Appellate Division, First Department
Jan 3, 2017
2017 NY Slip Op 00015
Insurer prevailed
The provider failed to offer a reasonable excuse for its untimely answer, and the insurer obtained a default declaration of no duty to pay. The Appellate Division, First Department, affirmed the default judgment under CPLR 3215 (a) and (f) and denial of the provider's cross motion for summary judgment and attorney fees. The insurer proved service, and the provider did not deny receipt. Moving for default judgment within 13 days of receiving the late answer defeated the contention that the insurer accepted it. Because the provider never properly filed an answer, issue was not joined, and CPLR 3212 (a) barred its summary judgment motion.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50101(U)
Provider prevailed
The insurer failed to establish a fee-schedule defense for codes 97039 and 99199 because it did not request needed verification. The provider billed moxibustion and acupressure under codes designated "By Report," which have no assigned relative value and require supporting documentation to determine reimbursement. Although the provider omitted that documentation, the insurer did not request additional verification within 15 business days under 11 NYCRR 65-3.5 (b) and did not demonstrate that it requested the needed information. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment dismissing the claims under those two codes.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50118(U)
Split result
The provider showed an excusable default but a potentially meritorious opposition only for the claim the insurer denied receiving. Under CPLR 5015 (a) (1), counsel's detailed, credible account of law office failure excused untimely opposition. The billing supervisor's affidavit of personal, timely mailing created a presumption of receipt of three claims. It rebutted nonreceipt for one claim but did not rebut the insurer's showing on two claims timely denied for EUO nonappearance. The Appellate Term, Second Department, modified the order to vacate dismissal and deny the insurer summary judgment on the disputed-receipt claim, and remitted for consideration of the provider's cross motion on that claim. It affirmed denial of vacatur for the two EUO claims.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50117(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for failure to provide requested verification was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, Advantage Radiology P.C. v Nationwide Mut. Ins. Co., No. 2015-2123 S C, without supplying independent reasoning.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50103(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted and affirmed on appeal. The Appellate Term, Second Department, rejected as meritless the provider's argument that the insurer took an adversarial position during claims processing in violation of 11 NYCRR 65-3.2 (b), without explaining its reasoning.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50105(U)
Insurer prevailed
The provider's database search did not justify renewal or excuse noncompliance with an order requiring Workers' Compensation Board review. Civil Court stayed the no-fault action pending resolution of whether the assignor was injured during employment, allowing dismissal absent a Board filing within 90 days or good cause. The provider later sought renewal based on a search finding no benefits application. Under CPLR 2221 (e) (2) and (3), renewal requires new facts changing the prior determination and reasonable justification for their earlier omission. Workers' Compensation Law §§ 28 and 33 require the injured worker to file within two years and prohibit assignment. The provider showed neither a proper application nor good cause. The Appellate Term, Second Department, affirmed dismissal and denial of renewal.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50106(U)
Insurer prevailed
The insurer's motion to dismiss was granted, and the provider's cross motion to renew its summary judgment motion was denied. The Appellate Term, Second Department, affirmed both rulings for the reasons stated in the companion appeal decided the same day, No. 2015-1649 Q C, involving the same parties.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50113(U)
Split result
The provider failed to establish its prima facie case, and the insurer failed to prove two missed EUOs. The provider did not show that the insurer failed to deny within 30 days or issued a timely denial that was conclusory, vague or meritless under Insurance Law § 5106 (a). The insurer's submissions showed several EUOs rescheduled at the assignor's attorney's request and one unrescheduled nonappearance, but did not establish two missed, duly scheduled EUOs. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion and denied that motion, while sustaining denial of the insurer's cross motion to dismiss. It passed on no other issue.
Appellate Term, Second Department
Jan 20, 2017
2017 NY Slip Op 50119(U)
Insurer prevailed
The insurer established full payment under the workers' compensation fee schedules and lack of medical necessity for later acupuncture services. The provider sought assigned no-fault benefits for acupuncture treatments. The insurer's litigation examiner's affidavit and supporting exhibits established payment in accordance with the applicable schedules for the earlier services, following Great Wall Acupuncture, P.C. v Geico Ins. Co. Its expert's sworn IME report established lack of medical necessity for the remaining services, which the insurer had timely denied. The provider raised no triable issue on either defense. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 6, 2017
2017 NY Slip Op 50042(U)
Insurer prevailed
The insurer established rescission of the Pennsylvania policy from inception based on the insured assignor's application misrepresentations. The insured represented residence and vehicle garaging in Pennsylvania, but the insurer discovered residence and garaging in the Bronx. The insurer submitted facts demonstrating rescission in accordance with Pennsylvania law under Erie Ins. Exch. v Lake and Klopp v Keystone Ins. Cos. The provider failed to rebut that showing, and issues raised for the first time on appeal were unpreserved and not considered. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jan 6, 2017
2017 NY Slip Op 50046(U)
Insurer prevailed
The defendant established untimely accident notice, and the provider offered no evidence of timely notice or reasonable justification. The defendant timely denied the claim under 11 NYCRR 65-2.4 (b), advising that reasonable justification could excuse notice given beyond 30 days. Counsel's speculation that the defendant might have learned of the accident otherwise raised no factual issue, and the provider did not show that 11 NYCRR 65-3.4 (a) required a different result. The NF-3 form was also submitted beyond 30 days; the court left open whether such a form could otherwise satisfy the written-notice requirement. The Appellate Term, Second Department, reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 6, 2017
2017 NY Slip Op 50039(U)
Insurer prevailed
The provider failed to exhaust remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. A rental company's letter stated that no first-party no-fault coverage had been offered when the vehicle was rented in New Jersey. That letter was not dispositive because Insurance Law §§ 370 and 5107 may deem the insurance to include such coverage in appropriate circumstances. Following Hauswirth v American Home Assur. Co., the court also rejected the contention that Insurance Law § 5221 (b) (6) required MVAIC to pay and pursue recovery through arbitration under Insurance Law § 5105. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 5, 2017
2017 NY Slip Op 50028(U)
Insurer prevailed
An assignor's appearance at a duly requested EUO is a condition precedent to coverage, whether requested before or after claim submission. The defendant's affidavits established timely mailing of the EUO notices and denial, and receptionists' affidavits established the assignor's failure to attend either scheduled EUO. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court rejected the provider's proposed distinction between nonappearance before and after submission of the claim form. Because the provider did not claim to have responded to the requests, its objections to them would not be heard. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the defendant.
Appellate Term, Second Department
Jan 5, 2017
2017 NY Slip Op 50029(U)
Provider prevailed
The insurer failed to establish valid Florida policy rescission because it did not prove notice or timely return or tender of premiums. The provider sought assigned benefits for a New York accident involving a vehicle insured under a Florida policy. The insurer asserted retroactive rescission based on misrepresentations about residence and garaging under Florida Statutes Annotated, title 37, § 627.409. Its submissions did not demonstrate that it sent a rescission notice or returned or tendered all premiums within a reasonable time after discovering the grounds for rescission. It therefore failed to establish that the policy was void from inception under Florida law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment cross motion.
Appellate Term, Second Department
Jan 5, 2017
2017 NY Slip Op 50031(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted on appeal. Treating the appeal as taken from the judgment under CPLR 5512 (a), the Appellate Term, Second Department, reversed, vacated the underlying order and denied the provider's summary judgment motion. It relied on the reasons stated in an earlier Bay LS Med. Supplies, Inc. v Allstate Ins. Co. decision.
Appellate Term, Second Department
Jan 5, 2017
2017 NY Slip Op 50037(U)
Insurer prevailed
The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript. The driver testified that the insured livery vehicle carried the assignors but was not involved in the reported accident. The unsigned transcript was admissible because it was certified. The providers' collateral estoppel argument failed because they did not establish that prior actions necessarily decided the identical coverage issue, that those determinations were decisive here, or that there was a full and fair opportunity to litigate coverage. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer established its defense, and the providers raised no triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
