Appellate Division, First Department
Jan 25, 2018
2018 NY Slip Op 00456
Insurer prevailed
The insurer established timely EUO requests and mailing, entitling it to a declaration of no coverage for the provider's services. The claims handler's affidavit, corroborated by the denial form, established bill receipt. The first scheduling letter was generated within 15 days of receipt under 11 NYCRR 65-3.5 (b), and the second less than 10 days after the first nonappearance under 11 NYCRR 65-3.6 (b). The mailer's affidavit established mailing to the claimant and counsel. The provider's argument that counsel's attendance and an agreement to reschedule defeated the second nonappearance was unpreserved and unavailing. The Appellate Division, First Department, reversed the order and granted the insurer summary judgment declaring no coverage.
Appellate Term, Second Department
Jan 26, 2018
2018 NY Slip Op 50118(U)
Provider prevailed
The provider was entitled to prejudgment interest until it could first move to compel responses to its second interrogatory demand. After a nonjury trial, Civil Court tolled interest from commencement through filing of the notice of trial. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, and remitted for recalculation under Insurance Law § 5106 (a). Under 11 NYCRR 65-3.9 (a) and (d), unreasonable delay suspends interest. The provider had pursued motions and discovery before serving its second demand; under CPLR 2103 (a), CPLR 3133 (a), and General Construction Law § 25-a, a motion to compel was premature before January 28, 2008. Interest therefore ran from commencement on March 30, 2006 through January 27, 2008.
Appellate Term, Second Department
Jan 26, 2018
2018 NY Slip Op 50119(U)
Insurer prevailed
The provider failed to excuse its seven-year delay in seeking a default judgment or show a meritorious claim. The insurer had defaulted in answering, and the provider later sought a default judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion to dismiss the complaint as abandoned under CPLR 3215 (c). A reference to a possible settlement and a single letter did not establish settlement discussions excusing the delay. The provider also submitted neither a verified complaint nor an affidavit from a person with knowledge of the claims; the attorney-signed complaint lacked attached claim forms and personal-knowledge support.
Appellate Term, First Department
Jan 24, 2018
2018 NY Slip Op 50080(U)
Insurer prevailed
The insurer established that its Florida policy had been validly rescinded retroactively, leaving no coverage for the assignor. Its claims manager's affidavit and supporting proof showed that a rescission notice was sent and premiums were tendered back within a reasonable time after discovery of the grounds for rescission. Following Utopia Equip., Inc. v Infinity Ins. Co., the insurer had to establish compliance with Florida law permitting retroactive rescission, rather than establish the basis for rescission. The provider raised no triable issue as to validity. The Appellate Term, First Department, reversed the order, insofar as appealed from, which had adhered on renewal to denial of summary judgment, and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Jan 19, 2018
2018 NY Slip Op 50095(U)
Insurer prevailed
An insurer need not issue a timely denial to preserve a fee-schedule defense for services rendered on or after April 1, 2013. The provider sought unpaid balances on two claims for services rendered in 2014. The insurer's certified medical coder and biller established full payment under the workers' compensation fee schedule, while the provider offered only counsel's affirmation without demonstrated personal knowledge. Under 11 NYCRR 65-3.8 (g) (1) (ii) and (2), no payment was due for charges exceeding those permitted by Insurance Law § 5108 (a) and (b). The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, First Department
Jan 18, 2018
2018 NY Slip Op 50057(U)
Split result
The insurer's summary judgment motion on its fee-schedule defense was denied because its proof did not establish excessive charges. The Appellate Term, First Department, modified the order to reinstate the complaint and affirmed denial of the provider's cross motion. The insurer's new reply arguments, even if properly considered, failed to eliminate triable issues and revealed additional disputes; the court left their proper consideration unresolved.
Appellate Term, First Department
Jan 18, 2018
2018 NY Slip Op 50053(U)
Insurer prevailed
The provider's failure to fully respond to verification requests established that its no-fault claims were premature. The insurer obtained summary judgment dismissing the complaint, and the provider's cross motion was denied. The provider asserted that the follow-up request was issued two days beyond the 10-day period under 11 NYCRR 65-3.6. Even accepting that speculative assertion, the delay did not, under the circumstances, deprive the insurer of tolling of its 30-day period to pay or deny. The Appellate Term, First Department, affirmed the order.
Appellate Term, Second Department
Jan 12, 2018
2018 NY Slip Op 50042(U)
Insurer prevailed
An insurer need not issue a timely denial to preserve a fee-schedule defense for services rendered on or after April 1, 2013. The provider sought unpaid balances on five claims for services rendered from December 2013 through April 2014. The insurer's certified medical coder and biller established full payment under the workers' compensation fee schedule; counsel's affirmation without demonstrated personal knowledge raised no triable issue. Under 11 NYCRR 65-3.8 (g) (1) (ii) and (2), no payment was due for charges exceeding those permitted by Insurance Law § 5108 (a) and (b). The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied provider summary judgment, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jan 12, 2018
2018 NY Slip Op 50038(U)
Provider prevailed
An insurer seeking to vacate a consent summary judgment order must establish grounds sufficient to set aside a stipulation. The provider obtained summary judgment under an order recording both parties' agreement that judgment could be entered and that they would not appeal. The insurer later invoked CPLR 5015 (a) (1), claiming law office failure and a meritorious defense, and sought vacatur and dismissal. The Appellate Term, Second Department, affirmed denial of that motion. Because the underlying order was entered on consent, the stipulation standard governed, rather than merely the asserted excuse for failing to submit written opposition. The insurer failed to establish grounds to set aside the agreement.
Appellate Term, Second Department
Jan 12, 2018
2018 NY Slip Op 50039(U)
Insurer prevailed
A default declaratory order that has not been vacated may bar a provider's no-fault action under res judicata. The insurer relied on an order declaring no obligation to reimburse the provider or assignor. That order misstated the accident date and was vacated and replaced by a corrected order, submitted with the insurer's reply. The Appellate Term, Second Department, held that the original order had no preclusive effect, but judicial notice could be taken of the replacement as a public record. The corrected default order was a conclusive final determination, and recovery would impair the rights it established. The court affirmed insurer summary judgment dismissing the complaint and denial of the provider's motion as academic.
Appellate Term, Second Department
Jan 12, 2018
2018 NY Slip Op 50041(U)
Insurer prevailed
The insurer's records-search affidavit established that it did not cover the vehicle on the accident date. The provider sought assigned no-fault benefits and moved for summary judgment, while the insurer cross-moved to dismiss for lack of coverage. An insurer employee described the details of the search and stated that it revealed no coverage for the vehicle on that date. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., that affidavit established prima facie that the claims did not arise from a covered incident. The provider raised no triable issue. The Appellate Term, Second Department, affirmed denial of the provider's motion and grant of the insurer's cross motion dismissing the complaint.
Trial court, Second Department
Jan 3, 2018
2018 NY Slip Op 50022(U)
Provider prevailed
The insurer failed to establish excessive DME rental charges where no Medicaid maximum or Department of Health area-office rate existed. The provider sought unpaid balances for rentals billed under codes E0218 and E0936. Although the denials were untimely, 11 NYCRR 65-3.8 (g) (1) (ii) preserved the fee schedule defense for services rendered after April 1, 2013. Under 12 NYCRR 442.2 (b), the only applicable limit was the monthly rental charge to the general public. The insurer's correspondence did not establish an area-office rate, and 12 NYCRR 442.2 (g) excluded the Medicaid manual's reimbursement policy from the applicable schedule. The Civil Court, Queens County, denied the insurer's summary judgment motion because it failed to prove billing above the fee schedule.
