Appellate Division, First Department
Sep 27, 2016
2016 NY Slip Op 06166
Provider prevailed
The insurers failed to establish timely EUO requests or the provider's nonappearance and were denied summary judgment declaring no entitlement. Counsel's affirmation could establish mailing, but neither it nor the record showed compliance with regulatory time frames; timely denials were therefore immaterial. Nonappearance transcripts were uncertified and unsworn, and other scheduled dates lacked proof. The Appellate Division, First Department, modified the order entered upon renewal to deny summary judgment and leave to amend, vacate the declaration, and otherwise affirm. Amendment was denied without prejudice to renewal because the proposed amended complaint and additional billings were omitted. The request to enjoin arbitration or further court proceedings was also denied without prejudice to renewal before Supreme Court.
Appellate Term, First Department
Sep 28, 2016
2016 NY Slip Op 51381(U)
Provider prevailed
The insurer's IME physicians failed to explain the basis for recalling the assignor's nonappearance approximately eight years later. The insurer obtained summary judgment dismissing the provider's action for assigned no-fault benefits based on missed IMEs. The physicians' conclusory affidavits lacked probative value because they did not state the basis of their recollection that the assignor had failed to attend on the scheduled dates. The insurer therefore failed to submit competent proof of nonappearance. The Appellate Term, First Department, reversed the order and denied the insurer's motion for summary judgment.
Appellate Term, First Department
Sep 28, 2016
2016 NY Slip Op 51382(U)
Insurer prevailed
The insurer established timely, proper mailing of IME notices and the assignor's repeated nonappearance. Sworn affidavits from the scheduled examining physician and an employee of the insurer's third-party IME scheduler supplied facts demonstrating personal knowledge of the nonappearances and the applicable office practices when an assignor fails to attend. 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, affirmed the order granting the insurer summary judgment dismissing the action for assigned no-fault benefits and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51434(U)
Provider prevailed
The provider established submission of its claim forms through the insurer's denials admitting receipt. The insurer moved for summary judgment on medical necessity grounds, and the provider cross-moved for summary judgment or a finding under CPLR 3212 (g) establishing submission of the claims. The Civil Court found timely denials and limited trial to the provider's prima facie burden and medical necessity, but denied the provider's requested finding. Both parties had annexed denials acknowledging receipt of the claims. In those particular circumstances, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider a finding that submission was established for all purposes in the action.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51409(U)
Provider prevailed
The insurer failed to establish the correct fee-schedule conversion factor or exhaustion of the daily physical medicine unit limit. The insurer sought dismissal based on excessive charges and prior payment to another provider for eight units per date, the limit under Physical Medicine Ground Rule 11. It did not demonstrate use of the correct conversion factor to calculate reimbursement. Its documents concerning the other provider lacked authentication, foundation and discussion; even at face value, they showed billing for only three units on each applicable date. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51427(U)
Insurer prevailed
A provider must exhaust remedies against the known owner of the striking vehicle before seeking benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the vehicle in which the assignor was a passenger. Under Hauswirth v American Home Assur. Co., the provider, as assignee, had to exhaust remedies against that owner before pursuing MVAIC. It did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the provider's assigned no-fault complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51423(U)
Split result
The insurer failed to establish proper mailing of IME scheduling letters, and the provider failed to establish prima facie entitlement to judgment. The insurer's affidavit did not sufficiently describe a standard office practice or procedure ensuring proper mailing of letters scheduling the assignor's IMEs. The provider's affidavit did not establish 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 party was entitled to summary judgment. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed, leaving the denial of the provider's motion in place.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51429(U)
Insurer prevailed
The insurer's unrebutted IME report established a lack of medical necessity for the treatment at issue. The Civil Court denied the insurer's summary judgment motion but limited trial to medical necessity under CPLR 3212 (g). The insurer submitted an affirmed report from the physician who examined the assignor before the services were rendered. The report supplied a factual basis and medical rationale for the conclusion that further treatment was unnecessary, and the provider did not rebut that showing. 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 summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51437(U)
Insurer prevailed
The insurer established nonreceipt of the claim form, and the provider offered no evidence that it had submitted the form. On renewal of the insurer's summary judgment motion, the Civil Court adhered to its prior denial, finding a factual issue concerning receipt of the bill. The Appellate Term, Second Department, found the insurer's proof sufficient to establish nonreceipt and, absent evidence of submission, held that dismissal was warranted under Meridian Acupuncture Care, P.C. v Mercury Cas. Co. It reversed the order, insofar as appealed from, and, upon renewal, granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51435(U)
Insurer prevailed
An EUO nonappearance denial is not conclusory or vague as a matter of law merely because it omits the scheduled examination dates. The insurer established timely mailing of the EUO scheduling letters and denial forms, together with the assignor's failure to attend the duly scheduled EUOs. Contrary to the Civil Court's conclusion, omission of the dates did not invalidate the denials under Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC. The Appellate Term, Second Department, reversed the order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51421(U)
Insurer prevailed
The provider failed at trial to establish the assignor's eligibility for MVAIC benefits through residency proof and a notice-of-intention affidavit. The sole agreed trial issue was whether the assignor was a qualified person. Under Insurance Law § 5202 (b), New York residency proof was a condition precedent, but the provider did not establish that MVAIC received proof of residency on the accident date. Nor did it establish submission of the affidavit required by Insurance Law § 5208 (a) (1), (3) to qualify for benefits under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, dismissed the appeal from the decision under CCA 1702, reversed the provider's judgment, and remitted for judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51411(U)
Insurer prevailed
The insurer established nonreceipt of one claim and outstanding verification for five others. For the first cause of action, the insurer described its mail-receipt procedures and demonstrated nonreceipt. The provider owner's affidavit asserted mailing almost a month before the claimed services were provided, and no attached claim matched the amount sought, leaving no triable mailing issue. For the third through seventh causes of action, the insurer established presumptive mailing of initial and follow-up verification requests and nonreceipt of the requested verification, making those claims premature. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the first and third through seventh causes of action.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51415(U)
Insurer prevailed
The provider could not challenge the reasonableness of EUO requests after failing to allege or prove any response to them. The insurer established the provider's failure to attend two duly scheduled EUOs and obtained summary judgment dismissing the complaint. The provider argued that the motion was premature because it needed discovery concerning the propriety of the EUO demands. Because the provider had not responded to the requests, it could not raise objections to their reasonableness in litigation. Discovery on that subject was therefore unnecessary to oppose the motion under CPLR 3212 (f). The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51436(U)
Insurer prevailed
The provider's failure to timely file a notice-of-intention affidavit defeated the assignor's eligibility for MVAIC benefits. MVAIC established the untimely filing, and the provider failed to raise a triable issue by demonstrating that leave to file a late notice had been sought under Insurance Law § 5208 (a), (c). The assignor therefore was not a covered person under Insurance Law § 5221 (b) (2), and a condition precedent to payment remained unsatisfied. The Appellate Term, Second Department, affirmed the order denying the provider summary judgment and granting MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51432(U)
Insurer prevailed
A timely notice-of-intention affidavit is a condition precedent to recovery of no-fault benefits from MVAIC. Insurance Law § 5208 (a) (1), (3) requires that filing, and compliance must be established to show covered-person status under Insurance Law § 5221 (b) (2). MVAIC established that it had not received the required affidavit. The Appellate Term, Second Department, reversed the order denying MVAIC's motion for summary judgment and granted the motion dismissing the provider's complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51424(U)
Split result
The insurer proved a verification defense to one claim but lacked personal-knowledge proof of EUO nonappearance for seven others. For the first cause of action, its submissions established proper mailing of initial and follow-up verification requests and nonreceipt of the requested material, making the claim premature. For the second through eighth causes, it submitted no proof from someone with personal knowledge of the provider's EUO nonappearance. The Appellate Term, Second Department, modified the order to deny summary judgment on the EUO ground for those seven causes and otherwise affirmed. It remitted the seventh cause to the Civil Court for determination of the insurer's undecided medical-necessity ground.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51420(U)
Provider prevailed
The insurer failed to establish proper mailing of the letters scheduling the assignor's IMEs through proof of office mailing practices. Its supporting affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly mailed. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, found that the insurer had not demonstrated entitlement to summary judgment. It reversed the order granting dismissal of the provider's assigned no-fault action and denied the insurer's motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51416(U)
Insurer prevailed
MVAIC established that the provider commenced its no-fault action after the three-year statute of limitations expired. A defendant seeking dismissal on limitations grounds bears the initial burden of showing that the time to sue has expired. MVAIC met that burden, and the provider's opposition failed to raise a triable issue concerning timeliness. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment and granting MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51414(U)
Insurer prevailed
A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident. The provider nevertheless failed to demonstrate that it had exhausted remedies against the owner. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the judgment for the provider and vacated the underlying order. It denied the provider's motion for summary judgment and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51408(U)
Insurer prevailed
A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking benefits from MVAIC. The provider and assignor knew the owner of the vehicle in which the assignor had been a passenger, but the provider did not demonstrate exhaustion of remedies against that owner. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the judgment awarding benefits, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion dismissing the complaint. The court reached no other issue.
Appellate Term, First Department
Sep 27, 2016
2016 NY Slip Op 51342(U)
Provider prevailed
An insurer's untimely denial precludes a defense based on the assignor's misrepresentation of military status in the policy application. The insurer sought summary judgment dismissing the provider's first-party no-fault action and submitted evidence of the application misrepresentation. Following Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc. and Gutierrez v United Servs. Auto. Assn., the Appellate Term, First Department, held that the late denial barred that defense. It reversed the order granting summary judgment, denied the insurer's motion, and reinstated the complaint.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51405(U)
Split result
The insurer failed to establish timely mailing of its denials, and the provider failed to establish prima facie entitlement to judgment. The insurer's affidavit did not adequately describe an office practice ensuring timely mailing. That deficiency defeated summary judgment dismissing the first cause of action on a fee-schedule payment defense and the finding that denials were timely and properly mailed. The provider's affidavit established neither an untimely denial nor a timely denial that was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to the first cause of action and vacate the mailing finding, while affirming denial of the provider's motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51410(U)
Split result
Neither party established entitlement to summary judgment because its proof concerning the denials was insufficient. The insurer's motion papers failed to establish timely mailing of the denial forms, defeating its cross motion to dismiss the complaint. The provider's proof did not establish either that the insurer failed to deny the claim within the required 30-day period or that a timely denial was conclusory, vague or without merit as a matter of law. 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 denial of the provider's motion intact.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51412(U)
Provider prevailed
The insurer failed to establish timely mailing of denials supporting its fee-schedule payment defense. The insurer sought summary judgment on the ground that it had fully paid the provider for the services under the workers' compensation fee schedule. Its affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the denial forms. The insurer therefore failed to demonstrate entitlement to summary judgment dismissing the second through tenth causes of action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branches of the insurer's motion concerning those causes of action.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51413(U)
Split result
The provider's mailing affidavit raised a factual issue whether the insurer received requested verification, precluding dismissal as premature. The insurer's proof established presumptive mailing of initial and follow-up verification requests and nonreceipt of the requested material. The provider owner's affidavit, however, created a presumption that the verification had been mailed to and received by the insurer. The conflicting proof raised a triable issue 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 denial of the provider's summary judgment motion intact.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51417(U)
Insurer prevailed
The insurer established proper mailing of verification requests and denials and timely denial after receipt of verification. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits. Contrary to the provider's contentions, the insurer's proof created a presumption that its verification requests and denial forms had been properly mailed. The insurer also demonstrated that it received the requested verification on May 28, 2013, and the claims were therefore timely denied. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51418(U)
Provider prevailed
The insurer's summary judgment motion was denied on appeal because it failed to establish its fee-schedule defense as a matter of law. The Appellate Term, Second Department, reversed the order dismissing the provider's complaint, concluding that the insurer had not established that the fees charged exceeded the workers' compensation fee schedule and citing Rogy Med., P.C. v Mercury Cas. Co.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51419(U)
Split result
The insurer proved fee-schedule payment for services billed under CPT codes 97810 and 97811, but not entitlement to dismiss the initial-visit claim. The provider challenged summary judgment dismissing its first through fifth causes of action for assigned no-fault benefits. The insurer's proof established presumptive mailing of the denials and full payment under the workers' compensation fee schedule for the services billed under those codes. Its evidence was insufficient, however, to warrant dismissal of the claim for the initial acupuncture visit. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of that portion of the first cause of action and otherwise affirmed.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51422(U)
Split result
The insurer failed to prove the assignor's IME nonappearance through a witness with personal knowledge. The provider appealed the denial of its summary judgment motion and dismissal of the fourth through sixth causes of action on IME nonappearance grounds. The provider's proof failed to establish untimely denials or timely denials that were conclusory, vague or without merit as a matter of law. The insurer, however, supplied no proof from someone with personal knowledge attesting to the assignor's nonappearance. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of those causes of action and otherwise affirmed the denial of the provider's motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51426(U)
Insurer prevailed
The provider's affidavit failed to establish an untimely denial or a timely denial that was legally insufficient. In its action for assigned no-fault benefits, the provider obtained summary judgment in the Civil Court. Its supporting affidavit, however, did not establish either that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit as a matter of law. The provider therefore failed to demonstrate prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the provider's motion.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51428(U)
Insurer prevailed
The insurer was granted summary judgment dismissing the complaint based on the assignor's failure to attend duly scheduled IMEs. The Appellate Term, Second Department, affirmed, finding the insurer's proof sufficient to establish presumptive mailing of the IME scheduling letters and denial forms and the assignor's nonappearance.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51430(U)
Provider prevailed
The insurer's cross motion for summary judgment based on lack of medical necessity was denied because a triable factual issue remained. The Civil Court had limited trial to medical necessity under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, after reviewing the record and finding a triable issue concerning the medical necessity of the supplies.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51431(U)
Insurer prevailed
The assignor's attendance at other IMEs raised no factual issue concerning the reasonableness of the orthopedic IME requests at issue. Under 11 NYCRR 65-1.1, an eligible injured person must attend IMEs as often as the insurer reasonably requires. The other examinations were generally in different specialties, and the prior orthopedic report recommended reevaluation after four weeks, approximately when the first disputed IME was scheduled. The provider also failed to allege or prove any response to the requests, so its objections should not have been considered. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the claims denied for IME nonappearance; the insurer's entitlement was otherwise unchallenged.
Appellate Term, Second Department
Sep 27, 2016
2016 NY Slip Op 51433(U)
Split result
The provider's mailing affidavit raised a triable issue whether requested verification had been received for two claims. Although the insurer's proof established nonreceipt of verification for the first and fifth causes of action, the provider owner's affidavit created a presumption of mailing and receipt, precluding summary judgment dismissing those claims as premature. On the second cause of action, the insurer's description of its mail-receipt practices raised a factual issue whether it had received the claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion as to the first and fifth causes of action, while affirming denial of the provider's motion on the first, second and fifth causes of action.
Appellate Term, Second Department
Sep 21, 2016
2016 NY Slip Op 51378(U)
Split result
The insurer failed to prove mailing of a cancellation notice, and conflicting affidavits raised a factual issue over claim submission. The insurer asserted cancellation before the accident, but its affidavits either merely claimed mailing in the regular course or described only claims-processing mail procedures. They did not establish mailing of the cancellation notice to effect cancellation under Vehicle and Traffic Law § 313 and Banking Law § 576. The insurer separately established nonreceipt of the claim, but the provider owner's mailing affidavit raised a triable issue. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed the denial of the provider's summary judgment motion.
Appellate Term, Second Department
Sep 21, 2016
2016 NY Slip Op 51376(U)
Provider prevailed
The insurer's summary judgment motion was denied because a triable issue remained concerning medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, agreeing after review of the record that the necessity of the services presented a factual issue. The court also noted that the insurer's request to compel the provider's deposition remained pending and undecided.
Appellate Term, Second Department
Sep 21, 2016
2016 NY Slip Op 51377(U)
Provider prevailed
The insurer failed to establish timely mailing of the denial supporting its provider EUO nonappearance defense. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits. Although the insurer's motion relied on the provider's failure to attend duly scheduled EUOs, its affidavits did not sufficiently describe a standard office practice or procedure ensuring that the denial form had been timely mailed. The insurer therefore failed to demonstrate entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51359(U)
Split result
The insurer established proper recoding of physical therapy services but failed to justify Ground Rule 11 reductions on three claims. Its proof supported changing CPT code 97799 to 97140, and the provider raised no coding issue of fact. The insurer did not establish that Ground Rule 11's daily reimbursement limit applied to the first through third causes of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of those causes, while affirming reductions on the fifth and sixth causes. Medical necessity remained triable on the fourth through sixth causes. The provider's summary judgment motion remained denied because its affidavit did not establish untimely denials or timely denials that were conclusory, vague, or meritless as a matter of law.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51352(U)
Insurer prevailed
The insurer established that it first learned of the accident through an NF-2 form submitted more than 30 days after the accident. Its claims examiner's affidavit supported the late-notice defense, and its denial advised the provider of the opportunity to submit written proof offering clear and reasonable justification for the delay under 11 NYCRR 65-1.1 and 65-2.4 (b). The provider offered no contrary proof and merely speculated that the insurer had learned of the accident earlier, failing to raise a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51358(U)
Provider prevailed
The insurer failed to establish that the provider's charges for supplies exceeded the workers' compensation fee schedule. In this action for assigned no-fault benefits, the insurer sought summary judgment dismissing the complaint on the ground that it had fully paid the provider under that schedule. The Civil Court, Queens County, granted the motion. On the provider's appeal, the Appellate Term, Second Department, found the insurer's motion papers insufficient to establish excessive charges as a matter of law, following Rogy Med., P.C. v Mercury Cas. Co. It reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51347(U)
Split result
Conflicting proof of mailing and nonreceipt raised a factual issue as to whether the insurer's time to pay or deny began to run. The insurer's claims representative submitted an affidavit sufficient to establish nonreceipt of the claim, while the provider's owner's affidavit demonstrated that the claim form had been mailed. Neither party was therefore entitled to summary judgment in the action for assigned no-fault benefits. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed the denial of the provider's motion.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51350(U)
Insurer prevailed
The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. The provider challenged that proof on appeal from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing the action for assigned no-fault benefits. The Appellate Term, Second Department, rejected the challenge, finding the affirmation sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. It affirmed the order in the insurer's favor and did not reach the provider's arguments concerning its own motion or the insurer's alternate defense.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51365(U)
Provider prevailed
An insurer seeking judgment for an assignor's EUO nonappearance must prove two duly demanded EUOs, two nonappearances and timely denial. Under Interboro Ins. Co. v Clennon, those showings are required to establish prima facie entitlement to summary judgment dismissing claims arising from the provider's treatment of the assignor. Here, the insurer failed to establish as a matter of law that the denial forms had been properly and timely mailed. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment dismissing the complaint and expressly reached no other issue.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51355(U)
Provider prevailed
MVAIC's own submissions raised a factual issue about whether the assignor had other no-fault coverage that had to be exhausted. Its claim representative reported that a search using the assignor's address identified another resident who owned an insured vehicle. But MVAIC also submitted the assignor's household affidavit stating that the assignor lived alone when the accident occurred. Those conflicting submissions left unresolved whether benefits were available from the vehicle's insurer, which the provider and assignor would have to exhaust before seeking recovery from MVAIC. The Appellate Term, Second Department, reversed the order granting MVAIC summary judgment and denied its motion to dismiss the provider's assigned-benefits action.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51351(U)
Insurer prevailed
The defendant's summary judgment motion based on the assignor's IME nonappearance was granted and affirmed on appeal. The Appellate Term, Second Department, found the supporting affidavit sufficient to establish timely mailing of the denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It rejected the provider's remaining contention without explanation.
Appellate Term, First Department
Sep 19, 2016
2016 NY Slip Op 51300(U)
Split result
The insurer established its fee schedule defense for CPT codes 97813 and 97814, but a factual issue remained on code 99202. Its affidavits and documentary evidence established timely denials of the acupuncture claims under codes 97813 and 97814 because the charges exceeded the applicable workers' compensation fee schedule. The provider raised no triable issue concerning mailing or fee calculations for those claims. A triable issue remained as to whether the insurer properly denied the initial-evaluation claim billed under code 99202. The Appellate Term, First Department, modified the order to grant the insurer partial summary judgment dismissing the claims under codes 97813 and 97814, and otherwise affirmed the denial of summary judgment on the code 99202 claim.
Appellate Term, First Department
Sep 19, 2016
2016 NY Slip Op 51302(U)
Insurer prevailed
The insurer established timely denials and proper fee schedule calculations for the provider's acupuncture claims. The provider sought the difference between its charges and the payments made under the workers' compensation fee schedule. The insurer's affidavits and documentary evidence established prima facie that the charges exceeded the permitted amount and that the claims were timely denied on that ground. The provider raised no triable issue concerning either mailing of the denials or calculation of the fees. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint; the provider's remaining arguments were unpreserved or lacked merit.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51353(U)
Split result
The insurer failed to establish timely mailing of verification requests, requiring vacatur of a finding under CPLR 3212 (g). The Civil Court, Kings County, denied both parties' summary judgment motions but limited trial to whether the provider had complied with the insurer's requests. The Appellate Term, Second Department, vacated the finding favoring the insurer because its cross-moving papers did not establish timely mailing as a matter of law. The provider also lacked entitlement to summary judgment: the record did not establish that the requests were untimely or, if timely, that the insurer received the requested verification and its time to pay or deny expired. The order, insofar as appealed from, was modified accordingly and otherwise affirmed.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51354(U)
Insurer prevailed
The insurer established proper mailing of its denial forms and the assignor's failure to appear for EUOs. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits on the EUO nonappearance defense. The provider's only appellate arguments challenged the mailing evidence and proof of nonappearance. The Appellate Term, Second Department, found the insurer's submissions sufficient to raise a presumption that the denials had been properly mailed and to demonstrate the assignor's failure to attend the scheduled EUOs. It affirmed the order in the insurer's favor.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51356(U)
Split result
The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense. Its affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing, defeating its cross motion for summary judgment dismissing the provider's assigned no-fault claims. The provider's motion also failed because its affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or meritless as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed the denial of the provider's motion.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51357(U)
Split result
The insurer's affidavits failed to establish an office mailing procedure ensuring timely mailing of its denial of claim. The insurer therefore failed to demonstrate entitlement to summary judgment dismissing the provider's action for assigned no-fault benefits. The provider likewise failed to make a prima facie showing: its supporting affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the provider's motion for summary judgment denied as well.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51360(U)
Split result
The insurer failed to establish timely mailing of both EUO scheduling letters through its two affidavits. One affidavit described mailroom procedures and alleged mailing of initial and follow-up letters, but the affidavit addressing preparation mentioned only the follow-up letter. The provider also failed to establish entitlement to summary judgment because its papers did not show that the claims were untimely denied or that timely denials were conclusory, vague, or meritless as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion based on EUO nonappearance and otherwise affirmed, leaving both parties' summary judgment motions denied.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51361(U)
Insurer prevailed
The insurer's proof established proper mailing of EUO scheduling letters and the assignor's failure to appear for the EUOs. In the provider's action for assigned no-fault benefits, the Civil Court, Queens County, denied the provider's motion for summary judgment and granted the insurer's cross motion dismissing the complaint. The provider's only appellate contentions challenged the mailing proof and the proof of nonappearance. The Appellate Term, Second Department, found the evidence sufficient to raise a presumption of proper mailing and to establish the assignor's nonappearance, and affirmed the order in the insurer's favor.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51362(U)
Insurer prevailed
The insurer established full payment for acupuncture services under the workers' compensation fee schedule for chiropractors. The provider sought assigned no-fault benefits and opposed the insurer's summary judgment motion on the ground that the fee schedule reductions had not been shown to be proper. The Appellate Term, Second Department, rejected that argument and affirmed the order granting the insurer summary judgment dismissing the complaint. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the court applied the rule permitting an insurer to use the workers' compensation fee schedule for acupuncture performed by chiropractors to determine reimbursement for a licensed acupuncturist's services.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51363(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, affirmed the Civil Court, Queens County, order for the reasons stated in Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., without giving independent reasoning or identifying the underlying defense.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51364(U)
Insurer prevailed
The insurer established timely IME notices, the assignor's nonappearance, and timely denials after receipt of requested verification. In the provider's action for assigned no-fault benefits, the insurer showed that it mailed initial and follow-up IME scheduling letters before receiving the claims. After receiving the claims, it timely mailed initial and follow-up written verification requests and denied the claims upon receiving the requested verification. The decision relied on 11 NYCRR 65-3.5 (b) and 65-3.8 (l) and the proof of mailing and nonappearance. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51366(U)
Split result
The insurer's medical-necessity showing was unrebutted for six claims, but its proof did not warrant dismissal of four others. The provider offered no admissible medical rebuttal for the first through sixth causes of action. For the seventh, the insurer lacked personal-knowledge proof of IME nonappearance, while the provider failed to establish attendance. For the eighth, the insurer proved no defense, the record showed no concession of liability, and the provider failed to establish an untimely or legally insufficient denial. Receipt of the ninth and tenth claims presented factual issues. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion on the seventh through tenth causes of action, affirming dismissal of the first six and denial of the provider's motion.
Appellate Term, Second Department
Sep 19, 2016
2016 NY Slip Op 51367(U)
Provider prevailed
The insurer's summary judgment motion was denied for failure to establish IME nonappearance and timely mailing of denials. The Appellate Term, Second Department, affirmed, concluding that the insurer's moving papers did not establish as a matter of law that the assignor had missed duly scheduled IMEs and did not demonstrate timely mailing of the denial forms.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51327(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, affirmed the Civil Court, Queens County, order for the reasons stated in Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., without giving independent reasoning or identifying the underlying defense.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51326(U)
Insurer prevailed
The insurer's summary judgment motion based on timely denials and full fee-schedule payment was granted and affirmed on appeal. The Appellate Term, Second Department, found that the insurer's proof established timely mailing of the denial forms and full payment under the workers' compensation fee schedule. It rejected the provider's contrary arguments without further explanation.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51318(U)
Split result
The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second. For the first claim, mailing proof covered verification requests and denials, the initial verification request was sent within 15 business days of the provider's asserted submission date, and a doctor's affidavit established IME nonappearance. For the second, the insurer proved neither denial within 30 days of receipt nor tolling through timely verification requests. The provider also failed to establish that the second claim was untimely denied or that a timely denial was legally insufficient. The Appellate Term, Second Department, modified the order to deny dismissal of the second cause of action, otherwise affirming dismissal of the first and denial of the provider's summary judgment motion.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51319(U)
Insurer prevailed
The insurer established proper mailing of verification requests and nonreceipt of the requested verification, rendering the action premature. The provider appealed from an order denying its motion for summary judgment and granting the insurer's cross motion dismissing its assigned no-fault claims. Its only challenges to the cross motion concerned mailing and receipt of verification. The Appellate Term, Second Department, found the insurer's submissions sufficient to raise a presumption that the initial and follow-up requests had been properly mailed and to demonstrate that the requested verification had not been received. It affirmed the order in the insurer's favor.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51320(U)
Insurer prevailed
The provider's objection that the IME notices improperly included an apartment number was unpreserved. The provider had not raised that argument in opposition to the insurer's summary judgment motion, and the Appellate Term, Second Department, declined to consider it. The insurer sought dismissal of assigned no-fault claims based on timely and proper denials for the assignor's failure to attend scheduled IMEs. The court also rejected the provider's challenges to proof that the scheduling letters and denial forms were timely and properly mailed and that the assignor failed to appear. It affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51321(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, affirmed the Civil Court, Queens County, order for the reasons stated in Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., without giving independent reasoning or identifying the underlying defense.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51322(U)
Insurer prevailed
The provider's summary judgment motion was denied because the record presented a triable issue of medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, agreeing with the Civil Court, Queens County, determination and citing Zuckerman v City of New York without describing the evidence or giving further reasoning.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51323(U)
Insurer prevailed
The insurer's affidavits established timely and proper mailing of IME scheduling letters and denial forms. The provider moved for summary judgment in its action for assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint based on the assignor's failure to attend duly scheduled IMEs. The Civil Court, Queens County, denied the provider's motion and granted the insurer's cross motion. Rejecting the provider's challenge to the mailing proof, the Appellate Term, Second Department, found no basis to disturb that order and affirmed the dismissal in the insurer's favor.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51324(U)
Insurer prevailed
The provider's summary judgment motion was denied because the record presented a triable issue of medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, agreeing with the Civil Court, Queens County, determination and citing Zuckerman v City of New York without describing the evidence or giving further reasoning.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51325(U)
Insurer prevailed
The insurer established proper mailing of IME scheduling letters and denial forms, as well as the assignor's nonappearance. The insurer sought summary judgment dismissing the provider's assigned no-fault claims based on timely denials for failure to attend duly scheduled IMEs. On appeal, the provider challenged both the mailing proof and the evidence of nonappearance. The Appellate Term, Second Department, found the insurer's submissions sufficient to raise a presumption of proper mailing and to establish that the assignor had failed to attend the IMEs. It affirmed the order granting the insurer's motion and rejected the provider's remaining contention without further discussion.
Appellate Term, Second Department
Sep 15, 2016
2016 NY Slip Op 51328(U)
Provider prevailed
The insurer's fee schedule defense did not support summary judgment because its affidavits failed to establish timely mailing of denials. The insurer moved to dismiss the provider's assigned no-fault claims, asserting that it had fully paid for the services under the workers' compensation fee schedule. The Civil Court, Queens County, granted the motion. On appeal, the Appellate Term, Second Department, found that the affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the denial forms. It reversed the order and denied the insurer's motion for summary judgment.
