Appellate Division, Second Department
Nov 15, 2017
2017 NY Slip Op 08007
Provider prevailed
A nonphysician's guilty plea and forfeiture allegations did not establish that the providers were fraudulently incorporated. The Appellate Division, Second Department, reversed the order granting the insurers summary judgment declaring no obligation to pay the providers' claims and denied the motion. Under Mallela, 11 NYCRR 65-3.16 (a) (12), and Business Corporation Law § 1503 (a), § 1507 and § 1508, nonprofessional ownership and control can bar reimbursement. The federal information described mail and health care fraud generally and identified forfeitable funds in provider accounts, but did not explain the fraud or show ownership, business control, or participation in profits and losses. Control over bank accounts alone would not establish ownership and control. The providers' remaining contentions were not reached.
Appellate Term, Second Department
Nov 17, 2017
2017 NY Slip Op 51614(U)
Insurer prevailed
A default declaratory judgment denying no-fault coverage barred the provider's action under res judicata. The provider failed to establish that denials were untimely under Insurance Law § 5106 (a) or that timely denials were conclusory, vague or meritless. The Appellate Term, Second Department, reversed the grant of the provider's cross motion and denied it. After allowing the provider to address the declaratory order, the court took judicial notice of a superseding Supreme Court, Bronx County, order declaring the provider and assignor ineligible for benefits from the accident. Because a provider judgment would impair rights established by that order, the court awarded the insurer summary judgment under CPLR 3212 (b) and dismissed as academic the appeal from denial of the insurer's motion.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51510(U)
Insurer prevailed
The insurer established EUO nonappearance and timely mailing of its denial forms, supporting dismissal of the provider's claims. The provider appealed from the grant of the insurer's cross motion for summary judgment based on the provider's failure to attend duly scheduled EUOs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. It found that the scheduled attorneys' affirmations and certified transcripts established nonappearance at both EUOs under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The insurer also sufficiently proved timely mailing of the denials, and the provider's remaining contentions lacked merit.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51518(U)
Split result
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. Under Interboro Ins. Co. v Clennon, the insurer needed to establish two duly demanded EUOs, the provider's nonappearance, and timely denial. Its proof established nonappearance and presumptions of timely mailing of scheduling letters and the denial form. The Appellate Term, Second Department, affirmed denial of the provider's motion and summary judgment dismissing the complaint for the insurer. It vacated the sua sponte fee award to defense counsel because the Civil Court had not afforded a reasonable opportunity to be heard as required by 22 NYCRR 130-1.1 (d), modifying the order on that issue.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51489(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51490(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51492(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51493(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51494(U)
Insurer prevailed
The insurer's attorney's affirmation established the provider's failure to appear for scheduled EUOs. In this assigned no-fault benefits action, the provider's sole appellate contention challenged the sufficiency of the insurer's proof of nonappearance. The attorney affirmed being present in the office to conduct the provider's EUO on the scheduled dates. Relying on Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, found that affirmation sufficient and affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51495(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51496(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51497(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
Nov 3, 2017
2017 NY Slip Op 51498(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
Nov 3, 2017
2017 NY Slip Op 51499(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
Nov 3, 2017
2017 NY Slip Op 51500(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
Nov 3, 2017
2017 NY Slip Op 51501(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
Nov 3, 2017
2017 NY Slip Op 51502(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
Nov 3, 2017
2017 NY Slip Op 51503(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
Nov 3, 2017
2017 NY Slip Op 51504(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
Nov 3, 2017
2017 NY Slip Op 51506(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
Nov 3, 2017
2017 NY Slip Op 51507(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51508(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear for EUOs was granted. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, No. 2014-2172 K C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51511(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's claims for failure to appear for EUOs was granted. 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. 2014-2698 Q C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51512(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted. 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. 2014-2698 Q C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51513(U)
Insurer prevailed
The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense. In this action to recover assigned first-party no-fault benefits, the Civil Court denied the branch of the insurer's motion seeking to compel the provider to appear for an examination before trial. The insurer's moving papers established that it had served a deposition notice and that the examination was material and necessary to its defense. Applying CPLR 3101 (a) and Great Wall Acupuncture, P.C. v General Assur. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to compel the examination.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51515(U)
Insurer prevailed
The insurer's motion to compel the provider to appear for an examination before trial was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and directed the examination for the reasons stated in the companion appeal decided the same day, No. 2014-2842 Q C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51516(U)
Insurer prevailed
The insurer's motion to compel a provider deposition and strike the notice of trial was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, S.J. Pahng, M.D., P.C. v AutoOne Ins. Co., No. 2014-2842 Q C, and directed the examination.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51517(U)
Insurer prevailed
The insurer's belief that its answer had been mailed under standard office procedures supplied a reasonable excuse for any default. The insurer submitted a court-stamped answer, an affidavit of service, and a mail clerk's affidavit; the provider's attorney denied receipt. The court left open whether that proof established timely service, finding the insurer's belief sufficient to excuse any default. The insurer also demonstrated a potentially meritorious defense under CPLR 5015 (a) (1). Considering the absence of willfulness or demonstrated prejudice and the policy favoring resolution on the merits, the Appellate Term, Second Department, affirmed the order granting the insurer's motion to vacate the default judgment.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51519(U)
Split result
The insurer's EUO nonappearance dismissal was affirmed, but the sua sponte fee award to defense counsel was vacated. The Appellate Term, Second Department, granted leave under CCA 1702 (c), vacated the fee award, and otherwise affirmed, including denial of the provider's motion, for the reasons stated in the companion appeal decided the same day, No. 2015-2806 Q C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51520(U)
Split result
The insurer's EUO nonappearance dismissal was affirmed, but the sua sponte fee award to defense counsel was vacated. The Appellate Term, Second Department, granted leave under CCA 1702 (c), vacated the fee award, and otherwise affirmed, including denial of the provider's motion, for the reasons stated in the companion appeal decided the same day, No. 2015-2806 Q C.
Appellate Term, Second Department
Nov 3, 2017
2017 NY Slip Op 51521(U)
Split result
The insurer's EUO nonappearance dismissal was affirmed, but the sua sponte fee award to defense counsel was vacated. The Appellate Term, Second Department, granted leave under CCA 1702 (c), vacated the fee award, and otherwise affirmed, including denial of the provider's motion, for the reasons stated in the companion appeal decided the same day, No. 2015-2806 Q C.
Appellate Term, First Department
Nov 1, 2017
2017 NY Slip Op 51470(U)
Split result
The insurer's proof supported a founded belief in a staged accident but did not establish entitlement to summary judgment. Its investigator relied on inconsistencies among three vehicle occupants' accounts of the day's events, rather than the collision itself, and other red flags common in staged-accident cases. Although sufficient under Central Gen. Hosp. v Chubb Group of Ins. Cos. to support a founded belief, that evidence did not establish as a matter of law that the injuries arose outside an insured incident. Those factual issues required exploration at trial. The Appellate Term, First Department, modified the order to deny the insurer's summary judgment motion and reinstate the complaint, while leaving the denial of the provider's cross motion intact.
Appellate Term, First Department
Nov 1, 2017
2017 NY Slip Op 51471(U)
Split result
The insurer's motion for summary judgment dismissing the provider's no-fault benefits complaint was denied on appeal. The Appellate Term, First Department, modified the order to reinstate the complaint while leaving the denial of the provider's cross motion for summary judgment intact. It relied on the companion appeal decided the same day, No. 17-179.
Trial court, Second Department
Nov 27, 2017
2017 NY Slip Op 27380
Split result
A provider's failure to obtain a New Jersey corporate certificate does not alone bar reimbursement for treatment by licensed professionals. The District Court, Suffolk County, held that 11 NYCRR 65-3.16 (a) (12) did not apply to the certificate required by New Jersey Statutes Annotated § 14A:13-3. Under § 14A:13-11, lack of authorization did not invalidate corporate contracts or acts, and the provider obtained authorization before suit. Absent fraudulent intent, the omission was a technical violation rather than Mallela fraud. The court denied summary judgment on corporate eligibility and medical necessity, finding conflicting professional affidavits required trial, but granted the insurer's uncontested fee-schedule defense, reducing the disputed amount to $9,160.08. It also found the provider's prima facie case and timely denial established.
Trial court, Second Department
Nov 17, 2017
2017 NY Slip Op 51968(U)
Provider prevailed
The assignor's advance notice of inability to attend the first EUO meant that the later nonappearance was the first failure to appear. At a bench trial on assigned no-fault claims, the insurer proved mailing of the EUO scheduling letters. Its attorney acknowledged receiving notice before the first scheduled EUO that the assignor could not attend, and the attorney did not appear. The Civil Court, Kings County, found that the first EUO should have been rescheduled and did not count as a nonappearance. After the assignor missed the later EUO, the insurer had to provide another opportunity under 11 NYCRR 65-3.6 (b). The court awarded judgment to the provider with statutory interest and attorney fees.
