Appellate Division, Second Department
Mar 27, 2019
2019 NY Slip Op 02317
Insurer prevailed
The insurer established service, the provider's default, and a viable claim for a default judgment in its de novo no-fault action. After a master arbitrator affirmed an award exceeding $5,000, the insurer sought a declaration of nonpayment under Insurance Law § 5106 (c). Supreme Court denied the unopposed motion because the arbitration award was rational and supported by evidence. The Appellate Division, Second Department, reversed and granted leave to enter a default judgment. Under CPLR 3215 (f), proof of a viable claim sufficed. The insurer submitted service and default proof, an attorney-verified complaint, an affirmed peer review, and the arbitration awards. The matter was remitted for entry of a declaration that the insurer was not obligated to pay the claim.
Appellate Division, Second Department
Mar 27, 2019
2019 NY Slip Op 02348
Insurer prevailed
The injured claimant lacked standing to recover no-fault medical benefits after assigning the right to those benefits to medical providers. The insurer established the assignments to ten providers, and the claimant failed to raise a triable issue. The Appellate Division, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint. Outstanding disclosure did not justify denying the motion as premature under CPLR 3212 (f). The claimant failed to show that discovery might produce relevant evidence or that facts essential to oppose the motion were exclusively within the insurer's knowledge and control.
Appellate Division, First Department
Mar 21, 2019
2019 NY Slip Op 02167
Insurer prevailed
The record did not rationally support a finding that the need for the provider's medical equipment was causally related to the accident. The insurer denied the claim based on a peer review concluding that the assignor's condition was degenerative rather than post-traumatic and that surgery was not medically necessary in relation to the accident. The Appellate Division, First Department, reversed the judgment, granted the insurer's motion to vacate the arbitral award and obtain a de novo hearing, and denied the provider's motion to confirm the award.
Appellate Division, First Department
Mar 5, 2019
2019 NY Slip Op 01544
Insurer prevailed
The denial of no-fault benefits survived arbitration review because the sworn IME report supplied a rational evidentiary basis. The report found resolved conditions and no objective disability. The arbitrator considered but rejected the claimant's evidence, including a treating doctor's affidavit concerning subsequent surgery, as a factual and credibility matter. Following Matter of Petrofsky, the Appellate Division, First Department, applied the limited inquiry whether a compulsory arbitration award has sufficient evidence or another basis in reason. The master arbitrator properly upheld the determination, and the court affirmed denial of the petition to vacate. The arbitrator had made a factual finding that the condition had not worsened after the IME, rather than a mistake of law in ignoring that possibility.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50502(U)
Insurer prevailed
The insurer's motion to dismiss the provider's no-fault complaint for lack of personal jurisdiction was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal under CPLR 3211 (a) (8) for the reasons stated in Pavlova v American Ind. Ins. Co.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50500(U)
Insurer prevailed
The insurer's medical-necessity defense was sustained based on the trial court's supported assessment of the experts' credibility. A nonjury trial on the provider's assigned no-fault claim was limited by stipulation to whether knee surgery was medically necessary. The insurer's expert testified that it was unnecessary because it was not causally related to the accident; the provider's expert rebutted that testimony. Civil Court credited the insurer's witness and dismissed the complaint. The Appellate Term, Second Department, affirmed. Although its review power after a nonjury trial was as broad as the trial court's, it gave substantial deference to credibility findings based on observing the witnesses and found the record supported the determination.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50501(U)
Insurer prevailed
The provider's complaint was dismissed after it first sought to excuse noncompliance with a 90-day demand in sur-reply. After receiving the insurer's demand under CPLR 3216 (b) (3), the provider neither filed a notice of trial within 90 days under CPLR 3216 (c) nor timely moved to vacate the demand or extend the period under CPLR 2004. It therefore had to establish both a justifiable excuse and a meritorious cause of action in opposition to dismissal. Its attempt to make that showing for the first time in sur-reply should not have been considered. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's CPLR 3216 motion.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50505(U)
Provider prevailed
The provider's enforcement delay did not justify tolling postjudgment interest because it had not caused the insurer's payment delay. The insurer sought relief from interest on a judgment entered after the provider's unopposed summary judgment motion. Under CPLR 5003, interest accrued from entry until payment, and the provider was not required to demand payment. CPLR 5004 required postjudgment interest at 9% annually. Former 11 NYCRR 65.15 (h) (1), applicable during 1995 through 1998, required prejudgment interest at 2% monthly, compounded. The Appellate Term, Second Department, reversed the later judgment, vacated the portions of the order imposing simple prejudgment interest and tolling postjudgment interest, denied those branches of the insurer's motion, and remitted for recalculation and entry of judgment.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50503(U)
Insurer prevailed
The insurer's default was excused based on possible withdrawal and the provider's assurance that no default proceedings would be commenced. Under CPLR 5015 (a) (1), vacatur required a reasonable excuse and a potentially meritorious defense. The insurer reasonably believed the provider might withdraw the action and had been told that the provider would not pursue default proceedings. It also demonstrated a potentially meritorious defense based on the provider's failure to supply requested verification. The Appellate Term, Second Department, affirmed the order vacating the judgment entered upon the insurer's failure to appear or answer and compelling acceptance of its late answer.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50504(U)
Insurer prevailed
The insurer's motion to vacate its default judgment and compel acceptance of its late answer was upheld on appeal. The Appellate Term, Second Department, affirmed the order granting that relief for the reasons stated in the companion appeal decided the same day, No. 2017-858 K C.
Appellate Term, Second Department
Mar 29, 2019
2019 NY Slip Op 50904(U)
Split result
The insurer was entitled to examine the provider's owner about whether an individual PPO contract covered the provider's bills. Dismissal under CPLR 3211 was properly denied because the insurer's submissions did not establish that the corporate provider was a party to its owner's individual PPO contract. The insurer asserted that the owner requested inclusion of bills bearing the provider's name and taxpayer identification number. An examination sought material and necessary evidence under CPLR 3101 (a). The provider also failed to establish untimely denials or timely denials that were conclusory, vague or legally meritless. The Appellate Term, Second Department, modified the order to compel the examination and deny the provider summary judgment, while affirming denial of dismissal.
Appellate Term, Second Department
Mar 28, 2019
2019 NY Slip Op 50477(U)
Split result
The insurer's EUO letters were sufficient because they identified the assignor, accident date and file number. The initial request tolled payment or denial deadlines for earlier claims by the same provider for the same assignor and accident if timely requested, and for later claims received before two EUO nonappearances breached a policy condition. The insurer established proper mailing, nonappearance and timely denials, without a triable issue in opposition. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting the insurer summary judgment dismissing 17 claims and denying the provider summary judgment on those claims. Summary judgment for the provider remained on four claims for which the insurer conceded its EUO requests were untimely.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50423(U)
Insurer prevailed
⚠ Not followed by Kemper Independence Ins. Co. v Accurate Monitoring, LLC (2021 NY Slip Op 21253)
An insurer need not disclose the reasons or objective standards for its EUO demands in scheduling letters or in response to a provider's objection. The provider appealed summary judgment dismissing its assigned no-fault claims for EUO nonappearance, arguing only that it had objected and the insurer had not established that the demands were reasonable. For one assignor, the provider offered no proof that it mailed an objection. For the other, it requested the insurer's reasons and standards. The Appellate Term, Second Department, deferred to the Department of Financial Services' interpretation of the no-fault regulations, which imposed no such disclosure requirement, and affirmed summary judgment for the insurer.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50421(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment for nonappearance. Under Interboro Ins. Co. v Clennon, the insurer needed to establish two duly demanded EUOs, the provider's failure to appear, and timely denial of the claims. The insurer proved timely mailing of the initial and follow-up scheduling letters, nonappearance on both dates, and timely denials on that ground. The provider failed to raise a triable issue in opposition. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50420(U)
Insurer prevailed
The provider's no-fault action against the transit authority was barred because it began more than three years after accrual. Civil Court granted summary judgment dismissing the complaint for exhaustion of coverage and denied the provider's cross motion for summary judgment. The Appellate Term, Second Department, affirmed on the alternative limitations ground raised by the transit authority under CPLR 3211 (a) (5). Following Contact Chiropractic, P.C. v New York City Tr. Auth., the court applied the three-year limitations period in CPLR 214 (2). It did not reach the exhaustion-of-coverage ground.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50419(U)
Insurer prevailed
The Workers' Compensation Board must first resolve eligibility when evidence raises an issue whether the assignor was injured in the course of employment. The provider moved for summary judgment on assigned no-fault claims, and the insurer sought dismissal or, alternatively, to hold the action in abeyance. The insurer submitted sufficient evidence to raise a factual issue concerning the assignor's employment status at the time of the accident and the possible availability of workers' compensation benefits. Because the Board has primary jurisdiction over applicability of the Workers' Compensation Law, the court could not first determine entitlement to no-fault benefits. The Appellate Term, Second Department, affirmed the order granting the insurer's request to hold the action in abeyance.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50424(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's claims for EUO nonappearance was granted and affirmed on appeal. The provider's sole appellate argument was that it had objected to the EUO demands and the insurer had not established their reasonableness. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, No. 2017-525 K C.
Appellate Term, Second Department
Mar 22, 2019
2019 NY Slip Op 50425(U)
Split result
The insurer proved IME nonappearances and timely denials for all but one claim, as to which receipt remained disputed. In this action for assigned no-fault benefits, the insurer established proper mailing of the IME scheduling letters and the assignor's failure to appear. Its proof also established timely mailing of denial forms for the other claims. A factual issue concerning whether the insurer ever received the remaining claim prevented either party from obtaining summary judgment on that claim. The Appellate Term, Second Department, modified the order to deny the insurer's motion as to that claim, otherwise affirmed dismissal of the other claims, and left the denial of the provider's cross motion intact.
Appellate Term, Second Department
Mar 15, 2019
2019 NY Slip Op 50342(U)
Insurer prevailed
The defendant insurer's affidavits established that another carrier issued the policy covering the accident, warranting dismissal. The provider sought assigned no-fault benefits, and Civil Court denied the defendant's summary judgment motion, granted the provider's cross motion, and entered judgment for the provider. The Appellate Term, Second Department, deemed the appeal taken from the judgment under CPLR 5501 (c), reversed it, vacated the order, granted the defendant's motion, and denied the cross motion. The defendant's litigation manager and the issuing carrier's manager established lack of coverage, and the provider raised no factual issue. The provider's reliance on Matter of American Ind. Ins. Co. v Nova Acupuncture, P.C. was misplaced because that decision did not address suing the wrong insurer.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50273(U)
Insurer prevailed
The insurer's timely motion to vacate the notice of trial succeeded because the provider's certificate incorrectly stated that discovery was complete. The insurer served a deposition notice with its answer, but the provider never appeared for a deposition. The provider nevertheless filed a notice of trial and certificate of readiness, and the Civil Court denied the insurer's unopposed motion to vacate them. Under 22 NYCRR 208.17 (c), the timely motion should have been granted because the certificate erroneously represented that discovery was complete or waived. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to vacate both documents.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50275(U)
Split result
The insurer's late EUO follow-up letter defeated summary judgment on one claim, while disputed receipt defeated summary judgment on another. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer summary judgment on the second and fifth causes of action; the provider's motion remained denied. On the second, proof of mailing and nonreceipt raised a factual issue about timely submission. On the fifth, the follow-up EUO letter exceeded the 10-day limit under 11 NYCRR 65-3.6 (b), but the provider failed to establish its own entitlement to judgment. Dismissal of the fourth cause remained proper because its follow-up was timely. Dismissal of the third remained undisturbed because the provider's challenge to the fee-schedule defense was raised for the first time on appeal.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50281(U)
Insurer prevailed
The provider's action was premature because its verification submissions did not include the requested signed informed consent form. The insurer established timely mailing of initial and follow-up verification requests and nonreceipt of all requested materials. In opposition, the provider submitted an affidavit asserting that it had supplied all verification and attached copies of the materials provided. A treating provider's report referred to a separate signed consent form made part of the patient's chart, but that form was not among the attachments. The provider therefore failed to raise a triable issue concerning complete compliance. 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
Mar 8, 2019
2019 NY Slip Op 50291(U)
Insurer prevailed
The defendant insurer established that it had not issued the policy covering the accident and that the provider sued the wrong carrier. Affidavits from the defendant's litigation manager and another insurer's manager established the lack-of-coverage defense; the latter confirmed that the other insurer had issued the applicable policy. The provider failed to raise a factual issue. The Appellate Term, Second Department, reversed the portion of the order denying the defendant's summary judgment motion and granted dismissal. It dismissed the appeal from the grant of leave to add the other insurer as a defendant because the defendant insurer was not aggrieved by that ruling under CPLR 5511.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50279(U)
Insurer prevailed
MVAIC established that the provider commenced its no-fault action after the three-year statute of limitations expired. The Appellate Term, Second Department, affirmed the order granting MVAIC's motion for summary judgment dismissing the complaint and denying the provider's cross motion. Following Kings Highway Diagnostic Imaging, P.C. v MVAIC, the court found MVAIC's papers sufficient to establish untimeliness and the provider's opposition insufficient to raise a factual issue. The provider's tolling argument was raised for the first time on appeal, contradicted its position in Civil Court, and, in any event, lacked merit.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50274(U)
Insurer prevailed
MVAIC established that no timely notice to make claim had been filed, leaving a condition precedent to no-fault payment unsatisfied. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment. The failure to timely file under Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2). In opposition, the provider neither established that leave to file a late notice had been obtained under Insurance Law § 5208 (c) nor otherwise raised a triable issue of fact.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50272(U)
Insurer prevailed
The insurer's motion to vacate the notice of trial and certificate of readiness for incomplete discovery was granted on appeal. The Appellate Term, Second Department, reversed the denial of the insurer's unopposed motion for the reasons stated in the companion appeal decided the same day, No. 2016-301 K C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50276(U)
Provider prevailed
Separate accidents and multiple pleaded defenses did not establish that the provider's claims required severance. The insurer moved under CPLR 603 to sever the first cause of action from the remaining causes in an action for assigned no-fault benefits. Although the assignors were injured in separate accidents and the insurer pleaded 48 defenses, those facts did not demonstrate that resolving each assignor's claims would involve different questions of law and fact. Severance rests in judicial discretion, and appellate intervention requires a showing of prejudice to a substantial right. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding no improvident exercise of discretion in denying the insurer's motion.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50277(U)
Provider prevailed
The denial of the insurer's CPLR 603 motion to sever the first no-fault cause of action from the remaining causes was affirmed on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of NY, the companion appeal decided the same day, No. 2016-2225 K C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50278(U)
Provider prevailed
The insurer's motion under CPLR 603 to sever the first no-fault cause of action from the remaining causes of action was denied and affirmed on appeal. The Appellate Term, Second Department, relied on the reasons stated in Himalayans Acupuncture, P.C. v Global Liberty Ins. Co. of NY, the companion appeal decided the same day, No. 2016-2225 K C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50282(U)
Insurer prevailed
The insurer's summary judgment motion to dismiss the action as premature for outstanding verification was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2703 RI C, and granted the branch of the insurer's motion seeking dismissal.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50283(U)
Insurer prevailed
The insurer's summary judgment motion to dismiss the action as premature for outstanding verification was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2703 RI C, and granted the branch of the insurer's motion seeking dismissal.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50607(U)
Insurer prevailed
The provider identified no ambiguity or factual distinction defeating collateral estoppel from a prior arbitration award. The award had denied no-fault recovery because the provider was not a licensed professional medical corporation in New York. The Appellate Term, Second Department, affirmed leave to amend the insurer's answer to assert collateral estoppel and summary judgment dismissing the complaint. Under CPLR 3025 (b), lateness alone did not bar amendment; the provider demonstrated neither prejudice nor surprise and did not establish waiver. Although the insurer omitted the arbitration's underlying submissions, the provider identified no ambiguity in the award, distinction between the relevant facts, or other meritorious basis to disturb dismissal.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50608(U)
Insurer prevailed
The provider's refusal to answer deposition questions about ownership warranted striking its complaint after years of discovery noncompliance. The owner's involvement, hours, and duties at other medical corporations were material to whether the owner genuinely owned and operated the provider, an issue relevant to the insurer's Mallela defense. Counsel's directions not to answer were unauthorized under 22 NYCRR 221.2. The Appellate Term, Second Department, held that the refusal could be presumed willful and contumacious in light of the provider's prolonged failure to comply fully with discovery. Because some claims had already been struck for noncompliance and the owner had been deposed twice, it reversed the order and granted the insurer's motion to strike the complaint and dismiss the action under CPLR 3126.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50609(U)
Insurer prevailed
The insurer's motion to strike the complaint and dismiss the assigned no-fault action under CPLR 3126 was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion. It relied on the reasons stated in the companion appeal decided the same day, No. 2016-1006 Q C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50610(U)
Insurer prevailed
The insurer's motion to strike the complaint and dismiss the assigned no-fault action under CPLR 3126 was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion. It relied on the reasons stated in the companion appeal decided the same day, No. 2016-1006 Q C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50611(U)
Insurer prevailed
The insurer's motion to strike the complaint and dismiss the assigned no-fault action under CPLR 3126 was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion. It relied on the reasons stated in the companion appeal decided the same day, No. 2016-1006 Q C.
Appellate Term, Second Department
Mar 8, 2019
2019 NY Slip Op 50612(U)
Insurer prevailed
The insurer's motion to strike the complaint and dismiss the assigned no-fault action under CPLR 3126 was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion. It relied on the reasons stated in the companion appeal decided the same day, No. 2016-1006 Q C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51038(U)
Provider prevailed
The provider's affidavit describing unanswered requests to reschedule each EUO raised a factual issue defeating the insurer's motion. The insurer established timely mailing of EUO scheduling letters and the denial through office-practice affidavits, and attorneys present on the scheduled dates established nonappearance. In opposition, the provider's owner stated that calls were made to reschedule each EUO and messages left for the insurer's investigator, without a response. The insurer supplied no affidavit from a person with personal knowledge, relying instead on counsel's assertions that the account was vague and feigned. The Appellate Term, Second Department, affirmed the order denying the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51052(U)
Provider prevailed
The insurer failed to establish timely mailing of the initial and follow-up EUO and IME scheduling letters. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the assignors' nonappearances. The Civil Court denied both motions and found under CPLR 3212 (g) that the provider established its prima facie case and the insurer timely denied the claims, leaving scheduling-letter mailing as the triable issue. Without proof of timely mailing, the insurer did not establish duly scheduled EUOs or IMEs or nonappearance at them. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51057(U)
Insurer prevailed
A provider must exhaust remedies against a known vehicle owner before seeking assigned no-fault benefits from MVAIC. At a nonjury trial, the parties stipulated that exhaustion was the sole issue. The assignor knew the identity of the owner of the vehicle that struck the assignor, but the provider failed to demonstrate that it had exhausted remedies against that owner. Following Hauswirth v American Home Assur. Co. and Compas Med., P.C. v MVAIC, the Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in MVAIC's favor.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51056(U)
Insurer prevailed
MVAIC established that the provider submitted its claim forms more than 45 days after rendering the services at issue. The provider's sole appellate argument challenged that showing. Applying 11 NYCRR 65-1.1 and following Bajaj v MVAIC, the Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment. The provider demonstrated no basis to disturb the dismissal.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51039(U)
Provider prevailed
MVAIC's declaratory judgment did not bind a provider whose assignment preceded that proceeding and who was neither named nor served. The Appellate Term, Second Department, modified the order to deny MVAIC's cross motion for summary judgment, while leaving denial of the provider's motion intact. The default declaration found the assignor to be the vehicle's de facto owner and denied no-fault coverage. Because the assignment preceded commencement of the declaratory proceeding, the provider lacked privity with the assignor and had no full and fair opportunity to defend its interests. MVAIC's alternative request for dismissal based on ownership also failed because its own moving evidence presented a triable issue concerning the assignor's ownership.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51041(U)
Insurer prevailed
The insurer's transfer of claims between offices and the location generating timely EUO letters did not raise a triable issue. The Civil Court denied summary judgment while finding under CPLR 3212 (g) that the insurer proved timely and proper mailing of EUO letters and denials and the provider's nonappearance. It reserved office location and the reasonableness and justification of the requests for trial. The Appellate Term, Second Department, upheld the mailing and nonappearance findings, explaining that the insurer must establish two duly demanded EUOs, two failures to appear and a timely denial. Those requirements were met. 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
Mar 1, 2019
2019 NY Slip Op 51042(U)
Split result
An insurer may use the workers' compensation acupuncture fee schedule for chiropractors to determine payment to a licensed acupuncturist. The provider challenged summary judgment dismissing its assigned no-fault claims on the ground that the insurer had fully paid under that schedule. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, upheld use of the schedule but modified the order to deny dismissal of a $54.73 initial-visit claim billed under CPT code 99203 and an additional $0.63 for another service. The insurer's coder identified a $16.70 entitlement for that service, but the insurer paid $16.07. The order was otherwise affirmed.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51043(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51045(U)
Insurer prevailed
An EUO letter's different contact at the same law firm does not undermine an otherwise sufficient affirmation of nonappearance. The provider challenged the Civil Court's findings under CPLR 3212 (g) that the insurer proved timely and proper mailing of EUO letters and denials and the provider's nonappearance. The record supported those findings. Summary judgment requires two duly demanded EUOs, two nonappearances and a timely denial. The different contact and signing attorney were at the same firm, and the affirmation was otherwise sufficient. 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
Mar 1, 2019
2019 NY Slip Op 51046(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51047(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51048(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51049(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint based on the provider's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2016-2048 K C.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51051(U)
Insurer prevailed
The insurer established lack of medical necessity through an affirmed peer review report that the provider did not rebut with medical evidence. The insurer moved for summary judgment dismissing the provider's action for assigned no-fault benefits. Its evidence established timely mailing of denials asserting lack of medical necessity, and its peer review report supplied a factual basis and medical rationale for the doctor's conclusion. The provider submitted no medical evidence in opposition to rebut that prima facie showing. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 1, 2019
2019 NY Slip Op 51058(U)
Insurer prevailed
The provider's no-fault action was untimely because it was commenced more than six years after accrual. A first-party no-fault cause of action accrues 30 days after the insurer receives the claim under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, and the six-year contract limitations period in CPLR 213 (2) applies. The insurer established receipt of all claim forms by June 6, 2008, making July 6, 2008 the accrual date. The provider commenced the action on February 10, 2015. The Appellate Term, Second Department, reversed the order denying the insurer's motion to dismiss and granted the motion.
Trial court, Second Department
Mar 28, 2019
2019 NY Slip Op 51594(U)
Provider prevailed
The insurer failed to establish admissible EUO scheduling letters or proper mailing of those letters and its denials. The Civil Court, Kings County, denied the insurer's summary judgment motion based on the provider's alleged EUO nonappearance. Counsel's affirmation did not satisfy CPLR 4518 (a): it stated that letters were created in the law firm's regular course of business but did not establish that making them was its regular practice or adequately identify the knowledgeable source. Independently, counsel and the claims adjuster provided conclusory descriptions of addressing and postage procedures that failed to establish proper mailing of the scheduling letters and denials. These deficiencies required denial regardless of the sufficiency of the provider's opposition.
Trial court, Second Department
Mar 22, 2019
2019 NY Slip Op 50905(U)
Insurer prevailed
The provider failed to show eligibility under the defendant insurer's policy to invoke mandatory priority-of-payment arbitration. The insurer sought dismissal under CPLR 3211 (a) (10) for failure to join a necessary party or additional time to answer under CPLR 2004. The Civil Court, Kings County, granted relief only to the extent of allowing the insurer to answer within 30 days. The insurer's affidavit stated that it never insured the assignor's vehicle. Without evidence of eligibility under its policy, 11 NYCRR 65-4.11 (a) (6) did not apply. The court excluded the police report under CPLR 4518 (c), but noted that the assignor's operation of his own vehicle was undisputed. It declined to consider a late-notice defense first raised in reply.
Trial court, Second Department
Mar 11, 2019
2019 NY Slip Op 50965(U)
Conflicting proof of claim submission prevented summary judgment for MVAIC on its defense that the provider billed beyond 45 days. The Civil Court, Kings County, denied both MVAIC's motion and the provider's cross motion. Under 11 NYCRR 65-1.1, health-service claims must be submitted within 45 days; 11 NYCRR 65-3.3 (e) requires a late-submission denial to advise that reasonable justification may excuse lateness. MVAIC established prima facie untimeliness, but the provider's owner's affidavit created a factual dispute. MVAIC also failed to supply the mailing envelopes or explain their absence. The provider nevertheless failed to establish admissible proof of mailing or that MVAIC's denial was late or legally insufficient.
Trial court, Second Department
Mar 11, 2019
2019 NY Slip Op 50648(U)
Provider prevailed
The insurer failed to establish proper mailing of IME notices because its proof did not explain how addresses were checked. The Civil Court, Queens County, denied the insurer's summary judgment motion under CPLR 3212 and dismissal motion under CPLR 3211 (a) (1), (5), and (7). The scheduling contractor's affidavit did not describe how the insurer or contractor ensured address accuracy. Its practice of using the claimant's address on the bill was inapplicable because the notices preceded the provider's claims. The documentary evidence did not conclusively establish a defense, and the complaint adequately pleaded a no-fault claim. A prior arbitration award against another provider did not bind this provider, which had neither agreed to be bound nor waived remedies at law.
Trial court, First Department
Mar 8, 2019
2019 NY Slip Op 29072
Insurer prevailed
An appellant may not amend an inquest transcript to change what was said, even if the respondent submits no objections. The Civil Court, New York County, denied the injured claimant's two sets of proposed amendments under CPLR 5525 (c) and settled the transcript as transcribed. The claimant sought appellate review after an inquest following the insurer's nonappearance resulted in dismissal for failure of proof. The proposed amendments changed testimony and the court's statements or otherwise failed to reflect the proceedings accurately. Although service compliance was unclear, the court would deny the amendments even if the technical requirements were satisfied. Appellate review required the record of what actually occurred, rather than a new record reflecting what the claimant believed should have occurred.
