Appellate Division, First Department
Oct 13, 2016
2016 NY Slip Op 06767
Provider prevailed
The insurer failed to establish that its IME letters contained the required notice of reimbursement for lost earnings and transportation. Under 11 NYCRR 65-3.5 (e), that notice must accompany scheduling. The Appellate Division, First Department, upheld confirmation of two master arbitration awards because the insurer did not establish its IME no-show defense or grounds for a new arbitration hearing. Under Insurance Law § 5106 (a) and 11 NYCRR 65-4.10 (j) (4), the provider was entitled to court-fixed attorney fees for judicial review. The court modified one order to grant the fee counterclaim and remitted for determination of fees. The other fee denial remained undisturbed because the provider had not cross-appealed it; that order was affirmed insofar as appealed from.
Appellate Division, Second Department
Oct 12, 2016
2016 NY Slip Op 06680
Split result
The insurer's affirmed peer review supported a default judgment despite lacking an original signature. In a de novo action under Insurance Law § 5106 (c) following two master arbitration awards, the insurer sought a default judgment against one provider and summary judgment against another. The Appellate Division, Second Department, modified the order to grant leave to enter the default judgment. Proof of service, default, and a viable claim satisfied CPLR 3215 (f), and CPLR 2101 (e) permitted the copy of the expert's affirmation. The court otherwise affirmed the order, insofar as appealed from: peer reviews and medical records did not establish that the second provider's surgery lacked medical necessity, so summary judgment on the complaint and dismissal of its breach-of-contract counterclaim remained denied.
Appellate Term, Second Department
Oct 31, 2016
2016 NY Slip Op 51596(U)
Insurer prevailed
A provider's willful and contumacious failure to comply with court-ordered discovery may warrant dismissal under CPLR 3126. The insurer sought testimony and documents concerning its defense that the provider was ineligible for no-fault reimbursement. An unopposed order required responses to outstanding discovery demands within 60 days. After that period expired, the insurer moved to dismiss; the provider served written responses with its opposition. Willfulness and contumacious conduct could be inferred from the provider's refusal to comply adequately even after the order and its lack of a reasonable excuse. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, dismissing the complaint.
Appellate Term, Second Department
Oct 31, 2016
2016 NY Slip Op 51598(U)
Provider prevailed
The insurer failed to prove timely, proper mailing of IME scheduling letters and therefore failed to show tolling of its 30-day claim deadline. The insurer sought summary judgment dismissing the fifth, seventh, ninth, eleventh, thirteenth and fifteenth causes of action based on the assignor's failure to attend IMEs. The provider challenged proof of timely mailing of the scheduling letters and denials. Because the insurer did not establish tolling of the time to pay or deny, it failed to make a prima facie showing of entitlement to dismissal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying those branches of the insurer's motion.
Appellate Term, First Department
Oct 26, 2016
2016 NY Slip Op 51556(U)
Provider prevailed
MVAIC's submissions left factual issues about whether payments to another provider properly exhausted coverage for billed codes. Although MVAIC properly paid some acupuncture claims under the workers' compensation fee schedule, other claims were denied wholly or partly because maximum payment allegedly had already been made for the billed codes. The record raised questions about partial exhaustion through payments to another provider and compliance with insurance department regulations. Failure to deny within 30 days did not preclude the exhaustion defense under New York & Presbyt. Hosp. v Allstate Ins. Co. The Appellate Term, First Department, reversed, denied MVAIC's summary judgment cross motion, reinstated the complaint, and remanded for determination of the provider's discovery motion, which had been denied as moot.
Appellate Term, Second Department
Oct 21, 2016
2016 NY Slip Op 51564(U)
Insurer prevailed
A default declaratory judgment against a provider bars its assigned claims even without service on or a declaration against the assignor. The insurer obtained a default declaration concerning no-fault claims arising from the accident against the provider, which had been named and served. The Civil Court nevertheless denied summary judgment on the fifth through eighth causes of action because the declaration did not extend to that assignor individually. Res judicata applies to an unvacated default determination, and the provider's right to recover as assignee was conclusively determined in the declaratory action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those causes of action.
Appellate Term, Second Department
Oct 21, 2016
2016 NY Slip Op 26348
Insurer prevailed
The insurer's request for entry of a satisfaction of judgment required a merits determination once judgment made its summary judgment request academic. The provider had obtained summary judgment for assigned no-fault benefits. Before judgment was entered, the insurer moved for dismissal on payment grounds or, alternatively, entry of a satisfaction of any intervening judgment. The Civil Court denied the entire motion as an improper successive summary judgment motion. The Appellate Term, Second Department, modified the order in the insurer's favor and remitted the satisfaction branch for determination under CPLR 5021 (a) (2), because entry of judgment had made that alternative relief operative.
Appellate Term, Second Department
Oct 21, 2016
2016 NY Slip Op 51563(U)
Insurer prevailed
The provider's failure to supply legible claim forms or an explanatory affidavit within the ordered 60 days supported preclusion and dismissal. A stipulation required legible copies or preclusion at trial, and a subsequent order allowed the provider to submit an affidavit explaining its inability to produce them. The record did not establish compliance within 60 days. The affidavit submitted in opposition to the insurer's CPLR 3126 motion explained the lack of legible copies but not the delay; it was served more than six months after the permitted period. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and treated the order appeal as a premature judgment appeal under CPLR 5520 (c).
Appellate Term, First Department
Oct 19, 2016
2016 NY Slip Op 51481(U)
Provider prevailed
⚠ Not followed by Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148)
The insurer's IME doctors' conclusory affidavits failed to establish the assignor's nonappearance at scheduled IMEs. The insurer obtained summary judgment dismissing the provider's first-party no-fault action. Its doctors' affidavits lacked probative value because they did not adequately explain the basis for their recollection, approximately three years later, that the assignor had missed the scheduled examinations. Without competent proof of nonappearance, the insurer was not entitled to summary judgment. The Appellate Term, First Department, reversed the order and denied the insurer's motion.
Appellate Term, First Department
Oct 19, 2016
2016 NY Slip Op 51479(U)
Provider prevailed
The insurer failed to establish timely IME scheduling because the record did not show when it received the provider's claims. The insurer sought summary judgment based on the assignor's failure to attend two IMEs. Without the claim-receipt date, the record supplied no basis to determine compliance with the procedures and time frames of 11 NYCRR 65-3.5 (d). Although the provider raised this issue for the first time on appeal, it presented a reviewable question of law. The Appellate Term, First Department, reversed the order granting summary judgment and denied the insurer's motion.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51520(U)
Provider prevailed
The insurer failed to establish a mailing practice sufficient to presume that its EUO scheduling letters were properly mailed. The insurer cross-moved for summary judgment dismissing the provider's assigned no-fault claims based on the assignor's EUO nonappearance. The Civil Court denied both parties' motions and, under CPLR 3212 (g), effectively limited trial to the mailing issue. The insurer appealed only the denial of its cross motion. Because its proof did not establish the required mailing practice and procedure, the Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51526(U)
Insurer prevailed
The insurer established fee-schedule reimbursement using assigned relative values, and the provider failed to rebut its calculation. The provider billed CPT codes 99244 and 20553. The insurer's no-fault examiner explained the calculation using the applicable relative value and conversion factor. The provider's doctor's unsupported assertion that code 20553 was a "by report" code without a relative value did not rebut the insurer's proof. Additional objections to the coding expert's affidavit and a specific argument concerning code 99244 were unpreserved. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51523(U)
Insurer prevailed
The insurer established proper mailing of IME notices and the denial form, as well as the assignor's failure to attend the IMEs. The provider appealed summary judgment dismissing its assigned no-fault claim. The insurer's proof supported the mailing presumption and established nonappearance. The provider's objection that the notices included an apartment number absent from its claim forms was raised for the first time on appeal and was not considered. In any event, the insurer's litigation examiner stated that the address came from the assignor's application for benefits. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51527(U)
Split result
The parties' proof failed to establish either IME nonappearance or the provider's prima facie entitlement to summary judgment. The insurer's affidavit concerning the second IME nonappearance appeared on its face to have been notarized before it was signed and did not establish the defense as a matter of law. The provider failed to show that the claim was not timely denied or that a timely denial was conclusory, vague, or legally meritless. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment and denied its cross motion, while leaving the denial of the insurer's motion intact.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51529(U)
Provider prevailed
The insurer failed to prove proper addressing and mailing of IME scheduling letters, defeating summary judgment on nonappearance. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the letters were properly addressed and mailed. Under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., that omission left the mailing showing deficient. The insurer therefore did not demonstrate that the assignor failed to attend duly scheduled IMEs. The Appellate Term, Second Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51522(U)
Insurer prevailed
MVAIC established that the provider's no-fault action was commenced after the three-year statute of limitations expired. The party seeking dismissal on limitations grounds bears the initial burden of showing that the time to commence the action has run. MVAIC satisfied that burden, and the provider failed in opposition to raise a triable issue concerning the action's 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
Oct 13, 2016
2016 NY Slip Op 51515(U)
Insurer prevailed
The insurer's sworn IME report established lack of medical necessity, and the provider did not oppose the cross motion. The Civil Court denied summary judgment on the claims at issue and limited trial to medical necessity under CPLR 3212 (g). The report supplied a factual basis and medical rationale for finding the services unnecessary. That prima facie showing remained unrebutted, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment on those claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's cross motion dismissing the claims reserved for trial.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51516(U)
Insurer prevailed
The insurer's cross motion for summary judgment on the claims reserved for trial on medical necessity was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed those claims. It relied on the companion appeal AL Acupuncture, P.C. v Praetorian Ins. Co., No. 2013-2432 K C, decided the same day.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51517(U)
Insurer prevailed
The insurer's proof established proper mailing of EUO scheduling letters and the assignor's failure to attend the EUOs. In the provider's action for assigned first-party no-fault benefits, the Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. Rejecting the provider's appellate challenges, the Appellate Term, Second Department, found the submissions sufficient to support a presumption of proper mailing and demonstrate nonappearance. It affirmed the order in the insurer's favor.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51518(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's no-fault complaint was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed the denial of the provider's summary judgment motion. It relied on the reasons stated in the companion appeal Metro Health Prods., Inc. v American Tr. Ins. Co., No. 2013-2498 K C, decided the same day.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51524(U)
Insurer prevailed
The insurer's submissions established a presumption of proper mailing of the IME scheduling letters and denial form. The provider sought assigned first-party no-fault benefits, and the insurer cross-moved for summary judgment based on the assignor's failure to attend duly scheduled IMEs. The provider's sole appellate challenge to the cross motion concerned mailing. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, rejected that challenge and affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51525(U)
Insurer prevailed
An assignor may not cure an EUO nonappearance after an insurer establishes a timely and proper denial on that ground. The Civil Court granted the insurer's cross motion for summary judgment conditioned on the assignor's failure to attend a newly noticed EUO. EUO attendance is a condition precedent to coverage under 11 NYCRR 65-1.1. Once the insurer established its defense, the assignor should not have received another opportunity to comply after claims processing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and vacated the conditions, making summary judgment for the insurer unconditional.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51528(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the assignor's failure to attend scheduled IMEs was granted and affirmed. The Appellate Term, Second Department, also affirmed the denial of the provider's motion for summary judgment on its assigned no-fault claim. It relied on the reasons stated in the companion appeal decided the same day, No. 2014-20 Q C.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51530(U)
Provider prevailed
The insurer failed to establish a timely EUO request where its first scheduling letter was sent 35 days after receipt of the claim. The provider sought assigned first-party no-fault benefits, and the insurer moved for summary judgment based on the provider's failure to appear for scheduled EUOs. Although EUO attendance is a condition precedent to coverage, the insurer's moving papers did not demonstrate a proper and timely denial on that ground. The Appellate Term, Second Department, reversed the order granting summary judgment and denied the insurer's motion.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51532(U)
Split result
The provider's proof of mailing requested verification raised a factual issue over whether its no-fault action was premature. The insurer made a prima facie showing that it had not received the verification. However, the affidavit of the provider's owner created a presumption that the verification had been mailed, leaving a triable issue as to prematurity. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the denial of the provider's summary judgment motion intact.
Appellate Term, Second Department
Oct 13, 2016
2016 NY Slip Op 51533(U)
Split result
The parties' competing motions for summary judgment on the provider's no-fault claims were both denied on appeal. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion to dismiss the complaint and left the denial of the provider's motion intact, relying on the companion appeal decided the same day, No. 2014-635 Q C.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51535(U)
Insurer prevailed
The provider failed at trial to establish submission of the notice-of-intention affidavit required for no-fault recovery from MVAIC. Its billing manager testified that the claims had been mailed, and the Civil Court awarded judgment after a nonjury trial. Insurance Law § 5208 (a) (1), (3) makes timely filing of the affidavit a condition precedent, and compliance is required for covered-person status under Insurance Law § 5221 (b) (2). Because the provider did not establish submission of that affidavit, it failed to prove its prima facie case. The Appellate Term, Second Department, reversed the judgment and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51497(U)
Insurer prevailed
The defendant established untimely accident notice, timely denials, and the absence of a reasonable justification for the delay. A photocopy of the envelope containing the first notice documents showed postage and postmark dates of July 7, 2010, establishing mailing outside the period required by 11 NYCRR 65-2.4 (b). Neither the provider nor the assignor satisfied that condition precedent to coverage under 11 NYCRR 65-2.4 (a), (b). An affidavit from the third-party administrator's employee established timely mailing of the denials. Those denials offered to excuse late notice upon reasonable justification under 11 NYCRR 65-3.3 (e), but none was provided. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51496(U)
Provider prevailed
The provider's proof that verification was mailed and received raised a triable issue as to whether its no-fault action was premature. The insurer established proper mailing of initial and follow-up verification requests and nonreceipt of the requested material. In opposition, however, the provider's owner's affidavit gave rise to a presumption that the verification had been mailed to and received by the insurer. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, found a factual dispute over prematurity, reversed the order granting summary judgment dismissing the complaint, and denied the insurer's motion.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51495(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal Performance Plus Med., P.C. v Nationwide Ins., No. 2013-2766 Q C, decided the same day, addressing dismissal of the action as premature.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51500(U)
Provider prevailed
The provider's owner's affidavit raised a factual issue over receipt of requested verification and whether the action was premature. The insurer demonstrated that it had not received the verification, supporting its motion to dismiss the assigned no-fault action as premature. In opposition, the owner's affidavit created a presumption that the verification had been mailed to and received by the insurer. That proof left a triable issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion to dismiss the complaint.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51505(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., No. 2014-269 Q C, decided the same day.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51506(U)
Split result
The provider's owner's affidavit raised a factual issue over 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 the requested material had not been received. In opposition, the owner's affidavit created a presumption that the verification was mailed to and received by the insurer. The competing proof precluded dismissal as 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 motion intact.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51507(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., No. 2014-269 Q C, decided the same day.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51508(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal TAM Med. Supply Corp. v National Liab. & Fire Ins. Co., No. 2014-269 Q C, decided the same day.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51509(U)
Provider prevailed
The insurer's summary judgment motion based on outstanding verification was denied on appeal. The Civil Court had dismissed the provider's assigned no-fault action as premature for failure to supply requested verification. The Appellate Term, Second Department, reversed for the reasons stated in the companion appeal Mollo Chiropractic, PLLC v Farmington Cas. Co., No. 2013-2574 K C, decided the same day.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51510(U)
Provider prevailed
The insurer's summary judgment motion based on outstanding verification was denied on appeal. The Civil Court had dismissed the provider's assigned no-fault action as premature for failure to supply requested verification. The Appellate Term, Second Department, reversed for the reasons stated in the companion appeal decided the same day, No. 2013-2766 Q C.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51511(U)
Insurer prevailed
The insurer established proper mailing of verification requests and nonreceipt of the requested verification, making the action premature. The provider appealed dismissal of its assigned first-party no-fault claims. The insurer's submissions supported a presumption that both the initial and follow-up requests had been properly mailed and demonstrated that the verification remained outstanding. Following Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. on prematurity, the Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51512(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal Performance Plus Med., P.C. v Nationwide Ins., No. 2013-2766 Q C, decided the same day, addressing dismissal of the action as premature.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51513(U)
Split result
The insurer's cross motion for summary judgment based on outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order and left the denial of the provider's motion intact. It relied on the companion appeal Performance Plus Med., P.C. v Nationwide Ins., No. 2013-2766 Q C, decided the same day, addressing dismissal of the action as premature.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51536(U)
Provider prevailed
The insurer's summary judgment motion based on outstanding verification was denied on appeal. The provider sought assigned first-party no-fault benefits, and the Civil Court had dismissed the complaint as premature for failure to provide requested verification. The Appellate Term, Second Department, reversed for the reasons stated in the companion appeal Performance Plus Med., P.C. v Nationwide Ins., No. 2013-2766 Q C, decided the same day.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51537(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C, without supplying independent reasoning.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51538(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal decided the same day, No. 2013-2766 Q C, without supplying independent reasoning.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51541(U)
Split result
The insurer's cross motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order based on the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C. The provider's summary judgment motion remained denied.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51542(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C, without supplying independent reasoning.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51543(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C, without supplying independent reasoning.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51544(U)
Split result
The insurer's cross motion to dismiss the second through sixth causes of action on summary judgment for outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order, insofar as appealed from, relying on the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C. The provider's summary judgment motion on those claims remained denied.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51545(U)
Split result
The insurer's cross motion to dismiss the first through fifth causes of action on summary judgment for outstanding verification was denied on appeal. The Appellate Term, Second Department, modified the order, insofar as appealed from, relying on the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C. The provider's summary judgment motion on those claims remained denied.
Appellate Term, Second Department
Oct 11, 2016
2016 NY Slip Op 51546(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's claims as premature for outstanding verification was denied on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in the companion appeal, Performance Plus Med., P.C. v Nationwide Ins., decided the same day, No. 2013-2766 Q C, without supplying independent reasoning.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51441(U)
Insurer prevailed
An insurer need not pay or deny a claim upon receiving only a partial response to its verification requests. The provider challenged summary judgment dismissing its claims for failure to supply requested verification. Under 11 NYCRR 65-3.8 (a) (1) and (b) (3), payment or denial was not required until all demanded verification was provided. The provider's objections to the requests were rejected because it neither alleged nor demonstrated that it had objected during claims processing. The insurer's proof established presumptive mailing of the initial and follow-up requests and nonreceipt of the requested verification. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51443(U)
Provider prevailed
The insurer failed to establish mailing of verification requests for two claims and entitlement to dismissal of a third claim. In this action for assigned no-fault benefits, the insurer sought summary judgment dismissing the second and third causes of action as premature because verification remained outstanding. Its affidavits did not establish as a matter of law that the verification requests had been mailed. As to the first cause of action, the court relied on the reasons stated in High Quality Med. Supplies, Inc. v Mercury Ins. Group, the companion appeal decided the same day, No. 2014-1081 K C. The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51445(U)
Insurer prevailed
The provider failed to show exhaustion of remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. MVAIC submitted the assignor's sworn notice-of-intention form identifying the owner of the vehicle in which the assignor had been riding and providing an insurance policy number. Because the provider and assignor knew the owner's identity, exhaustion was required under Hauswirth v American Home Assur. Co. The provider did not demonstrate exhaustion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51439(U)
Provider prevailed
The defendant's IME doctor failed to establish personal knowledge of the assignor's nonappearance at the scheduled examinations. The defendant sought summary judgment dismissing the provider's assigned no-fault action on the ground that the assignor failed to attend duly scheduled IMEs. Although the doctor scheduled to perform the examinations submitted an affirmation, it did not establish the requisite personal knowledge of nonappearance. The Appellate Term, Second Department, therefore found that the defendant had not demonstrated entitlement to judgment as a matter of law, reversed the order granting dismissal, and denied its summary judgment motion.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51438(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 at the time of the accident. The provider did not demonstrate exhaustion of remedies against that owner, as required under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the resettled order, insofar as appealed from, denied the provider's motion for summary judgment, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51442(U)
Insurer prevailed
The insurer was granted summary judgment dismissing the sixth through eighth causes of action for failure to provide requested verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2014-766 Q C.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51444(U)
Provider prevailed
Omission of durable medical equipment from the applicable fee schedule does not itself bar reimbursement. The insurer sought summary judgment dismissing the provider's assigned no-fault claims on that basis. Although 12 NYCRR 442.2 (a) adopts the Medicaid durable medical equipment schedule for workers' compensation, 11 NYCRR 68.5 specifically addresses reimbursement for healthcare services omitted from fee schedules. Under 11 NYCRR 65-3.16 (a), medical expenses are paid in accordance with 11 NYCRR 68, and equipment reimbursement is regularly treated as interchangeable with healthcare-service reimbursement. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.
Appellate Term, Second Department
Oct 5, 2016
2016 NY Slip Op 51446(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge. The provider appealed a judgment dismissing its assigned first-party no-fault action after the Civil Court granted the insurer summary judgment. The insurer's motion relied on the provider's failure to attend EUOs, but its submissions lacked proof from a person with personal knowledge of that failure. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, and denied the insurer's motion for summary judgment dismissing the complaint.
Trial court, Second Department
Oct 17, 2016
2016 NY Slip Op 26352
A workers' compensation award did not bar the insurer's subrogation claim for additional personal injury protection payments beyond basic economic loss. The insurer sought recovery of contractual APIP payments after a workers' compensation award for the employee's accident. Under Insurance Law § 5102 (a) and (b) and § 5103 (a), workers' compensation covered statutory basic economic loss. Applying 11 NYCRR 65-1.3 and Allstate Ins. Co. v Stein, the Civil Court, Queens County, recognized that APIP subrogation rights arise in equity under common law and that the award might be distinguishable from those payments. It denied the defendants' CPLR 3211 (a) (1) and (5) dismissal motion and denied the insurer's CPLR 8303-a sanctions cross motion.
