Appellate Division, First Department
Oct 26, 2017
2017 NY Slip Op 07538
Insurer prevailed
The provider's principal failed to comply with an EUO by refusing questions about a public professional misconduct consent order. The Appellate Division, First Department, affirmed summary judgment declaring that the insurers owed no benefits on the 31 claims. Public Health Law § 230 (17) confidentiality did not apply to the public consent order imposing probation under Public Health Law § 230-a. The order defined practice without monitoring as unauthorized practice; under Mallela and 11 NYCRR 65-3.16 (a) (12), insurers could investigate eligibility in good faith. The refusal breached a coverage condition precedent. Res judicata and award and arbitration defenses were waived under CPLR 3211 (e) because the provider never sought to amend its answer.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51450(U)
Provider prevailed
A motion for leave to reargue cannot introduce facts omitted from the original motion. The insurer initially sought summary judgment based on a fee-schedule reduction for CPT code 20553, supplying the relative value but neither the conversion factor nor an explanation. On reargument, it first supplied the conversion factor and asserted a calculation supported the reduction, without identifying any fact or law overlooked or misapprehended. Under CPLR 2221 (d) (2), those new facts were improper on reargument. The insurer neither sought renewal nor explained the omission as required by CPLR 2221 (e) (3). The Appellate Term, Second Department, reversed, denied reargument and reinstated the denial of the insurer's summary judgment motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51454(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearance was granted on appeal as to two claims. The Appellate Term, Second Department, found that the insurer established timely mailing of initial and follow-up EUO letters, nonappearance on both dates and timely denials, while the provider raised no triable issue. It reversed the order, insofar as appealed from, and dismissed those claims.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51452(U)
Provider prevailed
An insurer must request missing documentation for a By Report claim before denying it for lack of that documentation. The provider billed services under CPT code 97039, which required additional documentation to determine reimbursement under the workers' compensation fee schedule. Under 11 NYCRR 65-3.5 (b), an insurer declining to pay the submitted claim must request required verification within 15 business days of receipt. The insurer never requested the documentation, making its denial meritless as a matter of law. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the insurer's motion and granted the provider's cross motion on that claim, remitting for statutory interest and attorney's fees under Insurance Law § 5106.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51466(U)
Insurer prevailed
The insurer's EUO letters supported tolling, and its proof established the assignor's failure to appear for the EUOs. The provider argued that the insurer relied on letters seeking no documents or information to toll the time to pay or deny. The insurer, however, alleged that it sent EUO scheduling letters, attached them to its cross motion, and faced no challenge to their sufficiency. The Appellate Term, Second Department, also rejected the provider's challenge to the nonappearance proof and affirmed the order denying the provider summary judgment and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51459(U)
Insurer prevailed
MVAIC established that the provider failed to timely file the notice-of-intention affidavit required by Insurance Law § 5208 (a). The provider's sole appellate contention challenged that showing. Because the affidavit was not timely filed, the assignor was not a covered person under Insurance Law § 5221 (b) (2), and a condition precedent to seeking no-fault payment from MVAIC was unsatisfied. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51461(U)
Provider prevailed
The insurer's first IME was not scheduled to be held within 30 days of receipt of the claims, warranting judgment for the provider. The insurer appealed the grant of summary judgment to the provider on the first two causes of action and the denial of its cross motion to dismiss those causes of action. The scheduling failed to comply with 11 NYCRR 65-3.5 (d). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's summary judgment on those two causes of action intact.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51467(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger. The provider therefore had to exhaust remedies against that owner before seeking relief from MVAIC, and did not show that it had done so. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51448(U)
Insurer prevailed
The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal. The provider's sole argument concerning those claims challenged proof of nonappearance. The Appellate Term, Second Department, rejected that challenge and affirmed the order, insofar as appealed from, denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the second, third, fourth, eighth and ninth causes of action. The provider's contention concerning the first cause of action was not properly before the appellate court because that branch of its motion remained pending and undecided.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51449(U)
Insurer prevailed
The provider's attorney's heavy workload did not reasonably excuse the failure to submit timely opposition to summary judgment. The Civil Court declined to consider the provider's late opposition and granted the insurer's motion on default. The provider then sought vacatur under CPLR 5015 (a) (1). Its attorney's explanation amounted to mere neglect rather than an excusable default. The Appellate Term, Second Department, affirmed the denial of vacatur and found it unnecessary to consider whether the provider had demonstrated potentially meritorious opposition to the insurer's motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51451(U)
Split result
The insurer's affidavits failed to establish timely mailing, and the provider's affidavit failed to establish its prima facie case. The insurer sought summary judgment based on the assignor's IME nonappearance and charges exceeding the workers' compensation fee schedule. Its affidavits inadequately described office practices ensuring timely mailing of verification requests and denials. The provider's affidavit did not establish untimely denials or timely denials that were conclusory, vague or meritless as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed the denial of the provider's motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51453(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it had supplied the requested verification. The insurer obtained summary judgment dismissing the assigned no-fault action as premature based on the provider's alleged failure to respond to verification requests. The provider's opposing affidavit created a presumption that the requested 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 concerning prematurity.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51455(U)
Split result
The insurer failed to establish timely denials preserving its fee-schedule defense to three claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny summary judgment dismissing those claims, for which the insurer asserted it had already paid the applicable workers' compensation fee-schedule amounts. It upheld the fee-schedule reduction of the amount in controversy on two other claims, as to which medical necessity remained a triable issue. The provider's cross motion remained denied because its affidavit failed to establish that the claims were untimely denied or that timely denials were conclusory, vague or without merit as a matter of law.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51456(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, also affirmed the denial of the provider's cross motion for summary judgment or, alternatively, to strike the insurer's answer and compel discovery. It relied on the reasons stated in an earlier Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co. decision.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51457(U)
Split result
The insurer failed to prove proper mailing of the EUO scheduling letters, while the provider failed to establish its prima facie case. In this action for assigned no-fault benefits, the insurer sought dismissal based on the provider's failure to appear for EUOs. The legal secretary's affidavit that the insurer claimed established mailing was absent from its cross motion. The provider's proof did not establish that the claims were untimely denied or that timely denials were conclusory, vague or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and left the denial of the provider's motion intact.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51458(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted. The provider's cross motion for summary judgment or, alternatively, to strike the answer and compel discovery was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51460(U)
Split result
The insurer established full payment for CPT codes 97810 and 97811 under the workers' compensation fee schedule for chiropractors' acupuncture. Its proof also created a presumption that the denial forms were timely mailed. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld dismissal of the claims for those services and the fee schedule reduction of the provider's $80 claim under CPT code 99203. The provider received summary judgment for $54.74 on that claim, while the insurer received summary judgment dismissing the additional $25.26 sought. The appellate court affirmed the order, insofar as appealed from, rejecting the provider's request for full recovery and denial of the insurer's cross motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51462(U)
Provider prevailed
The provider's affidavit raised a factual issue about receipt of requested verification, defeating the insurer's prematurity motion. The insurer made a prima facie showing that it had not received the verification. In opposition, the provider submitted an affidavit sufficient to create a presumption that the verification had been mailed to and received by the insurer under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Civil Court denied summary judgment and, in effect under CPLR 3212 (g), limited trial to whether verification remained outstanding. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51463(U)
Provider prevailed
The insurer's affidavit failed to establish timely mailing of its denial forms through a sufficient office practice or procedure. The provider appealed from summary judgment dismissing its assigned no-fault benefits complaint. Under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the affidavit did not sufficiently describe a standard practice or procedure ensuring timely mailing. The insurer therefore failed to demonstrate entitlement to judgment as a matter of law. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51464(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for EUO nonappearance was granted. The provider's cross motion for summary judgment or, alternatively, to strike the answer and compel discovery was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in Professional Health Imaging, P.C. v State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51465(U)
Insurer prevailed
The insurer was granted summary judgment because its proof established that it had issued no policy covering the loss. The Appellate Term, Second Department, affirmed, finding the proof sufficient under Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. and concluding that the provider had sued the wrong insurer. The provider's remaining arguments were either raised for the first time on appeal or lacked merit.
Appellate Term, Second Department
Oct 27, 2017
2017 NY Slip Op 51468(U)
Provider prevailed
The insurer failed to show that it had requested the assignor's affidavit from the provider, defeating its prematurity defense. In this action for assigned no-fault benefits, the insurer argued that it had not received all requested verification. Its papers did not show that the particular verification at issue had ever been requested from the provider, so it raised no triable issue concerning outstanding verification. The Appellate Term, Second Department, deemed the appeal to be from the judgment under CPLR 5501 (c) and affirmed the judgment awarding the provider benefits.
Appellate Term, First Department
Oct 26, 2017
2017 NY Slip Op 51415(U)
Insurer prevailed
The insurer's unrebutted peer review testimony established that electromyography and nerve conduction testing lacked medical necessity. The parties limited the nonjury trial to medical necessity and stipulated to the peer review doctor's expertise and admission of the report. The doctor explained that no diagnostic dilemma warranted testing because the assignor was not neurologically deteriorating and was responding to chiropractic treatment. The testimony, expressly found credible, supplied a factual basis and medical rationale for the defense, shifting the burden to the provider to present evidence of medical necessity. The provider called no rebuttal witnesses. The Appellate Term, First Department, reversed the provider's judgment and directed judgment for the insurer dismissing the complaint.
Appellate Term, Second Department
Oct 20, 2017
2017 NY Slip Op 51407(U)
Insurer prevailed
The defendant's summary judgment dismissal for nonreceipt of the claim was affirmed after the provider failed to raise a mailing issue of fact. The Appellate Term, Second Department, found no triable issue whether the provider mailed the claim, citing Zuckerman v City of New York. It also rejected the remaining contentions as first raised on appeal and, in any event, meritless.
Appellate Term, Second Department
Oct 20, 2017
2017 NY Slip Op 51408(U)
Provider prevailed
The provider's opposing affidavit raised a triable issue as to whether its action was premature for outstanding verification. The insurer obtained summary judgment dismissing the action for assigned no-fault benefits on the ground that the provider had failed to furnish requested verification. The affidavit created a presumption that the verification had been mailed to and received by the insurer. That proof raised a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Oct 11, 2017
2017 NY Slip Op 51346(U)
Insurer prevailed
A failure to deny a claim within 30 days does not preclude a defense that coverage limits have been exhausted. MVAIC properly paid part of the provider's acupuncture claims under the workers' compensation fee schedule, but triable issues remained concerning claims denied because maximum payment for the billed codes had allegedly been made. The submissions raised questions whether payments to another provider partially exhausted coverage and whether those payments complied with insurance department regulations. The Appellate Term, First Department, affirmed denial of the provider's summary judgment motion and dismissed its appeal from denial of MVAIC's motion because the provider was not aggrieved by that ruling.
Appellate Term, Second Department
Oct 6, 2017
2017 NY Slip Op 51350(U)
Provider prevailed
A court may impose sanctions or award costs on its own initiative only after a reasonable opportunity to be heard. In the provider's no-fault action, the Civil Court struck the action from the trial calendar and vacated the notice of trial, then awarded costs to defense counsel and sanctioned the provider's counsel sua sponte. The appeal concerned only the costs and sanctions. Applying 22 NYCRR 130-1.1 (d), the Appellate Term, Second Department, reversed the order, insofar as appealed from, and vacated both because the Civil Court had afforded no opportunity to be heard; leave to appeal was granted under CCA 1702 (c).
Trial court, Second Department
Oct 16, 2017
2017 NY Slip Op 51412(U)
Provider prevailed
The master arbitrator exceeded the scope of review by remanding a rational award for consideration of the insurer's Mallela defense. The initial arbitrator awarded benefits after finding EUO requests untimely and the fee schedule defense unsupported, and declared other issues moot. The master arbitrator vacated the payment award and remanded because the fraudulent incorporation defense had not been specifically addressed. The District Court, Suffolk County, found that an arbitrator need not disclose the basis for an award and that the initial determination had a rational basis supported by the record. Under CPLR 7511 (b) (1) (iii), the court granted the provider's petition, vacated the portion ordering vacatur and remand, and confirmed the remaining portion under CPLR 7511 (e).
