Appellate Division, Fourth Department
Dec 22, 2017
2017 NY Slip Op 08961
Provider prevailed
MVAIC failed to establish that the injured claimant owned the uninsured vehicle because its submissions conflicted on ownership. The Appellate Division, Fourth Department, affirmed the denial of MVAIC's summary judgment motion seeking a declaration that the claimant was not entitled to no-fault benefits. Insurance Law § 5221 (b) (1) and § 5202 (b) (i) exclude an uninsured vehicle's owner from qualified-person status; Vehicle and Traffic Law § 128 defines ownership. MVAIC submitted testimony that the claimant co-owned and helped pay for the vehicle, but also submitted registration, title, and insurance documents naming the claimant's father as owner. That conflicting evidence required a factfinder's resolution, and MVAIC's failure to meet its initial burden prevented the burden from shifting.
Appellate Division, Third Department
Dec 14, 2017
2017 NY Slip Op 08774
Split result
An insurer's alleged consumer-oriented practice of pressuring IME physicians to justify denials stated a General Business Law § 349 claim. The Appellate Division, Third Department, modified the order to reinstate that claim at the pleading stage, finding alleged consumer-oriented deception and resulting injury. Emotional distress and punitive damages remained dismissed: no duty separate from the contract or independent tort was alleged. Bi-Economy and Panasia did not abrogate existing limits on contract damages; emotional distress foreseeability was not reached. Challenges to dismissal of the General Business Law § 350 and intentional infliction of emotional distress claims were abandoned. Other consequential damages survived, and a partial concurrence and dissent would have allowed contractual emotional distress damages.
Appellate Division, First Department
Dec 7, 2017
2017 NY Slip Op 08603
Insurer prevailed
A provider cannot recover defense attorney fees under the insured-defense rule when the insurer owes no duty to defend its assignors. After successfully defending a no-fault declaratory judgment action, the provider sought attorney fees as assignee of the claimants' reimbursement rights. The rule permitting an insured to recover fees for successfully defending an insurer's declaratory judgment action rests on the insurer's duty to defend. The assignors were passengers in the insured vehicle, and the insurer owed them no such duty. The Appellate Division, First Department, affirmed the order, insofar as appealed from, denying the provider's request for attorney fees.
Appellate Term, Second Department
Dec 29, 2017
2017 NY Slip Op 51957(U)
An insurer's trial expert may differ from the peer reviewer, but testimony must remain within the original report's denial grounds. The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted for a new trial. The trial had been limited to medical necessity; the Civil Court precluded the insurer's expert and directed a verdict for the provider. Following Promed Orthocare Supply, Inc. v Geico Ins. Co., the expert should have been permitted to give an opinion on the supplies' lack of medical necessity, limited to the basis stated in the original peer review report.
Appellate Term, Second Department
Dec 28, 2017
2017 NY Slip Op 51951(U)
Provider prevailed
The provider's chiropractor raised a triable issue of medical necessity by sufficiently rebutting the insurer's peer review report. The provider appealed from an order of District Court, Suffolk County, granting summary judgment dismissing its action for assigned no-fault benefits. The insurer's sworn peer review supplied a factual basis and medical rationale for finding the services unnecessary. In opposition, an affidavit from a chiropractor who performed the services meaningfully addressed the peer review and sufficiently rebutted its conclusions. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51891(U)
Insurer prevailed
A fee-schedule defense is not subject to preclusion for services rendered after April 1, 2013, under 11 NYCRR 65-3.8 (g). The insurer demonstrated full payment for acupuncture services billed under CPT codes 97811, 97813 and 97814 using the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider failed to rebut that showing. Because the services were rendered after the regulation's effective date, the defense was not precluded. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing those claims.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51894(U)
Insurer prevailed
The provider failed to show that it exhausted remedies against the known vehicle owner before seeking payment from MVAIC. In this action for assigned first-party no-fault benefits, both the provider and its assignor knew the identity of the owner of the vehicle that struck the assignor. The provider therefore had to exhaust its remedies against that owner before seeking relief from MVAIC. The Appellate Term, Second Department, reversed the order of Civil Court, Queens County, insofar as appealed from, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51848(U)
Insurer prevailed
The provider failed to establish its prima facie case at trial because it did not prove submission of a notice-of-intention affidavit to MVAIC. Its witness testified that the claims had been mailed, but timely filing of the affidavit was a condition precedent to payment under Insurance Law § 5208 (a) (1) and (3). Under Insurance Law § 5202 (b), that compliance was necessary to establish covered-person status under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51895(U)
An insurer's medical expert may testify to lack of medical necessity without having authored the peer review underlying the denial. At a trial limited under CPLR 3212 (g) to medical necessity, Civil Court excluded the insurer's expert because the peer review's author was absent to authenticate the report, then directed a verdict for the provider. The Appellate Term, Second Department, reversed the judgment and remitted for a new trial. The expert should have been permitted to testify about the supplies' medical necessity. If the testimony exceeded the peer review's scope, an appropriate objection by the provider would have sufficed.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51857(U)
Provider prevailed
The provider's mailing affidavit raised a triable issue as to whether its action was premature for failure to supply verification. The insurer moved for summary judgment dismissing the assigned no-fault claims and established timely mailing of its initial and follow-up verification requests and nonreceipt of the requested material. In opposition, the provider submitted an employee's affidavit sufficient to create a presumption that the verification had been mailed to and received by the insurer. That competing proof raised a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51860(U)
Split result
The insurer proved full fee-schedule payment for three acupuncture billing codes but failed to explain its recoding of a fourth. The provider sought unpaid assigned no-fault benefits, and the Civil Court limited the trial issues under CPLR 3212 (g) to application of the fee schedule. The insurer's unrebutted proof established full payment for CPT codes 97811, 97813 and 97814 under the workers' compensation fee schedule for acupuncture performed by chiropractors. Its proof did not establish proper payment for CPT code 97810 because it left the apparent recoding unexplained. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the claims under the first three codes, while leaving the claim under code 97810 pending.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51863(U)
Insurer prevailed
The insurer established full payment under the chiropractic acupuncture fee schedule for services billed under CPT codes 97813 and 97814. Its proof raised a presumption of timely mailing of the relevant denials and demonstrated payment in accordance with the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branches of the insurer's cross motion for summary judgment dismissing the claims under those two codes.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51870(U)
Insurer prevailed
The insurer established timely IME scheduling, the assignor's nonappearance and timely denials, warranting dismissal of the claims. An affidavit from the operations manager of the company retained to schedule IMEs sufficiently established timely mailing of the scheduling letters. The insurer also proved nonappearance, demonstrating failure to comply with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. Its moving papers established timely denials on that ground, and the provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51901(U)
Insurer prevailed
The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, upheld the insurer's motion and denial of the provider's cross motion, finding proper mailing and nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51902(U)
Insurer prevailed
The insurer's summary judgment dismissal for the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, upheld denial of the provider's motion and grant of the insurer's cross motion, finding proper mailing and nonappearance established under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, First Department
Dec 22, 2017
2017 NY Slip Op 51911(U)
The insurer's policy declarations and payment ledger raised a triable issue of exhaustion before its obligation to pay the claims arose. The Appellate Term, First Department, reversed an order and judgment denying the insurer's petition to vacate a no-fault arbitration award and confirming the award. It remanded for a framed issue hearing on whether the policy limit had been exhausted before the insurer became obligated to pay the provider's claims. Under 11 NYCRR 65-1.1 and the cited authorities, an award directing payment beyond the policy limit exceeds the arbitrator's power. Exhaustion may be asserted despite failure to deny within 30 days, but the insurer's submissions required a hearing rather than establishing exhaustion conclusively.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51900(U)
Insurer prevailed
The insurer's sworn IME report established a lack of medical necessity for the acupuncture services at issue. In the provider's action for assigned no-fault benefits, the insurer supported its cross motion with an acupuncturist's report based on an IME conducted before those services were rendered. The report supplied a factual basis and medical rationale for concluding that further treatment was unnecessary, and the insurer established timely mailing of its denials. The provider did not rebut that showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the claims for those services.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51893(U)
Insurer prevailed
MVAIC established that the provider's action was commenced after the three-year statute of limitations expired. The provider sought assigned first-party no-fault benefits and obtained summary judgment in Civil Court, Kings County, which denied MVAIC's cross motion to dismiss the complaint as untimely. MVAIC's cross motion papers established its limitations defense, and the provider failed to raise a factual issue concerning timeliness. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion, and granted MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51876(U)
Split result
The insurer failed to prove timely denial after EUO nonappearances, and the provider failed to establish its prima facie case. The insurer did not show timely denial after the provider missed both an initial and a follow-up EUO, so it did not establish that preclusion was inapplicable to its defense. The provider's proof established neither that the claims had not been timely denied nor that timely denials were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment cross motion and otherwise affirmed, leaving the provider's summary judgment motion denied.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51872(U)
Provider prevailed
The defendant's summary judgment dismissal for EUO nonappearances was reversed because mailing to the correct address was not established. The Appellate Term, Second Department, reversed the order and denied the defendant's motion, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.; it did not reach the provider's remaining contentions.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51868(U)
Insurer prevailed
The defendant's summary judgment dismissal of the third, fifth and seventh causes of action was upheld on a presumption of timely denial mailing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the mailing proof sufficient under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.; mailing was the provider's sole appellate contention.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51866(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed, leaving a condition precedent to no-fault payment unsatisfied. The provider's sole appellate contention challenged that showing. Failure to comply with Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2) entitled to seek payment from MVAIC. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the provider's assigned no-fault complaint.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51859(U)
Insurer prevailed
The defendant's summary judgment dismissal based on the assignor's IME nonappearances was upheld on appeal. The provider's sole contention challenged the sufficiency of the affidavit from the doctor scheduled to perform the IMEs. The Appellate Term, Second Department, affirmed the order, finding the doctor's affidavit sufficient to establish nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., without further analysis.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51847(U)
Provider prevailed
The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its IME nonappearance defense. The provider appealed only the dismissal of assigned no-fault claims denied because the assignor had failed to attend IMEs. The insurer's supporting affidavit did not sufficiently describe a standard office practice or procedure ensuring proper mailing of the scheduling letters. That deficiency prevented the insurer from demonstrating entitlement to summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branch of the insurer's motion seeking dismissal of those claims.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51849(U)
The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal. After a nonjury trial on assigned no-fault claims, the Civil Court found that credible expert testimony established the insurer's prima facie medical-necessity defense and that the provider had not rebutted it. Nevertheless, the Civil Court awarded judgment to the provider. The Appellate Term, Second Department, held that the contradiction between the findings and the award warranted a new trial, reversed the judgment and remitted the matter. It also treated the notice of appeal from the decision as a premature notice of appeal from the judgment under CPLR 5520 (c).
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51850(U)
Insurer prevailed
The insurer's 30-day period to pay or deny the appealed claim had not begun because timely requested verification remained outstanding. After receiving the claim, the insurer timely mailed initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.8 (l). It demonstrated nonreceipt of the requested material, and the provider failed to show that verification had been supplied before suit. Under 11 NYCRR 65-3.5 (c) and 11 NYCRR 65-3.8 (a), the payment or denial period had not begun. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and granting the insurer summary judgment dismissing that claim; the provider's remaining verification contentions lacked merit.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51851(U)
Insurer prevailed
The insurer's 30-day period to pay or deny had not begun because timely requested verification remained outstanding when the provider sued. The insurer established timely mailing of initial and follow-up written verification requests under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.8 (l), and demonstrated that it had not received the requested verification. The provider failed to show that it had supplied the material before commencing its assigned no-fault action. Under 11 NYCRR 65-3.5 (c) and 11 NYCRR 65-3.8 (a), the payment or denial period therefore had not begun. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint, rejecting the provider's remaining verification contentions.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51852(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal, MT Servs. P.T., P.C. v Country-Wide Ins. Co., decided the same day, No. 2015-155 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51853(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal, MT Servs. P.T., P.C. v Country-Wide Ins. Co., decided the same day, No. 2015-155 Q C, and rejected the provider's remaining contention as lacking merit.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51854(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal, MT Servs. P.T., P.C. v Country-Wide Ins. Co., decided the same day, No. 2015-155 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51855(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the two no-fault claims at issue on appeal was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, which also denied the provider summary judgment on those claims, for the reasons stated in the companion appeal, MT Servs. P.T., P.C. v Country-Wide Ins. Co., decided the same day, No. 2015-155 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51856(U)
Insurer prevailed
The provider's summary judgment motion was denied and the insurer's cross motion to dismiss the assigned no-fault claims was granted. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal, MT Servs. P.T., P.C. v Country-Wide Ins. Co., decided the same day, No. 2015-155 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51858(U)
Insurer prevailed
The insurer established the provider's EUO nonappearance and proper mailing of the scheduling letters and denial forms. In an action for assigned first-party no-fault benefits, the provider challenged summary judgment dismissing the complaint. The insurer's attorney affirmed that the attorney was present in the office to conduct the EUOs on the scheduled dates, sufficiently establishing the provider's failure to appear. The insurer's mailing proof also gave rise to a presumption that the EUO scheduling letters and denial forms had been properly mailed. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51861(U)
Split result
The insurer's fee-schedule summary judgment cross motion was granted on appeal for CPT codes 97811, 97813 and 97814, but denied for 97810. The Appellate Term, Second Department, modified the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2015-398 K C; Civil Court had limited trial under CPLR 3212 (g) to fee-schedule application.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51862(U)
Split result
The insurer's fee-schedule summary judgment cross motion was granted on appeal for CPT codes 97811, 97813 and 97814, but denied for 97810. The Appellate Term, Second Department, modified the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2015-398 K C; Civil Court had limited trial under CPLR 3212 (g) to fee-schedule application.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51864(U)
Split result
The insurer's fee-schedule summary judgment cross motion was granted on appeal for CPT codes 97811, 97813 and 97814, but denied for 97810. The Appellate Term, Second Department, modified the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2015-398 K C; Civil Court had limited trial under CPLR 3212 (g) to fee-schedule application.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51865(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the provider's failure to appear for two scheduled EUOs was affirmed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding nonappearance sufficiently established under T & J Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. The court rejected the provider's remaining contentions without identifying them or giving further reasoning.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51867(U)
Provider prevailed
The insurer's EUO requests were nullities because the initial request was sent more than 30 days after receipt of the claims. Civil Court dismissed the provider's assigned no-fault action pursuant to an order granting the insurer summary judgment for the provider's failure to appear at scheduled EUOs. Following Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins. and O & M Med., P.C. v Travelers Indem. Co., the Appellate Term, Second Department, concluded that the late requests could not support summary judgment on those claims. It reversed the judgment, vacated the underlying order and denied the insurer's motion.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51869(U)
Insurer prevailed
The insurer proved the assignor's IME nonappearance through the examining doctor's affirmation and established timely mailing of denials. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims. The affirmation came from the doctor scheduled to perform the IMEs and sufficiently established nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The court also rejected the provider's argument concerning tolling of the time to pay or deny the claim, citing Alev Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., and rejected the remaining contention.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51871(U)
Split result
The insurer failed to show that it requested verification of the documentation needed to price services billed under CPT code 97039. That code has a "By Report" designation rather than a relative value under the workers' compensation fee schedule, requiring additional documentation to determine reimbursement. The insurer denied the claim for omission of that documentation but did not demonstrate that it requested it. The provider also failed to establish that the claim was not timely denied or that a timely denial was legally insufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's summary judgment motion on those services, while affirming denial of the provider's cross motion on them.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51873(U)
Insurer prevailed
The provider's arguments opposing the insurer's summary judgment motion were unpreserved because they were first raised on appeal. In this action for assigned no-fault benefits, Civil Court granted the insurer's motion dismissing the complaint and denied the provider's cross motion for summary judgment. The Appellate Term, Second Department, declined to consider the newly raised arguments. Because the provider demonstrated no basis to disturb either ruling, the court affirmed the order, leaving the insurer's dismissal and denial of the provider's cross motion in place.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51875(U)
Provider prevailed
The insurer failed to submit personal-knowledge proof of the assignor's nonappearance at scheduled EUOs. Civil Court had granted the insurer summary judgment dismissing the provider's action for assigned no-fault benefits on the EUO nonappearance ground. The Appellate Term, Second Department, reversed the order and denied the insurer's motion. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court sustained the provider's argument that the insurer had supplied no proof from someone with personal knowledge of the nonappearance.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51877(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the provider's EUO nonappearance was affirmed. The Appellate Term, Second Department, upheld denial of the provider's cross motion and found the insurer's proof sufficient to establish presumptively timely mailing of the EUO letters and denial under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51879(U)
Insurer prevailed
The insurer's summary judgment dismissal based on the assignor's failure to appear for scheduled EUOs was affirmed. The Appellate Term, Second Department, found the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Active Chiropractic, P.C. v Praetorian Ins. Co. The court rejected the provider's remaining contention without identifying it or supplying further reasoning.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51881(U)
Insurer prevailed
The insurer established that the disputed acupuncture charges exceeded the applicable workers' compensation fee schedule. In the provider's action for assigned no-fault benefits, the insurer appealed denial of summary judgment on a portion of the complaint. Its motion papers established proper mailing of the relevant denials and made a prima facie showing that the charges exceeded the allowable amount. The provider submitted no admissible evidence sufficient to raise a triable issue concerning that defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the fee-schedule claims at issue on appeal.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51884(U)
Split result
The insurer failed to establish timely mailing of its fee-schedule denial, and the provider failed to establish its summary judgment case. The insurer's affidavits did not sufficiently describe a standard office practice ensuring timely mailing of the denial. It therefore failed to demonstrate that its defense of charges exceeding the workers' compensation fee schedule was not precluded. The provider's affidavit established neither that the claim was not timely denied nor that a timely denial was conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and affirmed denial of the provider's motion.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51885(U)
Split result
The insurer's cross motion for summary judgment dismissing the assigned no-fault claims was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2015-1180 Q C, while leaving denial of the provider's summary judgment motion in place.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51887(U)
Split result
The insurer established full fee-schedule payment of four acupuncture claims, but failed to obtain dismissal of two remaining claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing the unpaid portions of the four claims paid under the workers' compensation fee schedule for acupuncture performed by chiropractors. The provider did not rebut the payment showing or challenge Civil Court's finding that the insurer was otherwise entitled to judgment on those claims. The insurer's argument concerning the amounts on the two remaining claims lacked merit. The court also rejected its challenge to the CPLR 3212 (g) findings in the provider's favor for failure to articulate a sufficient basis.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51888(U)
Insurer prevailed
The insurer's proof raised a presumption of proper mailing of the denials supporting its late-accident-notice defense. In this assigned no-fault action, 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 for lack of timely notice of the accident. The court rejected the provider's mailing challenge under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. It declined to consider the provider's remaining argument concerning the insurer's cross motion because that argument was raised for the first time on appeal.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51889(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the claims for lack of timely accident notice was upheld. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion for the reasons stated in the companion appeal decided the same day, No. 2015-1528 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51890(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance through a person with personal knowledge. The insurer sought summary judgment dismissing the assigned no-fault claims on two grounds: failure to attend scheduled EUOs and failure to supply requested verification. Civil Court granted dismissal on the EUO ground without addressing verification. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order and denied the EUO branch because the insurer had not submitted the required personal-knowledge proof. The court remitted the matter to Civil Court to decide the unresolved verification branch.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51892(U)
Split result
EUO requests sent more than 30 days after receipt of bills are nullities as to those bills. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment dismissing claims on bills received between January 26 and March 8, 2012, because its EUO requests were sent more than 30 days later. Dismissal based on EUO nonappearance remained in place for three other bills. As to those bills, the court rejected the provider's argument that 11 NYCRR 65-3.6 (b) required a delay letter to its attorney with the follow-up EUO letter. That requirement arises only when verification is sought from someone other than the provider; the court described the EUO as sought from the provider.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51896(U)
The provider's judgment for medical-supply no-fault benefits after a nonjury trial was reversed, and a new trial was ordered. The Appellate Term, Second Department, remitted the action to Civil Court, Queens County, for the reasons stated in the companion appeal, Staten Is. Advanced Surgical Supply v GEICO Ins. Co., decided the same day, No. 2015-1734 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51897(U)
The provider's judgment for medical-supply no-fault benefits after a nonjury trial was reversed, and a new trial was ordered. The Appellate Term, Second Department, remitted the action to Civil Court, Queens County, for the reasons stated in the companion appeal, Staten Is. Advanced Surgical Supply v GEICO Ins. Co., decided the same day, No. 2015-1734 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51898(U)
The provider's judgment for medical-supply no-fault benefits after a nonjury trial was reversed, and a new trial was ordered. The Appellate Term, Second Department, remitted the action to Civil Court, Queens County, for the reasons stated in the companion appeal decided the same day, No. 2015-1734 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51899(U)
The provider's judgment for assigned no-fault benefits after a nonjury trial was reversed, and a new trial was ordered. The Appellate Term, Second Department, remitted the medical-supply claim to Civil Court, Queens County, for the reasons stated in the companion appeal decided the same day, No. 2015-1734 Q C.
Appellate Term, Second Department
Dec 22, 2017
2017 NY Slip Op 51903(U)
Split result
The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment. In this action for assigned no-fault benefits, the Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion for summary judgment on the disputed portion of the complaint, while affirming denial of the provider's motion. The insurer's affidavits did not sufficiently describe an office mailing practice, leaving it unable to show that its fee-schedule defense was not precluded. The provider's affidavit established neither that the claims were not timely denied nor that any timely denials were legally insufficient.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51808(U)
Provider prevailed
The insurer failed to establish its fee schedule defense because it did not demonstrate use of the correct conversion factor. The provider appealed the dismissal of its assigned no-fault claims for services billed under CPT codes 97010, 97110 and 97124. Following Rogy Med., P.C. v Mercury Cas. Co., the Appellate Term, Second Department, concluded that the insurer had not established as a matter of law that the charges exceeded the workers' compensation fee schedule. It reversed the order, insofar as appealed from, and denied the branches of the insurer's summary judgment motion addressing those services.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51800(U)
Split result
An EUO nonappearance denial need not state the dates of the missed EUOs. Two providers sought assigned no-fault benefits, and the insurer cross-moved for dismissal based on their failure to appear for EUOs. For one provider, the insurer established timely scheduling letters and denials and nonappearance; that provider raised no triable issue. For the other, the first EUO letter was sent more than 30 days after receipt of the claims, rendering the scheduling letters nullities as to those claims. The Appellate Term, Second Department, modified the order to deny summary judgment to the first provider and dismiss its claims, while affirming summary judgment for the provider whose scheduling letters were late.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51828(U)
Insurer prevailed
The insurer's follow-up verification requests were proper, supporting dismissal of the provider's no-fault action as premature. The provider appealed an order granting the insurer summary judgment for failure to supply requested verification and denying the provider's cross motion. Its sole appellate argument challenged the follow-up requests, which complied with 11 NYCRR 65-3.6 (b). Following Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., any confusion about the requested material should have prompted further communication rather than inaction. The Appellate Term, Second Department, affirmed the order in favor of the insurer.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51832(U)
Split result
The insurer failed to prove tolling for four facially late denials but prevailed on fee-schedule reductions for four other claims. For the first through fourth causes of action, the denial forms were untimely on their face, and the insurer failed to establish timely mailing of verification requests that would toll its time to pay or deny. For the fifth through eighth causes of action, the provider challenged use of the workers' compensation acupuncture fee schedule for chiropractors. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., that schedule could determine reimbursement for a licensed acupuncturist. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on the first four causes of action and affirmed dismissal of the remaining four.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51831(U)
Insurer prevailed
A timely notice-of-intention affidavit is a condition precedent to seeking no-fault payment from MVAIC. Under Insurance Law § 5208 (a) (1) and (3) and § 5221 (b) (2), compliance with the filing requirement must be established to demonstrate covered-person status. MVAIC established that it had not received such an affidavit in the provider's action for assigned benefits. The Appellate Term, Second Department, reversed the order, denied the provider's motion for summary judgment, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51839(U)
Insurer prevailed
The providers' own purported verification responses showed that requested material remained outstanding and their no-fault action was premature. In support of their summary judgment motion and opposition to the insurer's cross motion, the providers submitted counsel's affirmations with purported verification responses. Those responses expressly stated that the providers were not responding to some of the insurer's requests. The record therefore demonstrated that the insurer had not received all requested verification, supporting dismissal for prematurity under Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51841(U)
Insurer prevailed
The defendant's summary judgment dismissal based on the assignor's IME nonappearances was upheld on appeal. The Appellate Term, Second Department, affirmed, stating that the proof sufficiently demonstrated failure to appear for scheduled IMEs under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.; the provider's only contention challenged that proof.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51833(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed, and the provider did not show leave for late filing. The assignor therefore lacked covered-person status under Insurance Law § 5221 (b) (2) because the notice requirement of Insurance Law § 5208 (a) was unsatisfied. The provider's opposition established neither leave under Insurance Law § 5208 (c) nor another triable issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's summary judgment motion dismissing the assigned no-fault complaint.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51829(U)
Insurer prevailed
The insurer's summary judgment dismissal on renewal, based on its assertion that it had not issued the policy, was upheld. Renewal invoked a change in law under CPLR 2221 (e) (2). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co. and Great Health Care Chiropractic, P.C. v Omni Indem. Co.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51826(U)
Provider prevailed
The insurer's summary judgment dismissal for IME nonappearances was reversed because mailing to the correct address was not established. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion, citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.; it did not reach the provider's remaining contentions.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51823(U)
Provider prevailed
The insurer failed to establish proper mailing of IME scheduling letters and therefore did not prove nonappearance at duly scheduled IMEs. Its affidavit did not sufficiently describe a standard office practice or procedure ensuring that the scheduling letters were properly addressed and mailed. That deficiency prevented the insurer from demonstrating the assignor's failure to attend duly scheduled IMEs and obtaining summary judgment dismissing the provider's assigned no-fault complaint. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51816(U)
Insurer prevailed
The provider's action was premature because the insurer had not received the requested verification. The provider sought assigned first-party no-fault benefits and appealed from summary judgment dismissing its complaint. The record demonstrated nonreceipt of the requested verification, and the provider acknowledged on appeal that it had responded only partially to the requests. Applying Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the order in the insurer's favor.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51813(U)
Insurer prevailed
The defendant's summary judgment dismissal based on the assignor's EUO nonappearances was upheld on appeal. The Appellate Term, Second Department, affirmed, stating that the proof sufficiently established proper mailing of the EUO scheduling letters under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The provider's remaining contention lacked merit.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51805(U)
Insurer prevailed
The defendant's summary judgment dismissal for IME nonappearances was upheld on proof of timely denial mailing and nonappearance. The Appellate Term, Second Department, affirmed, relying on an affidavit sufficient to establish timely mailing of the denial form and the scheduled IME doctor's affirmation sufficient to establish the assignor's nonappearances, rejecting the provider's challenges to both.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51793(U)
Insurer prevailed
The defendant's summary judgment motion asserting nonreceipt of the claim was upheld, and the provider's cross motion remained denied. The Appellate Term, Second Department, affirmed because the provider failed to raise a triable issue as to mailing of the claim, citing Zuckerman v City of New York. The provider's remaining contention was first raised on appeal and also lacked merit.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51790(U)
Provider prevailed
The insurer's summary judgment cross motion failed because medical necessity was triable and its fee schedule defense was unproved. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying dismissal of the assigned no-fault complaint. It agreed with the Civil Court on medical necessity, citing Zuckerman v City of New York, and found the fee schedule defense unestablished under Rogy Med., P.C. v Mercury Cas. Co.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51791(U)
Provider prevailed
The insurer failed to prove timely mailing of its denial because its affidavits did not sufficiently describe an office mailing procedure. The provider appealed dismissal of its assigned no-fault complaint based on failure to appear for duly scheduled EUOs. The insurer's affidavits did not sufficiently set forth a standard office practice or procedure that would ensure timely mailing of the denial form. It therefore failed to demonstrate entitlement to summary judgment on the EUO defense. The Appellate Term, Second Department, reversed the order and denied the insurer's summary judgment motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51792(U)
Insurer prevailed
The insurer's summary judgment motion was granted based on full fee schedule payment and proper mailing of its denial. The Appellate Term, Second Department, affirmed dismissal of the provider's assigned no-fault complaint because the insurer's proof established proper mailing and proper use of the workers' compensation fee schedule to determine reimbursement.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51794(U)
Insurer prevailed
The insurer's attorneys' affirmations established the provider's EUO nonappearance, and its proof established proper mailing of denials. The attorneys were present in their offices to conduct the provider's EUOs on the scheduled dates. Their affirmations were sufficient to establish that the provider failed to appear. The insurer's supporting proof also gave rise to a presumption that the denial forms at issue had been properly mailed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's summary judgment cross motion dismissing the first through sixth, eighth, and tenth causes of action in the assigned no-fault action.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51795(U)
Insurer prevailed
The insurer's summary judgment cross motion dismissing the complaint was granted based on the provider's EUO nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, No. 2015-289 Q C.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51796(U)
Insurer prevailed
The insurer's summary judgment cross motion dismissing the complaint was granted based on the provider's EUO nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, No. 2015-289 Q C.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51797(U)
Insurer prevailed
The insurer's summary judgment cross motion on the appealed claims was granted based on the provider's EUO nonappearance. The Appellate Term, Second Department, affirmed dismissal of the second through fifth and seventh through ninth causes of action in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, No. 2015-289 Q C.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51798(U)
Insurer prevailed
The insurer's summary judgment cross motion dismissing the first through eighth causes for the provider's EUO nonappearance was granted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, No. 2015-289 Q C.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51799(U)
An expert medical witness's specialty affects the weight of the testimony, not the witness's competency to testify as an expert. At a nonjury trial limited to medical necessity, the Civil Court precluded the insurer's expert because the expert specialized in physical medicine and rehabilitation, while the peer review author was an orthopedic surgeon reviewing from an orthopedic surgery standpoint. The Civil Court then directed a verdict for the provider. Following Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, the Appellate Term, Second Department, concluded that the insurer's witness should have been permitted to testify, reversed the judgment, and remitted the matter for a new trial.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51801(U)
Split result
The insurer's EUO defense failed on four claims because the first scheduling letter was sent more than 30 days after receipt. The insurer also failed to demonstrate timely denials of those claims, while the provider established its prima facie case. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer summary judgment and grant the provider summary judgment on those four claims. Dismissal of the fifth appealed claim remained affirmed because the insurer's proof established timely mailing of the EUO scheduling letters and denial, as well as the provider's failure to appear for the scheduled EUOs.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51802(U)
Provider prevailed
The provider's affidavit raised a triable issue whether requested verification had been received and the action was premature. The insurer moved for summary judgment dismissing the assigned no-fault action on the ground that the provider failed to supply requested verification. Although the insurer made a prima facie showing of nonreceipt, the provider's opposing affidavit gave rise to a presumption that the verification had been mailed to and received by the insurer. That conflicting proof presented a triable issue concerning prematurity. The Appellate Term, Second Department, affirmed the order denying the insurer's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51803(U)
Insurer prevailed
The insurer established full fee schedule payment for the appealed acupuncture services and untimely submission of two other claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing those claims. The insurer proved full payment for services billed under CPT codes 97813 and 97814 using the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. It also established untimely submission of two claims under 11 NYCRR 65-1.1. The provider did not rebut either showing or challenge the Civil Court's finding that the insurer was otherwise entitled to judgment on these claims.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51804(U)
Insurer prevailed
The Workers' Compensation Board must resolve whether the assignor acted as an employee at the time of the accident. The insurer submitted sufficient evidence to raise an issue whether the assignor was injured in the course of employment and workers' compensation benefits might be available. Because the Board has primary jurisdiction over the applicability of the Workers' Compensation Law, the courts could not resolve that issue pending its determination. The record indicated that an application to the Board had been made. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granting the provider's cross motion, and remitted the matter to the Civil Court to be held in abeyance pending the Board's determination.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51806(U)
Provider prevailed
The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion. For the first three causes of action, the insurer failed to establish as a matter of law that the charges exceeded the workers' compensation fee schedule, following Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home. For the fourth through sixth causes, it failed to prove timely mailing of initial and follow-up IME letters and therefore did not establish that the assignor failed to appear at duly scheduled IMEs.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51807(U)
Split result
The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the third through tenth causes of action, while affirming denial of the provider's motion on those claims. For the third cause, the insurer did not establish charges exceeding the workers' compensation fee schedule. For the fourth through tenth causes, failure to prove timely mailing of initial and follow-up IME letters defeated proof of duly scheduled IMEs and nonappearance. The provider also failed to establish that the claims were not timely denied or that timely denials were conclusory, vague or without merit as a matter of law.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51809(U)
Insurer prevailed
The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider's motion remained denied; dismissal of remaining claims was denied, but timely denials were established under CPLR 3212 (g).
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51811(U)
Provider prevailed
The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact. In the provider's action for assigned first-party no-fault benefits, the Appellate Term, Second Department, affirmed the order denying dismissal of the complaint. On review of the record, the appellate court agreed with the Civil Court's determination, citing Zuckerman v City of New York.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51812(U)
Provider prevailed
The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact. In the provider's action for assigned first-party no-fault benefits, the Appellate Term, Second Department, affirmed the order denying dismissal of the complaint. On review of the record, the appellate court agreed with the Civil Court's determination, citing Zuckerman v City of New York.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51815(U)
Insurer prevailed
The provider failed to prove medical necessity after the insurer's expert testimony shifted the burden at trial. In the nonjury trial on assigned no-fault claims, the Civil Court credited the insurer's expert and found that the insurer had demonstrated lack of medical necessity. Under Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., the provider then had to prove by a preponderance of the evidence that the services were medically necessary. It submitted no evidence meeting that burden. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and rejected the provider's challenge to limits on cross-examination of the insurer's expert under Feldsberg v Nitschke.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51817(U)
Insurer prevailed
The insurer established that the no-fault action was premature because timely requested verification remained outstanding. The Civil Court had denied the insurer summary judgment, reasoning that untimely denial precluded its verification defense, and granted the provider's cross motion. The insurer proved timely mailing of initial and follow-up verification requests and nonreceipt of the requested material, establishing prima facie prematurity under Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. The provider failed to raise a triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion dismissing the complaint and denied the provider's cross motion. It treated the appeal from the order as a premature appeal from the judgment under CPLR 5520 (c).
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51818(U)
Insurer prevailed
The insurer's summary judgment motion to dismiss for outstanding verification was granted on appeal, and the provider's judgment was reversed. The Appellate Term, Second Department, vacated the underlying order and denied the provider's cross motion for the reasons stated in companion appeal No. 2015-1018 K C, decided the same day. Under CPLR 5520 (c), it treated the notice of appeal from the order as a premature appeal from the judgment.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51819(U)
Insurer prevailed
The insurer established proper mailing of the denial forms challenged in its fee-schedule payment defense. The provider appealed summary judgment dismissing its assigned no-fault claims on the ground that the insurer had fully paid for the services under the workers' compensation fee schedule. Contrary to the provider's contention, the insurer's proof sufficiently established proper mailing under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and rejected the provider's remaining contention as lacking merit.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51820(U)
Insurer prevailed
The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless. In its action for assigned first-party no-fault benefits, the provider appealed the denial of its summary judgment motion. Its proof did not demonstrate prima facie entitlement to judgment under either alternative addressed in Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. and Westchester Med. Ctr. v Nationwide Mut. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining denial of the provider's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51821(U)
Split result
The insurer failed to prove timely denials preserving its fee-schedule defense, and the provider failed to establish entitlement to summary judgment. The insurer's affidavits did not sufficiently describe an office mailing practice ensuring timely mailing of denial forms. It therefore failed to establish that it was not precluded from defending on the ground that the charges exceeded the workers' compensation fee schedule. The provider's affidavit established neither untimely denials nor timely denials that were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51822(U)
Insurer prevailed
The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted. The insurer moved to dismiss assigned no-fault claims, and the provider cross-moved for summary judgment. The Civil Court denied both motions, leaving for trial whether the IME scheduling letters had been properly generated and whether the assignor failed to appear. The record contained timely denials based on IME nonappearance, and the provider established neither attendance nor that the denials lacked merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's cross motion and rejected its remaining contentions.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51824(U)
Insurer prevailed
The provider failed to establish that its claims were denied late or that timely denials were conclusory, vague or legally meritless. In its action for assigned first-party no-fault benefits, the provider appealed the denial of its summary judgment motion. Its submitted proof established neither alternative necessary to demonstrate prima facie entitlement to judgment, under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. and Westchester Med. Ctr. v Nationwide Mut. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining denial of the provider's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51825(U)
Insurer prevailed
The provider's summary judgment cross motion was denied in an action involving the insurer's IME nonappearance defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Acupuncture Choice, P.C. v American Tr. Ins. Co., companion appeal No. 2015-1154 K C, decided the same day. Mailing of IME notices and the assignor's nonappearance remained trial issues.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51827(U)
Split result
The insurer's evidence raised a factual issue about whether the assignor's injuries arose from an insured incident but did not warrant dismissal. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's evidence was insufficient to establish lack of an insured incident as a matter of law. The same evidence nevertheless raised a triable issue defeating the provider's motion. The Appellate Term, Second Department, modified the order to deny the provider summary judgment and affirmed denial of the insurer's cross motion, leaving both sides without summary judgment.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51834(U)
Insurer prevailed
The insurer's affidavit established timely mailing of the IME scheduling letters challenged by the provider. The provider appealed the denial of summary judgment on its second cause of action for assigned no-fault benefits and the grant of the insurer's cross motion dismissing that cause of action. Its sole argument concerning the cross motion disputed timely mailing of the IME notices. The affidavit was sufficient under St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51836(U)
Insurer prevailed
The insurer's summary judgment dismissing the assigned no-fault claims was affirmed because the provider raised no triable issue of fact. The Appellate Term, Second Department, rejected the provider's challenge to the sufficiency of its opposition papers, relying on Sydney Realty, LLC v Desiderio.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51837(U)
An insurer's substitute medical expert may testify on lack of medical necessity within the grounds stated in the original peer review report. At a nonjury trial on assigned no-fault benefits, medical necessity was the sole issue. The Civil Court precluded testimony from the insurer's expert, who had not prepared the peer review report underlying the denial, and granted the provider a directed verdict. The expert should have been permitted to offer an opinion on medical necessity, with testimony limited to the basis for denial set forth in the original report. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter for a new trial.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51842(U)
Provider prevailed
The insurer failed to establish timely mailing of its denials and was denied summary judgment on its EUO nonappearance defense. The insurer had obtained dismissal of the provider's assigned no-fault action based on the assignor's failure to attend duly scheduled EUOs. On appeal, the provider challenged the insurer's mailing proof. The supporting affidavit did not sufficiently describe a standard office practice or procedure ensuring timely mailing of denial forms, so the insurer did not demonstrate entitlement to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Dec 19, 2017
2017 NY Slip Op 51843(U)
Split result
The insurer failed to prove mailing of IME notices, and the provider failed to establish its prima facie entitlement to summary judgment. The insurer sought dismissal of assigned no-fault claims based on the assignor's IME nonappearance, but its papers did not establish proper mailing of the scheduling letters and thus did not show that the IMEs were properly scheduled. The provider's papers established neither untimely denials nor timely denials that were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment and affirmed denial of the provider's motion.
Appellate Term, First Department
Dec 18, 2017
2017 NY Slip Op 51700(U)
Provider prevailed
The insurer's conclusory nonreceipt affidavit failed to establish that the provider's claim was improperly or untimely submitted. The claim specialist asserted that the insurer had no record of receiving the claim and never accepted mail at the Florida post office box used. The affidavit did not describe mail retrieval, opening, indexing, or claim file practices; establish whether the box belonged to the insurer; or identify the correct mailing address. The insurer therefore failed to meet its prima facie burden, requiring denial regardless of the provider's opposition under Alvarez v Prospect Hosp. The Appellate Term, First Department, reversed the order, denied the insurer's summary judgment motion, and reinstated the complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51778(U)
Insurer prevailed
The provider failed at trial to prove exhaustion of remedies against potential insurers despite knowing the driver's identity. Its witness testified that the assignor's NF-2 identified the driver, and MVAIC's examiner testified that the sworn notice of intention to claim did so as well. MVAIC sought a directed verdict under CPLR 4401 based on failure to establish covered-person status under Insurance Law § 5221 (b) (2). Because the provider had not demonstrated exhaustion, the Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51765(U)
Insurer prevailed
The insurer's attorney's affirmation established the provider's EUO nonappearance, and its affidavits proved timely mailing of the denial. The provider appealed summary judgment dismissing its assigned no-fault complaint for failure to appear at duly scheduled EUOs. The insurer's attorney was present in the office to conduct the EUO on the scheduled dates, and the affirmation sufficiently established the provider's nonappearance. The insurer's affidavits also established timely mailing of its denial form. The Appellate Term, Second Department, affirmed dismissal and rejected the provider's remaining contention without discussion.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51768(U)
An insurer may present substitute expert testimony on medical necessity without admitting the peer review report for its truth. At a nonjury trial limited under CPLR 3212 (g) to medical necessity, the Civil Court directed a verdict for the provider before the insurer called witnesses. A peer review report cannot prove the defense at trial, and its admission may impermissibly bolster expert testimony. The expert must stay within the denial's basis; the provider must object to testimony exceeding that basis and produce the report if necessary. The insurer initially must rebut presumed medical necessity, but the provider bears the ultimate burden by a preponderance of the evidence. The Appellate Term, Second Department, reversed and remitted for a new trial on the first cause of action.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51767(U)
Insurer prevailed
The insurer's summary judgment motion asserting that it had not issued the policy in question was upheld on appeal. The Appellate Term, Second Department, affirmed dismissal of the provider's assigned no-fault complaint for the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co. and Great Health Care Chiropractic, P.C. v Omni Indem. Co., without providing independent reasoning.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51755(U)
Insurer prevailed
MVAIC established nonreceipt of a notice-of-intention affidavit, and the record did not establish the assignor's qualified-person status. The record indicated that the assignor was the named insured, defeating the showing of qualification under Insurance Law § 5202 (b) and § 5208 (a) (1). Timely filing of the affidavit under Insurance Law § 5208 (a) (1) and (3) is a condition precedent to payment and must be established for covered-person status under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, reversed the denial of MVAIC's summary judgment motion and granted dismissal of the provider's assigned no-fault complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51777(U)
Insurer prevailed
MVAIC established that no timely notice of intention to make a claim had been filed, defeating the assignor's covered-person status. The missing timely notice under Insurance Law § 5208 (a) left a condition precedent to no-fault payment unsatisfied under Insurance Law § 5221 (b) (2). The provider failed to show leave to file a late notice under Insurance Law § 5208 (c) or otherwise raise a triable issue. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51775(U)
Insurer prevailed
The provider failed to demonstrate exhaustion of remedies against the known vehicle's owner before seeking benefits from MVAIC. Both the provider and its assignor knew the identity of the vehicle that struck the assignor. Under Hauswirth v American Home Assur. Co., the provider, as assignee, was required to exhaust remedies against that vehicle's owner before seeking MVAIC relief. The Appellate Term, Second Department, reversed the order denying MVAIC's summary judgment motion and granted dismissal of the assigned no-fault complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51773(U)
Insurer prevailed
The insurer's summary judgment dismissal asserting that it had not issued the policy was upheld after reargument and renewal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co. and Great Health Care Chiropractic, P.C. v Omni Indem. Co., without independent analysis.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51771(U)
Insurer prevailed
The insurer's summary judgment dismissal on renewal, based on its assertion that it had not issued the policy, was upheld. Renewal invoked a change in law under CPLR 2221 (e) (2). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co. and Great Health Care Chiropractic, P.C. v Omni Indem. Co.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51763(U)
Insurer prevailed
MVAIC established that both the notice of claim and the hit-and-run police report were untimely. Without timely notice under Insurance Law § 5208 (a), the assignor was not a covered person under Insurance Law § 5221 (b) (2); the provider showed neither leave for late filing under Insurance Law § 5208 (c) nor a triable issue. The certified police report was filed more than two weeks after the accident, exceeding the 24-hour requirement in Insurance Law § 5208 (a) (2) (A), without the reasonable-possibility showing required by subdivision (B). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51753(U)
Insurer prevailed
The insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs. In this action to recover assigned first-party no-fault benefits, the provider challenged summary judgment dismissing its complaint. The attorney affirmed having been present in the office to conduct the EUOs on the scheduled dates. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court found that proof sufficient to establish nonappearance. The provider's remaining contentions lacked merit or were improperly raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order in favor of the insurer.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51754(U)
Split result
The assignor's conflicting addresses prevented a finding under CPLR 3212 (g) that IME scheduling letters were properly mailed. The address on the claim and assignment forms differed from the address to which the insurer allegedly sent the letters, so proper mailing was not incontrovertibly established for the action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to strike the mailing finding and the finding limiting trial to IME nonappearance. It affirmed denial of the provider's summary judgment motion on the third through sixth causes because the provider failed to show untimely denials or timely denials that were conclusory, vague or without merit as a matter of law. The insurer's cross motion on those claims remained denied.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51756(U)
Insurer prevailed
The insurer established that its denial was issued within 30 days after receipt of the bills, and the provider did not rebut that showing. The provider appealed summary judgment dismissing its assigned no-fault complaint on two grounds, including failure to appear for duly scheduled EUOs. Because the provider raised no other appellate issue concerning the insurer's proof of the EUO defense, the Appellate Term, Second Department, affirmed the order granting dismissal. It did not reach the provider's remaining arguments.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51759(U)
Split result
The insurer failed to establish full fee schedule compensation, but the provider failed to establish entitlement beyond an admitted shortfall. The insurer had paid part of the claim and conceded an additional sum was owed. The Appellate Term, Second Department, treated the appeal as one from the judgment under CPLR 5512 (a), reversed the judgment, vacated dismissal of the claim exceeding that concession, and denied the insurer's cross motion insofar as reviewed. The provider failed to show an untimely denial or a timely denial that was conclusory, vague or without merit as a matter of law. At the case's conclusion, statutory interest was recoverable on the payment already made and the shortfall, from when each became due until payment.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51764(U)
Insurer prevailed
The provider's claimed rescheduling request raised no triable issue because it was directed to a different investigator and phone number. The insurer's attorney, who was present in the office to conduct the scheduled EUOs, established the provider's nonappearance by affirmation. The provider's owner asserted that a message requesting rescheduling was left with the insurer's investigator after receipt of the scheduling letters. But the person allegedly called was not the investigator identified in the scheduling letter for resolving issues, and the number called differed from the number specified there. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51766(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the complaint was granted based on the provider's EUO nonappearance. The Appellate Term, Second Department, affirmed the order in the assigned no-fault action. It relied on the reasons stated in the companion appeal decided the same day, No. 2014-2253 Q C.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51769(U)
Insurer prevailed
The insurer was granted summary judgment on the second through seventh causes based on the assignor's EUO nonappearance. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on the reasons stated in the companion appeal decided the same day, Greenway Med. Supply Corp. v Travelers Ins. Co., No. 2014-2253 Q C.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51774(U)
Insurer prevailed
The scheduled IME doctor's affirmation established the assignor's nonappearance, warranting dismissal of the provider's claims. The Civil Court had denied the insurer's summary judgment motion but found under CPLR 3212 (g) that the denial was timely and proper and that nonappearance was the sole issue for trial. The affirmation from the doctor who was to perform the IMEs sufficiently established that the assignor failed to appear. Because the provider did not challenge the finding that the insurer was otherwise entitled to judgment, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 15, 2017
2017 NY Slip Op 51781(U)
Insurer prevailed
An insurer seeking to open its default in answering must show a reasonable excuse for the delay and a meritorious defense. In the assigned no-fault action, the insurer established a reasonable excuse for failing to serve an answer and made a prima facie showing of a viable lack-of-medical-necessity defense. Applying CPLR 5015 (a) (1), the Appellate Term, Second Department, reversed the order, denied the provider's motion for a default judgment, and granted the insurer's cross motion to open its default and compel acceptance of a late answer.
Appellate Term, Second Department
Dec 12, 2017
2017 NY Slip Op 51750(U)
Provider prevailed
The provider's mailing affidavit raised a triable issue whether the insurer received requested verification and the action was premature. The insurer moved for summary judgment dismissing the assigned no-fault benefits action, establishing timely mailing of its initial and follow-up verification requests and prima facie nonreceipt of the requested material. In opposition, the provider submitted its owner's affidavit, which created a presumption that the verification had been mailed to and received by the insurer under Residential Holding Corp. v Scottsdale Ins. Co. That evidence raised a factual issue concerning prematurity. The Appellate Term, Second Department, reversed the order granting dismissal and denied the insurer's motion.
Appellate Term, Second Department
Dec 12, 2017
2017 NY Slip Op 51751(U)
Split result
The insurer failed to establish timely EUO scheduling for the first two claims but timely denied the third claim for nonappearance. The first EUO letter was sent more than 30 days after receipt of the claims underlying the first and second causes of action, defeating summary judgment on the EUO defense as to those claims. For the third cause of action, the letter was mailed more than 15 business days after receipt, but the denial remained timely under 11 NYCRR 65-3.8 (l), which reduces the payment or denial period by the verification request's lateness. The Appellate Term, Second Department, modified the order to deny dismissal of the first two causes of action and affirmed dismissal of the third.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51720(U)
Insurer prevailed
The provider failed to supply a basis to disturb dismissal of its unpaid claims, and its interest and attorney's fees claim was dismissed. The Civil Court had also identified two claims as remaining for trial, although neither was pleaded or included in the provider's summary judgment motion. The Appellate Term, Second Department, struck that portion of the order and declined to address a mailing argument directed to an unpleaded claim. It found any mailing challenge to dismissal of the pleaded claims meritless. Because dismissal of all unpaid claims stood, the court denied the insurer's discovery request as moot and, searching the record under Merritt Hill Vineyards v Windy Hgts. Vineyard, granted summary judgment dismissing the fourth cause of action for interest and attorney's fees.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51734(U)
Insurer prevailed
The provider's claim against MVAIC was dismissed because the van's driver and owner might be ascertainable. The assignor's EUO testimony indicated that the allegedly injuring van remained until police arrived and that an acquaintance recorded its information. Under Insurance Law § 5221 (b) (2), covered-person status requires qualification under Insurance Law § 5202 (b) and compliance with applicable article 52 requirements. Applying the exhaustion requirement and citing Insurance Law § 5218, the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51712(U)
Insurer prevailed
The provider's own papers showed that its claims were submitted more than 45 days after the services were rendered. In this action for assigned no-fault benefits, the provider challenged summary judgment dismissing the complaint. The Appellate Term, Second Department, affirmed in favor of the defendant. For claims denied as untimely under 11 NYCRR 65-2.4 (c), the provider's submissions established late billing. Its challenge to the completeness of the denial forms was raised for the first time on appeal and was also without merit.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51711(U)
Insurer prevailed
The defendant's proof established a presumption that the denial forms were timely mailed in support of its EUO nonappearance defense. The provider appealed summary judgment dismissing its complaint for assigned no-fault benefits based on the assignor's failure to attend duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's mailing challenge and declined to consider its remaining contention because it was raised for the first time on appeal. The order was affirmed in the defendant's favor.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51710(U)
Insurer prevailed
An order holding a summary judgment motion in abeyance pending a Workers' Compensation Board determination is not appealable as of right. The insurer sought dismissal of the provider's assigned no-fault benefits action based on the assignor's alleged eligibility for workers' compensation benefits. The Civil Court held the motion pending a Board determination whether the assignor was acting in the course of employment at the accident and whether benefits might be available. Because the order did not decide the motion, CPLR 5701 (a) (2) afforded no appeal as of right. The Appellate Term, Second Department, declined leave to appeal and dismissed the provider's appeal, leaving the insurer's motion in abeyance.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51713(U)
Split result
The insurer failed to establish the correct fee schedule conversion factor or proper application of Ground Rule 11. That failure defeated its defense that charges for the first, second, and fourth causes of action exceeded the workers' compensation fee schedule. The provider also failed to establish prima facie entitlement to summary judgment: its affidavit did not show that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion for summary judgment dismissing those causes of action and affirmed the denial of the provider's motion on them.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51738(U)
Insurer prevailed
The insurer's summary judgment motion asserting that it had issued no policy covering the loss was granted on appeal. The Appellate Term, Second Department, reversed the order denying dismissal of the provider's assigned no-fault complaint for the reasons stated in Tam Med. Supply Corp. v Omni Indem. Co., without providing independent reasoning.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51725(U)
Insurer prevailed
MVAIC established that the provider had not timely filed the notice-of-intention affidavit required for no-fault payment. In the provider's action for assigned benefits, the untimely filing under Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to seeking payment from MVAIC therefore remained unsatisfied. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in MVAIC's favor and did not reach the provider's remaining contention.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51723(U)
Insurer prevailed
The provider failed to show that use of a pseudonym for an IME scheduling contact would change the prior summary judgment determination. After dismissal for the assignor's IME nonappearances, the provider sought renewal based on an unrelated trial transcript showing that the named rescheduling contact was fictitious. CPLR 2221 (e) (2) and (3) require new facts that would change the determination and reasonable justification for not presenting them earlier. No evidence showed that the assignor attempted to reschedule. The Appellate Term, Second Department, affirmed denial of renewal in favor of the defendant, expressly leaving the propriety of using the pseudonym undecided.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51714(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether its action was premature for failure to supply requested verification. The defendant obtained summary judgment dismissing the assigned no-fault complaint on that ground. In opposition, the provider submitted an affidavit sufficient to create a presumption that the requested verification had been mailed to and received by the defendant. The Appellate Term, Second Department, reversed the order and denied the defendant's motion, leaving the disputed verification issue for resolution.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51708(U)
Split result
The insurer proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others. The provider challenged summary judgment dismissing the first through eighth causes of action and findings reducing the ninth and tenth claims under an eight-unit fee schedule defense. The insurer adequately proved full payment of the first, fourth, and fifth claims under the workers' compensation fee schedule. It did not demonstrate proper Ground Rule reductions for the second, third, and sixth through tenth claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of the second, third, and sixth through eighth causes and vacate the CPLR 3212 (g) findings on the ninth and tenth, while affirming the three dismissals.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51709(U)
Split result
The insurer failed to prove timely mailing of verification requests and denials, and the provider failed to establish its prima facie case. The insurer sought dismissal based on the assignor's failure to appear for EUOs. Its affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the verification requests and denial forms. The provider's affidavit did not establish that the claims were not timely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's summary judgment motion.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51715(U)
Split result
The provider failed to establish its prima facie case, and the insurer failed to prove fee schedule excesses or IME nonappearance. The provider's summary judgment proof did not establish that the claim was not timely denied or that a timely denial was conclusory, vague, or legally meritless. The insurer's cross motion did not establish as a matter of law that the fees exceeded the workers' compensation fee schedule or that the assignor failed to appear for IMEs. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied that motion. Denial of the insurer's cross motion remained undisturbed.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51716(U)
Split result
The insurer failed to prove timely mailing of its fee schedule denials, and the provider failed to establish its prima facie case. The insurer's affidavit did not sufficiently describe a standard office practice or procedure ensuring timely mailing of denial forms. It therefore failed to show that its workers' compensation fee schedule defense was not precluded, defeating summary judgment dismissing the first three causes of action. The provider's affidavit likewise failed to establish that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on those causes of action and affirmed denial of the provider's motion on them.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51717(U)
Insurer prevailed
The provider's challenges to the insurer's summary judgment cross motion were unpreserved because they were first raised on appeal. In this action to recover assigned first-party no-fault benefits, the Civil Court denied the provider's motion for summary judgment and granted the insurer's cross motion dismissing the complaint. All arguments advanced by the provider against the cross motion were raised for the first time on appeal. The Appellate Term, Second Department, declined to consider them under Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen and affirmed the order in favor of the insurer.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51718(U)
Insurer prevailed
The insurer's summary judgment motion based on EUO nonappearance was granted as to the first and fourth through seventh causes of action. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the insurer's proof sufficient to create a presumption of proper mailing of verification requests and denial forms and to establish the provider's failure to appear for EUOs.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51719(U)
Insurer prevailed
The provider's motion to renew its opposition to the insurer's IME nonappearance summary judgment motion was denied. Renewal relied on testimony from an unrelated case that the rescheduling contact named in the IME letters was a pseudonym. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, Brand Med. Supply, Inc. v ELRAC, Inc., No. 2014-2323 K C.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51721(U)
Split result
The provider raised a verification receipt issue on its first claim, but its second claim was submitted late and timely denied. The insurer established prima facie that it mailed initial and follow-up verification requests and had not received the requested material. The provider's employee affidavit created a presumption of mailing and receipt, raising a triable issue whether the first cause of action was premature. The record established that the second claim was submitted more than 45 days after the supplies were furnished under 11 NYCRR 65-1.1, and the provider raised no factual issue concerning its timely denial. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the first cause of action and affirmed dismissal of the second.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51722(U)
Insurer prevailed
The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense. In this assigned no-fault benefits action, the insurer sought summary judgment or, alternatively, an order compelling the provider to appear for an examination before trial. The Civil Court denied the summary judgment motions and implicitly denied the alternative discovery request. The insurer's papers established service of a deposition notice and the examination's relevance 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 branch of the insurer's cross motion seeking to compel the examination.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51728(U)
Insurer prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearance was granted, and dismissal was affirmed on appeal. The Appellate Term, Second Department, stated that the insurer established nonappearance at properly scheduled EUOs and timely denials on that ground. It relied on Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and Arco Med. NY, P.C. v Lancer Ins. Co.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51729(U)
Split result
The provider failed to establish its prima facie case, and the insurer failed to prove timely mailing of EUO nonappearance denials. The provider's affidavit did not establish that the claim was not timely denied or that a timely denial was conclusory, vague, or without merit as a matter of law. The insurer's affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the denial forms. That deficiency defeated the insurer's cross motion based on the assignor's failure to appear for EUOs. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion and affirmed the denial of the insurer's cross motion, leaving both motions denied.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51730(U)
Provider prevailed
The insurer's summary judgment motion based on lack of medical necessity was denied because a triable factual issue remained. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, in the provider's assigned no-fault benefits action, finding on review of the record a triable issue regarding the medical necessity of the services under Zuckerman v City of New York.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51732(U)
Insurer prevailed
Omitting scheduled EUO dates from a denial does not make the denial conclusory, vague, or legally meritless. In this assigned no-fault benefits action, the insurer's proof established that the provider failed to appear for duly scheduled EUOs. Applying Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC, the court rejected the provider's challenge to the denial forms based on their omission of the examination dates. The provider's remaining contentions lacked merit or were raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 8, 2017
2017 NY Slip Op 51736(U)
Split result
The insurer failed to prove timely IME notices, and the provider failed to establish entitlement to judgment on its claims. For the first and third through sixth causes of action, the insurer's failure to establish timely mailing of initial and follow-up scheduling letters defeated its IME nonappearance defense on summary judgment. The provider's affidavit did not establish that those claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. A triable issue also remained whether the insurer received the claim underlying the second cause of action. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed the denial of the provider's motion, leaving neither side with summary judgment.
Trial court, Second Department
Dec 19, 2017
2017 NY Slip Op 27415
Split result
The insurer failed to establish good reasons for its verification demands, and the provider's objection letters reasonably justified noncompliance. The insurer sought dismissal as premature based on unanswered demands for corporate and financial information. The District Court, Suffolk County, found its explanations hearsay and conclusory under CPLR 3212 (b), and inadequate under 11 NYCRR 65-3.2 (c) and Mallela. The demands omitted the required 120-day warning, while the provider's letters supplied reasonable justification under 11 NYCRR 65-3.5 (o) and 65-3.8 (b) (3). Failure to address the Mallela objections waived defenses and violated 11 NYCRR 65-3.2 (a), (b) and (e). The court denied the insurer's dismissal motion and granted the provider's summary judgment cross motion, but granted the insurer partial summary judgment on uncontested timely and proper mailing of verification requests.
Trial court, Second Department
Dec 18, 2017
2017 NY Slip Op 27454
Insurer prevailed
A provider's claim billed under a "By Report" code is incomplete without the report establishing the service's value and calculation. The Civil Court, Kings County, denied renewal and reargument of the provider's summary judgment motion concerning code 20999. Under Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the report was part of a completed claim form and the provider's prima facie burden; its omission did not trigger timely payment, denial or verification obligations. The court acknowledged Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co., which treated missing documentation as verification under 11 NYCRR 65-3.5 (b), but adhered to its reasoning. New literature lacked justification for earlier omission, advanced a new theory and did not eliminate the report requirement.
Trial court, Second Department
Dec 13, 2017
2017 NY Slip Op 51967(U)
Split result
The insurer failed to prove that manipulation under anesthesia was medically unnecessary but established a fee schedule reduction. At a bench trial, the parties stipulated to the provider's prima facie case and timely mailing of the denial. The Civil Court, Kings County, found that conflicting chiropractic opinions reflected a difference in professional judgment under the applicable treatment guidelines. The insurer had not shown that the procedures were inconsistent with generally accepted professional practice and therefore failed to establish lack of medical necessity. Its litigation representative's credible, uncontroverted testimony established the proper billing codes, modifiers and application of the multiple procedure rule. The court awarded the provider judgment for the reduced fee schedule amount, with statutory interest and attorney fees.
