Appellate Division, Second Department
Mar 28, 2018
2018 NY Slip Op 02163
The loss-transfer award allowing recovery of both basic and optional basic economic loss payments had a rational statutory and regulatory basis. The Appellate Division, Second Department, affirmed the judgment confirming the award and dismissed the separate order appeal. The reimbursing insurer had paid $50,000; the paying insurer obtained an award for the remaining $25,000. In this compulsory arbitration under Insurance Law § 5105 (b), an award required evidentiary support and freedom from arbitrary or capricious decision-making, while a legal interpretation needed a reasonable supporting hypothesis. The award satisfied that review under Insurance Law § 5102 (a) and (b) and 11 NYCRR 65-1.1 and 65-1.2. The paying insurer's remaining contentions were rejected or not reached.
Appellate Term, Second Department
Mar 23, 2018
2018 NY Slip Op 50415(U)
Split result
Neither party established entitlement to summary judgment because each failed to make the required showing concerning the insurer's denials. The provider sought assigned no-fault benefits on one claim and alleged unpaid balances on its remaining claims. The insurer failed to establish timely mailing of its denial forms and thus failed to show that its defenses were not precluded. The provider, in turn, failed to establish either denial outside the required 30-day period or timely denials that were conclusory, vague, or without merit as a matter of law under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Mar 23, 2018
2018 NY Slip Op 50416(U)
Provider prevailed
The insurer failed to establish timely mailing of its denials and therefore did not show that its defenses escaped preclusion. The provider opposed the insurer's motion for summary judgment dismissing assigned no-fault claims. Because the insurer's moving papers did not establish timely denial mailing as a matter of law, it was not entitled to summary judgment. The Appellate Term, Second Department, reversed the order and denied the insurer's motion.
Appellate Term, Second Department
Mar 9, 2018
2018 NY Slip Op 50315(U)
Split result
An insurer bears the trial burden of establishing a meritorious verification defense and showing that the defense is not precluded. After denying the insurer's summary judgment motion based on outstanding verification, the Civil Court required the provider to prove both its prima facie case and full compliance with verification requests at trial. The Appellate Term, Second Department, held that the provider retained the burden of proving its prima facie case, but the verification defense was the insurer's burden. It modified the order, insofar as appealed from, to strike the requirement that the provider prove verification compliance. It otherwise affirmed and declined the provider's request for a favorable CPLR 3212 (g) finding concerning timely bill submission.
Appellate Term, Second Department
Mar 9, 2018
2018 NY Slip Op 50316(U)
Insurer prevailed
The insurer's additional cancellation notice did not invalidate cancellation of the policy covering the for-hire vehicle before the accident. The insurer obtained summary judgment dismissing assigned no-fault claims after establishing valid cancellation under Vehicle and Traffic Law § 370 and 15 NYCRR 34.11 (e). The statute required filing a cancellation certificate with the Commissioner of Motor Vehicles, and the insurer complied. The provider's sole appellate contention was that a separate notice to the policyholder rendered cancellation ineffective. Following American Tr. Ins. Co. v Hinds, the Appellate Term, Second Department, rejected that contention and affirmed the order granting the insurer's motion.
Trial court, First Department
Mar 15, 2018
2018 NY Slip Op 50341(U)
Insurer prevailed
The insurer's coding evidence established full payment under the fee schedule for the provider's pain fiber nerve conduction studies. The Civil Court, Bronx County, granted the insurer's summary judgment motion and dismissed the complaint with prejudice. Under Insurance Law § 5108 (a), reimbursement was limited to the applicable workers' compensation fee schedule. The insurer's coder explained that the studies were quantitative sensory tests properly coded as 0110T, with reimbursement derived from comparable code 95904. The provider's attorney proposed a different comparable code and payment per nerve but submitted no supporting evidence or expert opinion. Because the coding question required technical expertise, counsel's unsupported assertions did not raise a triable issue.
