment, including MUA, lacked medical necessity. The chiropractor who performed the IME testified that the assignor's injuries had resolved. Although the Civil Court credited that testimony, it awarded the provider its facility fee because it considered chiropractors unable to opine on MUA necessity. The Appellate Term, Second Department, reversed and remitted for judgment dismissing the complaint for the insurer. The testimony supplied a factual basis and medical rationale, shifting the burden to the provider to show a changed condition or an erroneous IME opinion. The provider called no rebuttal witnesses. The court did not decide whether chiropractors may perform MUA in New York.
Appellate Term, Second Department
Jul 13, 2016
2016 NY Slip Op 51125(U)
Insurer prevailed
The insurer's unrebutted chiropractic expert testimony established that the MUA procedure and related facility fee lacked medical necessity. The provider stipulated to the expert's credentials and expertise. Although the Civil Court found the testimony credible and sufficient, it awarded the provider judgment on the premise that chiropractors could not perform MUA in New York. The Appellate Term, Second Department, reversed and remitted for judgment dismissing the complaint for the insurer. The testimony supplied a factual basis and medical rationale, and the provider called no witnesses to meet its burden of proving necessity by a preponderance of the evidence. The court did not decide whether chiropractors may perform MUA in New York.
Appellate Term, Second Department
Jul 13, 2016
2016 NY Slip Op 51123(U)
Split result
A trial decision controls over an inconsistent judgment, and the discrepancy may be corrected on appeal under CPLR 5019 (a). The Civil Court found the insurer's unrebutted medical testimony established lack of necessity for the supplies addressed by its witness, but awarded the provider recovery for a massager the witness did not discuss. The entered judgment nevertheless dismissed the entire complaint. The Appellate Term, Second Department, upheld the medical-necessity determination but reversed the judgment and remitted for entry of judgment awarding the provider recovery for the massager, with statutory interest and attorney's fees under Insurance Law § 5106 (a). The insurer prevailed as to the remaining supplies.
Appellate Term, Second Department
Jul 8, 2016
2016 NY Slip Op 51081(U)
Provider prevailed
The provider's treating doctor's affirmation raised a triable issue of medical necessity by sufficiently rebutting the insurer's IME report. The insurer challenged the affirmation under CPLR 2106, asserting that the doctor owned the provider and was therefore a party. Its Department of State website printout was inadmissible under CPLR 4518 (c), so ownership was not established. The insurer did not challenge the affirmation's merits, and the conflicting expert opinions precluded summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's summary judgment motion. It remitted the matter to the District Court, Suffolk County, to determine the unresolved alternative request to compel the treating provider's examination before trial.
Appellate Term, Second Department
Jul 8, 2016
2016 NY Slip Op 51076(U)
Insurer prevailed
The provider's argument that the defendant insurer lacked privity with the declaratory judgment plaintiff was unpreserved. The declaratory judgment plaintiff obtained a contested summary judgment order denying the provider no-fault coverage based on the assignor's EUO nonappearance. The defendant insurer then obtained dismissal of the provider's no-fault action under res judicata. The Appellate Term, Second Department, affirmed summary judgment for the defendant insurer because the provider had not raised its privity argument in the Civil Court. Its remaining challenges to the declaratory order's preclusive effect lacked merit.
Appellate Term, Second Department
Jul 8, 2016
2016 NY Slip Op 51080(U)
Insurer prevailed
A provider seeking restoration more than a year after its action was marked off must show merit and a reasonable excuse for delay. The provider moved to restore its assigned no-fault action to the trial calendar more than three years after it had been marked off. The Civil Court denied restoration because the motion was not filed within the statutory period. Applying 22 NYCRR 208.14 (c) and Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., the Appellate Term, Second Department, explained that later restoration remained available upon the required showing. The provider failed to satisfy those requirements, and the order denying restoration was affirmed.
Appellate Term, Second Department
Jul 8, 2016
2016 NY Slip Op 51078(U)
Insurer prevailed
The defendant's summary judgment motion based on untimely accident notice or proof of claim was granted and affirmed on appeal. The defense invoked the 30-day accident-notice and 45-day proof-of-claim requirements of 11 NYCRR 65-2.4 (a), (b) and (c). The Appellate Term, Second Department, affirmed for the reasons stated in Great Health Care Chiropractic, P.C. v Elrac, Inc.
Appellate Term, Second Department
Jul 7, 2016
2016 NY Slip Op 51072(U)
Insurer prevailed
An entered default declaratory judgment barring no-fault coverage has preclusive effect even without service of notice of entry. The insurer obtained a declaration that the assignor's failure to attend duly scheduled EUOs breached a coverage condition and relieved it of payment obligations for the accident. The Civil Court denied the insurer's summary judgment motion because it believed the declaration had not been entered or served with notice of entry. The moving papers established entry, and lack of notice of entry did not defeat the judgment's binding effect. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer summary judgment on res judicata grounds, and denied the provider's cross motion.
Appellate Term, Second Department
Jul 7, 2016
2016 NY Slip Op 51071(U)
Insurer prevailed
The insurer's answer was deemed amended to assert res judicata because the provider alleged no surprise or prejudice from that defense. The insurer obtained a default declaratory judgment denying coverage based on the assignor's EUO nonappearance, then sought summary judgment without having pleaded res judicata or expressly requested amendment under CPLR 3025 (b). Its motion requested other appropriate relief. The Appellate Term, Second Department, deemed the answer amended in the interest of justice, reversed the order, granted the insurer's motion dismissing the complaint, and denied the provider's cross motion. An unpleaded defense could support summary judgment absent surprise or prejudice, and recovery would impair rights established by the declaratory judgment.
