Appellate Division, First Department
Mar 15, 2017
2017 NY Slip Op 01833
Insurer prevailed
An insurer preserves a fee-schedule defense by checking box 18 on the NF-10 denial form to assert noncompliance with the fee schedule. The insurer invoked the eight-unit rule based on reimbursement to another provider for services on overlapping dates. The arbitrator treated the denial as insufficiently specific because it did not identify that provider. The master arbitrator failed to address preservation and incorrectly characterized the defense as having been considered on the merits. The Appellate Division, First Department, reversed the denial of the insurer's petition and vacated the portion of the master arbitration award affirming unadjusted compensation. The award irrationally ignored controlling preservation law. The fee-schedule defense was remanded to a different arbitrator for determination on the merits.
Appellate Division, First Department
Mar 15, 2017
2017 NY Slip Op 01800
Insurer prevailed
The provider's 198 unrelated no-fault claims were properly severed because they presented no common issues of fact or law. The Appellate Division, First Department, affirmed an order on reargument adhering to severance under CPLR 603 and extending the provider's time to commence separate Civil Court actions. Although the order purported to deny reargument, it was appealable because it addressed the merits. Fraudulent incorporation supplied no common issue because the insurer stated it would not pursue that defense. A stay was also properly denied because adjudication of the separate contract claims did not depend on determination of the declaratory judgment cause of action.
Appellate Division, Second Department
Mar 1, 2017
2017 NY Slip Op 01552
Provider prevailed
A provider may recover an additional attorney's fee for an article 75 proceeding to confirm or vacate a master arbitration award. On reargument, the Appellate Division, Second Department, reversed the order and judgment, insofar as appealed from, granted the provider's fee request, and remitted for determination of the amount. Insurance Law § 5106 (a) and 11 NYCRR 65-4.10 (j) (4) authorize the adjudicating court to fix the fee for those services. The unexplained denial below could not stand: the court had authority to award a fee, and any merits basis was not evident from the record. The fee determination must state its evidentiary basis and exclude time spent applying for and substantiating the fee.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50403(U)
Provider prevailed
The insurer failed to prove timely denials permitting its policy-procurement misrepresentation defense. Civil Court denied the insurer's summary judgment cross motion because it found factual issues concerning the insured's alleged material misrepresentations in obtaining the policy. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the senior claims examiner's affidavit did not establish timely denial of the provider's claims. The insurer therefore failed to demonstrate that its misrepresentation defense was not precluded and did not establish prima facie entitlement to dismissal.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50396(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted on appeal. The Appellate Term, Second Department, reversed the denial for the reasons stated in Delta Diagnostic Radiology, P.C. v Infinity Group, also citing the companion appeal involving Remedial Medical Care, P.C., decided the same day, No. 2015-397 K C, without independently identifying the defense or explaining its reasoning.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50391(U)
Insurer prevailed
The insurer established timely rescission of the Pennsylvania policy, and the provider failed to raise a triable issue. The insurer sought dismissal of assigned no-fault claims based on alleged material misrepresentations by its insured assignor concerning residence and vehicle garaging. A litigation specialist's affidavit stated that the insurer gave written notice of the reason for rescission within 60 days of policy issuance and returned the premiums. The provider abandoned its argument that Pennsylvania law did not control. Following Delta Diagnostic Radiology, P.C. v Infinity Group, the Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50400(U)
Provider prevailed
The insurer's pattern of neglect did not warrant vacatur of the default judgment entered after it failed to oppose summary judgment. Under CPLR 5015 (a) (1), the insurer needed a reasonable excuse for failing to submit written opposition and potentially meritorious opposition to the provider's motion. CPLR 2005 permits acceptance of law office failure when supported by sufficient facts in evidentiary form, but a court need not excuse a pattern of neglect demonstrating serious inattention to the action. The record showed such a pattern. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion to vacate.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50402(U)
Provider prevailed
The insurer failed to connect the passenger assignor to alleged policy fraud or establish that the injuries arose outside an insured incident. Although the insurer timely denied the claims for fraudulent procurement, it offered no evidence that the assignor participated in or knew of the insured's alleged scheme. That omission defeated summary judgment on the policy-fraud defense. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., lack of coverage was not subject to preclusion, but the insurer's evidence also failed to establish that defense as a matter of law. The Appellate Term, Second Department, reversed the order granting summary judgment and denied the insurer's motion to dismiss the complaint.
Appellate Term, Second Department
Mar 31, 2017
2017 NY Slip Op 50407(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint for IME nonappearance was affirmed. The Appellate Term, Second Department, rejected the provider's sole argument, finding that the insurer's submissions neither raised a factual issue concerning mutual rescheduling of the first IME nor established mutual rescheduling as a matter of law.
Appellate Term, Second Department
Mar 29, 2017
2017 NY Slip Op 27097
Provider prevailed
An insurer cannot establish policy exhaustion through payments made after it denied a fully verified claim. The provider sued for assigned no-fault benefits after the insurer denied its claim for lack of medical necessity. The Appellate Term, Second Department, affirmed the denial of the insurer's summary judgment motion based on exhausted coverage. Although the exhaustion defense was not precluded by its omission from the denial, the denial implicitly declared the claim fully verified. Under Nyack Hosp. and 11 NYCRR 65-3.8 (b) (3) and 65-3.15, fully verified claims are payable in the order received; subsequent payments exhausting coverage did not establish entitlement to dismissal.
Appellate Term, Second Department
Mar 29, 2017
2017 NY Slip Op 50364(U)
Insurer prevailed
The insurer's peer review established lack of causal relation, and the provider's doctor's affidavit failed to rebut its conclusions. In support of its summary judgment cross motion, the insurer submitted an affirmed peer review showing that the treated injury was not causally related to the accident, together with proof of timely mailing of its denial. The provider's opposing affidavit did not meaningfully address the peer review's conclusions and raised no sufficient rebuttal. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion dismissing the complaint, without reaching the parties' remaining contentions.
Appellate Term, First Department
Mar 24, 2017
2017 NY Slip Op 50345(U)
Provider prevailed
The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's summary judgment motion in the assigned no-fault action. The insurer's fee-schedule proof was insufficient to establish prima facie entitlement to dismissal. Contrary to the provider's contention, however, timely verification and follow-up requests tolled the 30-day statutory period under 11 NYCRR 65-3.8 (a) (1), making the denial timely.
Appellate Term, First Department
Mar 24, 2017
2017 NY Slip Op 50347(U)
Provider prevailed
The insurer failed to establish proper and timely mailing of its denial through an affidavit from a nonparty's employee. In the provider's action for first-party no-fault benefits, the insurer sought summary judgment dismissing the complaint. The mailing affiant identified employment with a nonparty but showed neither a relationship between that entity and the insurer nor personal knowledge of the insurer's internal mailing practices during the relevant period. The affidavit therefore lacked probative value. The Appellate Term, First Department, affirmed the order denying the insurer's motion for summary judgment.
Appellate Term, First Department
Mar 20, 2017
2017 NY Slip Op 50331(U)
Provider prevailed
⚠ Not followed by Advanced Recovery v Allstate Ins. Co. (2021 NY Slip Op 21148)
The insurer failed to submit competent proof that the assignor missed the scheduled IMEs. The IME doctor's conclusory affirmation did not adequately explain the basis for recalling, approximately two years later, that the assignor had not appeared on the scheduled dates. The affirmation therefore lacked probative value and did not support summary judgment dismissing the provider's no-fault action. The Appellate Term, First Department, reversed the order granting the insurer's motion and denied it, without reaching the provider's waiver argument.
Appellate Term, First Department
Mar 20, 2017
2017 NY Slip Op 50332(U)
Insurer prevailed
An insurer relying on retroactive rescission under Florida law must prove compliance with that law rather than the basis for rescission. The insurer's litigation specialist's affidavit and other evidence established that a rescission notice was sent to the assignor-insured and all premiums were returned within a reasonable time after discovery of the grounds for rescission. The insurer thus established rescission of the Florida policy ab initio and absence of coverage. Following Craigg v Infinity Select Ins. Co., the Appellate Term, First Department, reversed, granted the insurer summary judgment and dismissed the complaint. The provider raised no triable issue, and its additional appellate arguments were unpreserved because they had not been raised below.
Trial court, First Department
Mar 20, 2017
2017 NY Slip Op 50574(U)
Provider prevailed
The insurer's medical-necessity and causation defenses were precluded by its late denial following an improperly scheduled IME. In a de novo action under Insurance Law § 5106 (c), the Supreme Court, New York County, denied the insurer's motion and granted the provider summary judgment. Pre-claim IME requests did not toll the denial period. Assuming the delay letter requested verification, its lateness reduced the denial period to 25 days; denial came 28 days after the IME. The rescheduled IME exceeded 11 NYCRR 65-3.5 (d)'s 30-day limit without consent or explanation. Excessive-fee defenses survived under 11 NYCRR 65-3.8 (g), but New Jersey Administrative Code 11:3-29.4 (f) (2) exempted add-on codes from reduction; CPT 64415's modifier supported full payment. The letter's validity remained undecided.
Trial court, Second Department
Mar 1, 2017
2017 NY Slip Op 27057
Provider prevailed
The insurer's postjudgment motion based on policy exhaustion was denied because it failed to prove that pleaded defense at trial. After a provider obtained a judgment following a trial de novo, the insurer sought to stay execution, reduce the judgment to zero, and obtain satisfaction entries. The District Court, Nassau County, denied the motion in its entirety. Under CPLR 3018 (b), the insurer bore the burden of pleading and proving exhaustion. It pleaded the defense and knew before trial that the limits had been exceeded, but presented no evidence of exhaustion at trial. Cases allowing postjudgment relief after summary judgment were distinguishable because those insurers lacked a full and fair opportunity to contest exhaustion.
