Appellate Term, Second Department
Sep 29, 2017
2017 NY Slip Op 51310(U)
Provider prevailed
The defendant failed to rebut proof of proper corporate service or reasonably excuse its approximately three-month delay in answering. The process server relied on an employee's representation of authority to accept process. Under Fashion Page v Zurich Ins. Co., such reasonable reliance sustains service calculated to give fair notice. The defendant supplied no affidavit denying that representation and did not show defective service under CPLR 311 (1). It also did not explain how the alleged lack of authority affected its ability to answer timely under CPLR 3012 (d). The Appellate Term, Second Department, affirmed denial of leave to answer late and grant of the provider's default-judgment cross motion under CPLR 3215, without deciding whether a potentially meritorious defense existed.
Appellate Term, Second Department
Sep 29, 2017
2017 NY Slip Op 51308(U)
Insurer prevailed
The provider's discovery challenge addressed a notice to produce rather than the interrogatories and deposition covered by the appealed order. Upon reargument, the Civil Court vacated its prior denial of the insurer's request to compel an examination before trial and directed the provider to resubmit complete interrogatory responses and any objections. The insurer was directed to serve the order with the interrogatories and a deposition notice. The provider's appellate argument concerned a notice to produce that the order did not mention and was irrelevant to the interrogatories. Because the provider made no specific argument concerning the deposition or interrogatories, the Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51240(U)
Insurer prevailed
The insurer's summary judgment based on the assignor's EUO nonappearance was affirmed after its scheduling letters were found to toll the deadline. The Appellate Term, Second Department, rejected the provider's sole appellate argument, finding that the initial and follow-up EUO letters properly tolled the time to pay or deny under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b).
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51235(U)
Insurer prevailed
The insurer's summary judgment dismissal for EUO nonappearance was affirmed after the provider's proof challenges were rejected. The Appellate Term, Second Department, found the assignor's nonappearance sufficiently established under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. It also rejected the provider's challenges to proof of mailing of the EUO scheduling letters and denial forms.
Appellate Term, First Department
Sep 22, 2017
2017 NY Slip Op 51209(U)
The Workers' Compensation Board has primary jurisdiction over factual questions concerning coverage under the Workers' Compensation Law. The insurer's submissions, including the assignor's statement, raised triable issues whether the assignor was acting in the course of employment and whether workers' compensation benefits might be available. The provider's objection to the statement's admissibility was unpreserved because it was first raised on appeal and the alleged defects could have been corrected below. The Appellate Term, First Department, reversed the order, insofar as appealed from, vacated it and remanded for a new determination of both summary judgment motions following a prompt Board application. The motions should have been held in abeyance pending the Board's determination.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51228(U)
Split result
The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer summary judgment on the fourth cause, citing 11 NYCRR 65-3.8 (a) (1). The provider also failed to establish entitlement to summary judgment on that claim because its proof did not show an untimely or legally insufficient denial. Dismissal of the first and fifth causes was affirmed because the insurer established full payment for services billed under code 64550 and the provider failed to rebut that showing. Denial of the provider's motion on the remaining causes was affirmed because receipt of those claims remained disputed.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51229(U)
Split result
EUO requests sent more than 30 days after receipt of claims are nullities as to those claims. The insurer obtained summary judgment dismissing six causes of action based on the assignor's failure to appear for duly scheduled EUOs. The Appellate Term, Second Department, modified the order to deny dismissal of the first through third causes because the EUO requests were sent beyond that interval. It affirmed dismissal of the fourth through sixth causes, finding that the insurer established timely mailing of the initial and follow-up EUO scheduling letters and the denials for those claims, citing 11 NYCRR 65-3.8 (l). The result preserved three causes for the provider and dismissed three in the insurer's favor.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51237(U)
Insurer prevailed
The insurer's summary judgment dismissal of fee-schedule claims was affirmed after the provider's mailing and fee-schedule challenges were rejected. The Appellate Term, Second Department, also affirmed denial of the provider's motion and the CPLR 3212 (g) finding of timely denials for the remaining claims, whose dismissal was denied. It rejected the fee-schedule argument under Great Wall Acupuncture, P.C. v Geico Ins. Co.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51247(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it supplied verification sought under the 120-day rule. The insurer obtained summary judgment based on a denial for failure to provide verification within 120 days of the initial request under 11 NYCRR 65-3.5 (o). Although the insurer demonstrated prima facie nonreceipt, the provider's opposing affidavit created a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, reversed the order and denied the insurer's motion because that proof raised a factual issue over whether the provider supplied the requested verification.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51258(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint was affirmed on its defense that it had issued no policy covering the loss. The Appellate Term, Second Department, relied on the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co. to uphold dismissal of the provider's assigned no-fault claim for suing the wrong party.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51246(U)
Insurer prevailed
The insurer's summary judgment dismissal for issuing no policy covering the loss was upheld after reargument and renewal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to dismissal of the provider's complaint for suing the wrong party, for the reasons stated in TAM Med. Supply Corp. v Omni Indem. Co.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51236(U)
Insurer prevailed
The defendant's summary judgment dismissing the complaint was affirmed on its defense of untimely accident notice. The Appellate Term, Second Department, relied on the reasons stated in Compas Med., P.C. v ELRAC, Inc. to uphold dismissal of the provider's assigned no-fault claim under 11 NYCRR 65-2.4 (a) and (b).
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51231(U)
Split result
The provider's medical affidavit raised a triable issue of medical necessity despite an adequately supported peer review. The insurer's peer review report sufficiently supplied a factual basis and medical rationale for finding the supplies medically unnecessary. The provider's opposing affidavit nevertheless prevented summary judgment dismissing the assigned no-fault claim. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the denial of the provider's own summary judgment motion in place.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51230(U)
Insurer prevailed
The insurer established untimely accident notice and claim submission, together with a timely denial on both grounds. The provider sought summary judgment on its assigned no-fault claims, and the insurer cross-moved for dismissal. As to the claim at issue on appeal, the record established noncompliance with the notice and submission requirements of 11 NYCRR 65-1.1. The Appellate Term, Second Department, also sustained the insurer's proof of timely denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It affirmed the order, insofar as appealed from, denying the provider summary judgment and granting the insurer summary judgment dismissing that claim.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51233(U)
Provider prevailed
The insurer's cross motion for summary judgment based on untimely claim submission was denied because a factual issue remained. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's favor, finding a triable issue on timely submission under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51238(U)
Insurer prevailed
The insurer's summary judgment dismissal of the second cause was affirmed after the provider's denial-mailing challenge was rejected. The Appellate Term, Second Department, also sustained the CPLR 3212 (g) finding of proper denial mailing for the first cause, for which summary judgment had been denied. The provider's sole appellate contention concerned mailing, and the decision found the insurer's proof sufficient.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51239(U)
Split result
The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment. In this assigned no-fault action, the Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the third through seventh causes of action, while affirming denial of the provider's motion on the second through seventh causes. The provider's affidavit supported a presumption that verification for the third through fifth causes was mailed and received, raising an issue of prematurity. For the sixth and seventh causes, the insurer failed to establish full fee-schedule payment, while the provider failed to show untimely or legally insufficient denials. Factual issues also remained on the second cause.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51243(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for failure to appear for EUOs was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2014-1811 Q C.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51244(U)
Insurer prevailed
The insurer's summary judgment dismissing the complaint for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, found the insurer's proof sufficient to establish proper mailing of the denials and verification requests and nonappearance at the scheduled EUOs. It rejected the provider's remaining argument as improperly raised for the first time on appeal and, alternatively, without merit.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51248(U)
Provider prevailed
The provider's affidavit created a presumption of verification receipt and raised a triable issue concerning prematurity. The insurer's proof established proper mailing of initial and follow-up verification requests and nonreceipt of the requested verification. Although that proof supported dismissal of the assigned no-fault action as premature, the provider's opposing affidavit created a presumption that the requested verification had been mailed to and received by the insurer. The competing proof required resolution of a factual issue. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion dismissing the complaint.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51249(U)
Split result
The insurer proved full fee-schedule payment of some claims but failed to establish mailing of IME notices for another claim. The provider did not rebut timely denials and full payment under the chiropractors' acupuncture fee schedule. For the IME-based claim, the vendor's affidavit was notarized a year before the year of the Civil Court index number appearing on it, defeating proof of mailing. The provider also failed to establish an untimely or legally deficient denial of that claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the fee-schedule claims and deny the provider's motion on the IME-based claim; the insurer's cross motion on that claim remained denied.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51250(U)
Split result
The insurer failed to establish a timely denial of the sixth claim on its EUO nonappearance defense. The provider also failed to establish entitlement to summary judgment on that claim because its proof showed neither an untimely denial nor a timely denial that 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 as to the sixth cause of action, leaving the provider's motion denied. It affirmed dismissal of the remaining causes of action for the reason stated in the companion appeal decided the same day, No. 2014-2015 Q C.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51251(U)
Provider prevailed
The provider's affidavit raised a triable issue as to verification receipt and defeated the insurer's prematurity motion. The insurer made a prima facie showing that it had properly mailed initial and follow-up verification requests and had not received the requested verification. The provider's opposing affidavit nevertheless created a presumption that the verification had been mailed to and received by the insurer. That conflicting proof left a factual issue over whether the action for assigned no-fault benefits was premature. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion dismissing the complaint.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51252(U)
Insurer prevailed
An insurer may use the chiropractors' acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's services. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld dismissal of claims billed under CPT codes 97810 and 97811 and rejected the provider's mailing challenge. It also upheld denial of the provider's summary judgment motion because its proof did not establish untimely denials or legally deficient timely denials. The provider failed to object to discovery within CPLR 3122 (a) and 3133 (a) and showed no demands were palpably improper or privileged, requiring disclosure. The order, insofar as appealed from, was affirmed, including the insurer's fee-schedule relief and motion to compel.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51253(U)
Insurer prevailed
The provider's summary judgment was reversed because the insurer raised factual issues concerning timely denials and medical necessity. The Appellate Term, Second Department, deemed the appeal to be from the ensuing judgment under CPLR 5512 (a) and found the insurer's opposing proof sufficient on both issues. It reversed the judgment, vacated the order granting summary judgment and denied the provider's motion.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51254(U)
Insurer prevailed
The insurer's summary judgment dismissing the second through fourth causes of action for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, found the insurer's affirmation sufficient to establish nonappearance, rejecting the provider's sole challenge to the cross motion under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. It also affirmed denial of the provider's summary judgment motion on those claims.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51261(U)
Provider prevailed
The provider's mailing affidavit raised a factual issue over verification receipt despite the insurer's prima facie showing of prematurity. The insurer established proper mailing of its initial and follow-up verification requests and nonreceipt of the requested verification. The provider's opposing affidavit, however, created a presumption that it had mailed the verification and that the insurer had received it. The competing submissions left a triable issue as to whether the assigned no-fault action was premature. 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
Sep 22, 2017
2017 NY Slip Op 51262(U)
Insurer prevailed
The insurer's proof established timely denials, resolving the sole remaining issue on its IME nonappearance defense. The Civil Court denied the insurer's summary judgment motion but, in effect under CPLR 3212 (g), limited the remaining trial issue to timely and proper mailing of the denial forms. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, found the insurer's mailing proof sufficient, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Sep 22, 2017
2017 NY Slip Op 51263(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal. The Appellate Term, Second Department, found that the insurer established timely mailing of initial and follow-up IME letters, nonappearance on both dates and timely denials, while the provider raised no triable issue. It reversed the order and granted summary judgment dismissing the provider's complaint.
Appellate Term, First Department
Sep 19, 2017
2017 NY Slip Op 51170(U)
Split result
The insurer failed to establish that services billed under CPT code 97039 were nonreimbursable as outside the provider's specialty. The Appellate Term, First Department, modified the order granting the insurer summary judgment by reinstating the provider's claim under that code and otherwise affirmed. The insurer's submissions did not establish its contention that the service was a physical medicine modality outside the provider's specialty, leaving factual issues over the propriety of the denial. The remaining claims at issue on appeal were properly dismissed as premature because the provider undisputedly failed to respond to duly issued verification requests. The provider prevailed on the code 97039 claim, while the insurer prevailed on the remaining claims.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51198(U)
Insurer prevailed
The defendant's summary judgment dismissing the complaint was affirmed on the defense of untimely claim submission under 11 NYCRR 65-2.4 (c). The Appellate Term, Second Department, relied on the reasons stated in Greenway Med. Supply Corp. v ELRAC, Inc. to uphold dismissal of the provider's claim for assigned no-fault benefits.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51186(U)
Insurer prevailed
The insurer's proof supported a presumption that the IME scheduling letters and denial forms had been properly mailed. The provider appealed summary judgment dismissing its assigned no-fault action based on the assignor's failure to appear for duly scheduled IMEs. Following St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the Appellate Term, Second Department, rejected the provider's challenges to the insurer's mailing proof. It found the provider's remaining arguments moot or without merit and affirmed the order dismissing the complaint in the insurer's favor.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51187(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the assignor's IME nonappearance was granted. The Appellate Term, Second Department, affirmed the order in the insurer's favor for the reasons stated in Sama Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., the companion appeal decided the same day, No. 2014-1102 K C.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51189(U)
Insurer prevailed
The insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal. The Appellate Term, Second Department, also affirmed denial of the provider's summary judgment motion. It cited St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. in rejecting the merits arguments, without identifying the underlying defense.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51190(U)
Insurer prevailed
The insurer's proof raised a factual issue over receipt of the claim underlying the fifth cause of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and dismissing the first through fourth, sixth and seventh causes in the insurer's favor. Summary judgment for the provider on the fifth cause was properly denied because claim receipt remained disputed. Dismissal of the other causes, based among other grounds on untimely accident notice, was sustained for the reasons stated in the companion appeal decided the same day, No. 2014-1826 Q C. The provider's remaining arguments were academic.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51191(U)
Insurer prevailed
The insurer established untimely notice of the accident, and the provider failed to rebut that proof. The insurer cross-moved to dismiss the provider's assigned no-fault action on that ground, among others, under 11 NYCRR 65-1.1 (d). The Appellate Term, Second Department, affirmed the order denying the provider summary judgment and granting the insurer summary judgment dismissing the complaint. Because the unrebutted notice proof supported dismissal, the provider's remaining appellate arguments were academic.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51192(U)
Insurer prevailed
The insurer's evidence raised an issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board. The evidence supported a question whether the assignor was acting as an employee at the time of the accident and workers' compensation benefits might be available. Under O'Rourke v Long, that issue belonged first before the Board. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment on the first, second, fourth and fifth causes of action. It also affirmed conditional dismissal of those causes unless the provider filed proof within 90 days showing that the underlying claims had been filed with the Board, sustaining the insurer's requested relief.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51193(U)
Insurer prevailed
The insurer's proof raised a factual issue over receipt of the claims underlying the third and fourth causes of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment. It also affirmed conditional dismissal of the first, second, fifth, sixth and seventh causes based on alleged workers' compensation eligibility unless the provider filed proof within 90 days that those claims had been filed with the Workers' Compensation Board. For that portion, it relied on the reasons stated in the companion appeal decided the same day, No. 2014-1830 Q C. The insurer prevailed on the appeal, and the provider's remaining contentions were academic.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51194(U)
Split result
The provider's mailing affidavit raised a factual issue over whether its claims were premature for outstanding verification. The insurer made a prima facie showing that it had not received requested verification for the first through fourth, sixth and seventh causes of action. The provider's opposing affidavit, however, supported a presumption of mailing and receipt under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion dismissing those causes as premature. It affirmed denial of the provider's motion on the same causes, leaving the verification dispute for resolution.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51196(U)
Provider prevailed
The provider's affidavit raised a factual issue over whether requested verification remained outstanding. The insurer sought summary judgment dismissing the assigned no-fault action as premature for failure to supply verification. Although the insurer made a prima facie showing of nonreceipt, the provider's opposing affidavit supported a presumption that the verification had been mailed and received under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. The Civil Court had limited the trial issue, under CPLR 3212 (g), to whether verification remained outstanding.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51197(U)
Insurer prevailed
The provider's summary judgment motion on one claim was denied on appeal because the propriety of the insurer's denial remained disputed. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion on that claim. It dismissed the provider's cross appeal concerning dismissal of the remaining claims as abandoned.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51199(U)
Provider prevailed
The insurer's doctor's affidavit failed to establish the assignor's IME nonappearance through personal knowledge or other appropriate proof. The insurer sought summary judgment dismissing assigned no-fault claims based on allegedly timely and proper denials for IME nonappearance. The Civil Court denied that motion and the provider's cross motion, while making findings in the provider's favor under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the affidavit did not establish the insurer's entitlement to dismissal. The insurer also failed to articulate a sufficient basis to strike the CPLR 3212 (g) findings.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51200(U)
Provider prevailed
The insurer's motion for summary judgment based on the assignor's alleged IME nonappearance was denied. The Appellate Term, Second Department, affirmed the order in the provider's favor for the reasons stated in Kappa Med., P.C. v Chubb Indem. Ins. Co., the companion appeal decided the same day, No. 2015-49 Q C.
Appellate Term, Second Department
Sep 15, 2017
2017 NY Slip Op 51201(U)
Provider prevailed
The provider's deposition noncompliance warranted testimony preclusion rather than dismissal within the motion court's discretion. A conditional discovery order required another deposition notice and specified preclusion of testimony on medical necessity and fee-schedule compliance for nonappearance. The insurer did not appeal that order and later sought dismissal under CPLR 3126 (3). The Civil Court denied dismissal and imposed the specified testimony preclusion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's favor. The nature and degree of a disclosure sanction lie within the motion court's discretion, and the record supported preclusion under CPLR 3126 (2) without dismissal.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51141(U)
Insurer prevailed
The insurer established proper application of the workers' compensation fee schedule to CPT code 20553, and the provider did not rebut its showing. Both parties' summary judgment motions had initially been denied in this action for assigned no-fault benefits. Upon reargument, the Civil Court granted the insurer's cross motion dismissing the complaint on the ground that the services had been paid in accordance with the fee schedule. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The provider's argument concerning CPT code 99203 was improperly raised for the first time on appeal.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51154(U)
Insurer prevailed
An insurer may use the chiropractic acupuncture fee schedule to determine reimbursement for a licensed acupuncturist's acupuncture services. The provider challenged fee reductions based on the workers' compensation schedule for acupuncture performed by chiropractors. Applying Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the first through fifth causes of action. It also affirmed the direction compelling the provider to appear for a deposition because the insurer defended the remaining cause on lack of medical necessity. The insurer prevailed on both the fee-schedule and discovery issues, while the remaining cause was not dismissed.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51157(U)
Provider prevailed
The insurer's summary judgment motion was denied on appeal because it failed to establish fees exceeding the applicable fee schedule. The Appellate Term, Second Department, reversed the order dismissing the provider's assigned no-fault action, finding that the insurer's motion papers did not establish, as a matter of law, charges exceeding amounts permitted by the workers' compensation fee schedule.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51158(U)
Provider prevailed
The insurer failed to establish proper mailing of IME notices or appropriate application of Ground Rule 11 to the disputed claims. The insurer sought summary judgment dismissing some claims based on the assignor's failure to attend two IMEs and others based on payment under the workers' compensation fee schedule. Its mailing proof did not give rise to a presumption that the IME scheduling letters had been properly mailed. It also did not demonstrate that Ground Rule 11 was appropriately applied to the remaining claims at issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on those claims.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51151(U)
Split result
The defendant failed to prove the assignor's IME nonappearances because its affiants did not establish personal knowledge. Affidavits from the chiropractor and acupuncturist scheduled to conduct the IMEs did not establish entitlement to summary judgment dismissing the provider's complaint. The provider's cross motion was also properly denied because it did not establish that the denial forms were conclusory, vague or meritless as a matter of law. In any event, the defendant's affidavits raised triable issues. The Appellate Term, Second Department, modified the order to deny the defendant's motion and otherwise affirmed, leaving both sides without summary judgment.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51149(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractors' acupuncture services to reimburse a licensed acupuncturist. The provider challenged fee reductions for services billed under CPT codes 97810 and 97811, arguing that the defendant had not established their propriety. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, rejected that argument and affirmed the order, insofar as appealed from, granting the defendant summary judgment dismissing the claims for those services.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51136(U)
Provider prevailed
The insurer failed to establish mailing of the assignor's IME scheduling letters and was denied summary judgment on the nonappearance defense. The Civil Court had dismissed the provider's action for assigned first-party no-fault benefits based on the assignor's failure to appear for two purportedly properly scheduled IMEs. The Appellate Term, Second Department, reversed and denied that branch of the insurer's motion because mailing was not established. The court remitted the matter for determination of the insurer's separate contention that it had paid for the services under the workers' compensation fee schedule, which the Civil Court had not decided.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51137(U)
Insurer prevailed
The insurer established timely EUO notices and denials, the provider's nonappearance, and entitlement to dismissal without a triable factual issue. The Civil Court had denied the insurer's motion for summary judgment dismissing the provider's action for assigned first-party no-fault benefits. The insurer's motion established timely mailing of the initial and follow-up EUO scheduling letters, the provider's failure to appear on either date, and timely denial of the claims on that ground. Because the provider failed to raise a triable issue in opposition, the Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51138(U)
Split result
The insurer proved nonreceipt of one claim form but failed to establish that other billed fees exceeded the workers' compensation fee schedule. In the provider's action for assigned first-party no-fault benefits, the insurer obtained summary judgment dismissing the complaint. The Appellate Term, Second Department, affirmed dismissal of the first cause of action because the insurer's proof sufficiently demonstrated nonreceipt of its underlying claim form. The court modified the order to deny summary judgment dismissing the second cause of action because the insurer's motion papers did not establish that the challenged charges exceeded permitted amounts.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51139(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint on full-payment grounds was granted and affirmed on appeal. The Appellate Term, Second Department, rejected the provider's arguments challenging the adequacy of the insurer's proof that it had fully paid the claims for assigned first-party no-fault benefits.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51140(U)
Split result
The provider's affidavit raised a factual issue over receipt of requested verification and whether the second cause of action was premature. Although the insurer demonstrated prima facie that it had not received the verification, the provider's opposing affidavit created a presumption that the verification had been mailed to and received by the insurer. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the second cause of action. It affirmed dismissal of the first, third, and fourth causes of action, rejecting the provider's contention that the insurer's proof was insufficient to establish full payment of those claims.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51142(U)
Split result
The insurer failed to establish full payment under the workers' compensation fee schedule for the claim underlying the first cause of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion for summary judgment on that cause of action, while affirming denial of the provider's motion. The provider failed to establish prima facie entitlement to summary judgment because its proof did not show that the claims had not been timely denied or that timely denials were conclusory, vague, or without merit as a matter of law.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51143(U)
Insurer prevailed
An insurer may use the chiropractor acupuncture fee schedule to determine reimbursement for services performed by a licensed acupuncturist. The provider challenged the insurer's proof that its fee reductions were proper in an action to recover assigned first-party no-fault benefits. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, applied that rule as a matter of law and affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51144(U)
Insurer prevailed
The provider's request to establish facts under CPLR 3212 (g) after denial of summary judgment was rejected on appeal. 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. 2014-1926 K C. Both parties' summary judgment motions remained denied because of triable factual issues.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51145(U)
Insurer prevailed
The insurer's summary judgment motion on chiropractor-rate acupuncture claims was granted despite other claims paid at the medical doctor rate. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal of the challenged claims and denying the provider summary judgment. The court rejected the provider's sole argument under Apple Tree Acupuncture, P.C. v Progressive Northeastern Ins. Co.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51146(U)
Split result
The insurer's summary judgment motion on two claims was denied on appeal because its application of Ground Rule 11 raised a factual issue. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of those claims under the workers' compensation fee schedule. The court otherwise affirmed, leaving intact the denial of the provider's cross motion for summary judgment on those claims.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51147(U)
Insurer prevailed
The insurer established that it had not received timely notice of the accident, and the provider failed to rebut that proof. In this action to recover assigned first-party no-fault benefits, the insurer sought summary judgment on that defense, among others, under 11 NYCRR 65-1.1. 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. The court reached no other issue.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51152(U)
Insurer prevailed
The insurer's summary judgment dismissal for EUO nonappearance was affirmed after the provider's mailing challenges were rejected. The Appellate Term, Second Department, found no merit in the challenges to proof that EUO scheduling letters and denial forms were timely and properly mailed, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51153(U)
Insurer prevailed
The provider's request for findings limiting trial issues under CPLR 3212 (g) after denial of summary judgment was rejected on appeal. The Civil Court had denied both parties' summary judgment motions upon finding factual issues. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, declining the provider's request and citing S & R Med., P.C. v GEICO Gen. Ins. Co.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51155(U)
Insurer prevailed
The insurer's proof supported a presumption of proper denial mailing, and the provider's remaining challenge was first raised on appeal. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The Appellate Term, Second Department, sustained the mailing proof under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Residential Holding Corp. v Scottsdale Ins. Co. It declined to consider the provider's other argument concerning the cross motion because that argument was not properly before it. The order denying the provider summary judgment and granting the insurer summary judgment dismissing the complaint was affirmed.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51156(U)
Insurer prevailed
The insurer's summary judgment dismissal was affirmed because its proof sufficiently demonstrated the assignor's EUO nonappearance. The Appellate Term, Second Department, rejected the provider's sole appellate contention challenging that proof, citing Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., and sustained dismissal of the assigned no-fault action in the insurer's favor.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51159(U)
Insurer prevailed
The insurer's summary judgment dismissal was affirmed after the provider's challenge to proof of IME nonappearance was rejected. The Appellate Term, Second Department, found no merit in the provider's challenge to the sufficiency of proof that the assignor failed to appear, citing Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co.
Appellate Term, Second Department
Sep 8, 2017
2017 NY Slip Op 51160(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to establish untimely or legally insufficient denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the insurer's favor, finding no showing that the claims were not denied within 30 days or that timely denials were conclusory, vague or without merit as a matter of law.
Appellate Term, Second Department
Sep 1, 2017
2017 NY Slip Op 51121(U)
Provider prevailed
The insurer's explanation of law office failure during a file transfer showed attorney neglect and did not reasonably excuse its default. The provider obtained a default judgment after its summary judgment motion went unopposed. To vacate under CPLR 5015 (a), the insurer had to show a reasonable excuse and a potentially meritorious defense. Although CPLR 2005 permits law office failure as an excuse, it requires a detailed and credible explanation. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate, finding no improvident exercise of discretion. Without a reasonable excuse, the court did not reach whether the insurer had a potentially meritorious defense.
