Appellate Division, Third Department
May 30, 2019
2019 NY Slip Op 04242
Insurer prevailed
The insurer properly denied continuing lost wage benefits because the claimant was terminated for reasons unrelated to the injuries. Insurance Law § 5102 (a) (2) covers earnings from work the claimant would have performed absent injury; 11 NYCRR 65-3.16 (b) (6) continues benefits when discharge occurs solely because injury prevents work. Employer documentation showed termination for failure to comply with leave requirements, including failure to extend leave or provide status updates. The insurer could rely on that documentation, and no record evidence showed deliberate circumvention of its benefit obligation. Deferring to the nonjury trial findings, the Appellate Division, Third Department, affirmed the order and judgment dismissing the complaint. Any wrongful termination claim against the employer or leave administrator remained separate.
Appellate Division, Second Department
May 29, 2019
2019 NY Slip Op 04144
Provider prevailed
The provider's arbitration award established a potentially meritorious defense supporting vacatur of its default in the insurer's action. The insurer sought a de novo adjudication under Insurance Law § 5106 (c) after an arbitrator awarded no-fault benefits and a master arbitrator affirmed. The provider defaulted in answering and later moved under CPLR 5015 (a) (1). The Appellate Division, Second Department, affirmed the order granting vacatur. The provider demonstrated a reasonable excuse and attached the award and arbitration materials showing its prior success on the merits. Those materials established a potentially meritorious defense even though certain other evidence submitted for that purpose was inadmissible.
Appellate Division, First Department
May 28, 2019
2019 NY Slip Op 04087
Split result
Attorney fees for judicial review of a master arbitration award are fixed by the court under 11 NYCRR 65-4.10 (j) (4). The Appellate Division, First Department, reversed the fee order, vacated the award, and remanded for calculation of reasonable fees under that regulation. Supreme Court had instead applied 11 NYCRR 65-4.6, governing fees at an initial arbitration, and calculated fees as a percentage of the arbitration demand. Insurance Law § 5106 (a) authorizes reasonable fees for securing payment of overdue benefits, subject to regulatory limitations. The recalculated fees would apply only to the appeal; the provider's requests for additional underlying arbitration fees under 11 NYCRR 65-4.6 (c) or (d) were rejected as unpreserved.
Appellate Division, Second Department
May 15, 2019
2019 NY Slip Op 03749
Split result
The insurer established a fee-schedule defense but failed to show that the assignor's spinal fusion surgery was medically unnecessary. In a de novo action under Insurance Law § 5106 (c), the insurer sought summary judgment after an arbitrator awarded benefits and a master arbitrator affirmed. The Appellate Division, Second Department, modified the order to grant the insurer summary judgment on the fee-schedule issue and delete the provider's summary judgment award. The insurer established that the requested benefits exceeded the workers' compensation fee schedule, and the provider raised no triable issue. The peer reviews failed to establish lack of medical necessity, so denial of that branch remained intact. The provider's submissions did not support summary judgment upon searching the record.
Appellate Division, First Department
May 9, 2019
2019 NY Slip Op 03692
Insurer prevailed
An arbitrator must consider relevant CPT Assistant guidance incorporated into the workers' compensation fee schedule for no-fault claims. The insurer partially paid a surgical claim and relied on CPT Assistant to limit reimbursement. The arbitrator awarded the disputed balance after refusing to consider the newsletter as unauthorized, and the master arbitrator affirmed. The Appellate Division, First Department, reversed, granted the insurer's vacatur petition, and remanded for a new arbitration. Insurance Law § 5108 and 11 NYCRR 68.0 and 68.1 (a) (1) make the workers' compensation fee schedule applicable. That schedule incorporates the CPT book, which incorporates CPT Assistant; disregarding it was an error of law under 11 NYCRR 65-4.10 (a) (4).
Appellate Division, First Department
May 9, 2019
2019 NY Slip Op 03691
Split result
The insurer failed to establish proper notice of the IME location because its letters appeared to list a different address from the doctor's. The Appellate Division, First Department, affirmed denial of summary judgment and a default judgment declaring noncoverage for the claimant's IME nonappearance under 11 NYCRR 65-1.1 (a). Clearer copies submitted in reply did not cure the defect because there was no evidence the insured received a clear copy. Sworn statements captioned in other proceedings concerning the same accident were properly considered under CPLR 2101 (f). The court modified the order to permit amendment adding providers who allegedly treated the same claimant for the same accident, applying CPLR 1002 (b) and 3025 (b) absent prejudice or undue delay.
Appellate Term, Second Department
May 24, 2019
2019 NY Slip Op 50829(U)
Insurer prevailed
The provider's unexplained law office failure did not justify its delay in filing a notice of trial after a 90-day demand. Under CPLR 3216 (b) (3) and (c), the provider had to file within 90 days or timely move to vacate the demand or extend the period under CPLR 2004. Having done neither, it needed a justifiable excuse and a meritorious cause of action under CPLR 3216 (e). Although CPLR 2005 permits acceptance of law office failure, counsel supplied no detailed, credible explanation. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's CPLR 3216 dismissal motion; it found consideration of the claim's merits unnecessary.
Appellate Term, Second Department
May 24, 2019
2019 NY Slip Op 50822(U)
Insurer prevailed
An insurer may submit reply evidence responding to an IME-address objection first raised in opposition to summary judgment. The insurer established timely mailing of scheduling letters and denials and the assignor's nonappearance. The provider argued that the letters used the wrong address, relying on later bills. Reply submissions included the sworn NF-2 and police report, which showed that the letters used the only address known to the insurer when mailed. Because those documents answered a new opposition allegation, they could be considered. Nonappearance violated a coverage condition under 11 NYCRR 65-1.1. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, First Department
May 23, 2019
2019 NY Slip Op 50801(U)
Provider prevailed
A post-arbitration judicial determination of an insurer's liability is not a ground for vacating a no-fault arbitration award. The Civil Court vacated a master arbitrator's award because a subsequent Supreme Court order declared that the insurer owed no benefits arising from the accident. Although a pre-arbitration judicial decision may have preclusive effect sufficient to support vacatur, a later determination falls outside the limited grounds for vacating an award. Allowing it would prolong the controversy that arbitration is intended to conclude. The master arbitrator's affirmance was neither irrational nor contrary to controlling law. The Appellate Term, First Department, reversed the order, denied the insurer's petition and reinstated the master arbitration award.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50760(U)
Insurer prevailed
A different contact in an EUO letter does not undermine an otherwise sufficient affirmation of nonappearance by an attorney at the same firm. The insurer sought summary judgment dismissing the provider's assigned no-fault claims for failure to appear for EUOs. The Civil Court, Kings County, found, in effect under CPLR 3212 (g) that the insurer established timely and proper mailing of the scheduling letters and denials and the provider's nonappearance, but left the contact discrepancy for trial. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion because that discrepancy did not raise a triable issue.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50754(U)
Provider prevailed
The provider's owner's affidavit raised a triable issue as to timely submission of the claim despite the transit authority's denial of receipt. The transit authority moved for summary judgment dismissing the assigned no-fault claim, and its claims examiner's affidavit established nonreceipt of the claim form. In opposition, the owner's affidavit created a presumption of timely mailing and receipt under Residential Holding Corp. v Scottsdale Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the transit authority's motion because the competing proof left a factual issue as to timely submission.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50737(U)
Provider prevailed
MVAIC's time to deny a claim or request verification runs from receipt, regardless of whether the assignor's qualification has been determined. The Appellate Term, Second Department, reversed the order granting MVAIC summary judgment and denied its motion. The 30-day period did not await a determination of qualified-person status under Insurance Law § 5202 (b). For the first cause of action, MVAIC failed to establish timely verification requests. For the second, the provider's opposing affidavit created a presumption that the requested verification had been mailed to and received by MVAIC, raising a triable issue as to whether verification was supplied.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50753(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, relied on the reasons stated in companion appeal No. 2016-2886 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50759(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance. The provider appealed an order dismissing its assigned no-fault claims. The insurer's proof raised a presumption that the EUO scheduling letters and denial had been timely mailed and established the provider's failure to appear. Under Interboro Ins. Co. v Clennon, the insurer needed to show two duly demanded EUOs, two failures to appear, and a timely denial. The provider's challenge to the absence of objective reasons supplied no basis to disturb the order. The Appellate Term, Second Department, affirmed summary judgment for the insurer.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50738(U)
Insurer prevailed
The provider's Kings County post office box did not establish venue there for services rendered in Nassau County. The provider sued the transit authority in Civil Court, Kings County, for assigned no-fault benefits and argued that its cause of action arose where it directed payment to be sent. The Appellate Term, Second Department, affirmed the order granting the transit authority's motion to transfer the action to New York County under CCA 304 (b). Any entitlement to payment arose when and where the services were rendered, outside New York City, requiring the action to be brought in New York County.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50739(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it had supplied the insurer's requested verification. The provider appealed only the dismissal of its first cause of action for assigned no-fault benefits, which the insurer had sought on the ground that verification remained outstanding. The opposition affidavit raised a presumption that the requested verification had been mailed to and received by the insurer. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's summary judgment motion as to that cause of action.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50741(U)
Split result
The provider's proof raised factual disputes over timely submission of one claim and mailing of requested verification for another. The insurer sought summary judgment dismissing the first cause of action for untimely claim submission and the second for failure to supply verification. Its proof established timely mailing of requests and denials, late submission of the first claim, and nonreceipt of verification. The provider's proof, however, raised presumptions that both the claim form and verification had been timely mailed. Neither party was entitled to summary judgment. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and left the provider's motion denied.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50742(U)
Insurer prevailed
The insurer's summary judgment cross motion dismissing the first and third causes of action for EUO nonappearance was granted and affirmed. The insurer established timely mailing of the EUO scheduling letters and the provider's failure to attend the duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's challenges to that proof and affirmed the order, insofar as appealed from.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50743(U)
Insurer prevailed
The insurer established full payment for acupuncture services under the workers' compensation fee schedule applicable to chiropractors. The provider opposed summary judgment dismissing its assigned no-fault claims. The insurer's proof raised a presumption that its denial forms had been timely mailed and showed reimbursement in accordance with the schedule for acupuncture services performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider's remaining contention was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in favor of the insurer.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50744(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance. The provider sought assigned no-fault benefits and challenged the sufficiency of the insurer's proof of its failure to appear. That proof established nonappearance. Under Interboro Ins. Co. v Clennon, the required showing was two duly demanded EUOs, two failures to appear, and a timely denial. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50745(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's assigned no-fault claims was denied, and that denial was affirmed. The Appellate Term, Second Department, relied on the reasons stated in companion appeal Metro Psychological Servs., P.C. v Allstate Ins. Co., No. 2016-2907 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50746(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed the denial of the provider's summary judgment motion, relying on the reasons stated in companion appeal No. 2016-2886 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50747(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the first cause of action was granted and affirmed on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, including denial of the provider's motion on that claim, for the reasons stated in companion appeal No. 2016-2883 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50748(U)
Split result
The insurer failed to establish timely mailing of its denials, and the provider failed to establish entitlement to payment as a matter of law. In the provider's action for assigned no-fault benefits, the insurer's papers did not demonstrate that it was free from preclusion of its asserted defenses, requiring denial of its summary judgment motion. The provider also failed to show that the claims had not been timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed the denial of the provider's cross motion.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50749(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it had supplied the insurer's requested verification. The provider appealed only the grant of summary judgment dismissing its second cause of action for assigned no-fault benefits. Its opposition affidavit was sufficient to raise a presumption that the requested verification had been mailed to and received by the insurer. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion as to that cause of action; it reached no other issue.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50750(U)
Split result
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was denied on appeal. The Appellate Term, Second Department, modified the order while leaving the provider's summary judgment motion denied. It relied on the reasons stated in companion appeal Metro Psychological Servs., P.C. v Allstate Ins. Co., No. 2016-2907 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50751(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed the denial of the provider's summary judgment motion, relying on the reasons stated in companion appeal No. 2016-2883 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50755(U)
Split result
The insurer's summary judgment cross motion on the first, second, fourth, and fifth causes of action was denied on appeal. The Appellate Term, Second Department, modified the order and left the provider's summary judgment motion on those claims denied. It relied on companion appeal Metro Psychological Servs., P.C. v Allstate Ins. Co., No. 2016-2907 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50757(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed the denial of the provider's summary judgment motion, relying on the reasons stated in companion appeal No. 2016-2883 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50758(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed the denial of the provider's summary judgment motion, relying on the reasons stated in companion appeal No. 2016-2883 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50761(U)
Insurer prevailed
The insurer's motion for summary judgment based on the provider's failure to appear for EUOs was granted on appeal. The Civil Court, Kings County, had left for trial a discrepancy between the person named in the EUO letters and the person affirming nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in companion appeal No. 2017-575 K C, decided the same day.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50762(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's complaint was denied on appeal. The Appellate Term, Second Department, reversed the Civil Court's order for the reasons stated in Metro Psychological Servs., P.C. v Allstate Ins. Co., the companion appeal decided the same day, No. 2016-2907 K C.
Appellate Term, Second Department
May 10, 2019
2019 NY Slip Op 50763(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's complaint for EUO nonappearance was affirmed. The Appellate Term, Second Department, affirmed the Civil Court's order for the reasons stated in the companion appeal decided the same day, No. 2017-485 K C.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50698(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the claims based on the assignor's failure to appear for IMEs was upheld. The Appellate Term, Second Department, affirmed, finding sufficient proof of proper mailing of the scheduling letters 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., rejecting the provider's challenges.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50692(U)
Insurer prevailed
A provider must exhaust remedies against all potential insurance carriers before seeking no-fault benefits from MVAIC. Following a nonjury trial, Civil Court awarded judgment to the provider on its assigned claims. The Appellate Term, Second Department, reversed and remitted for entry of judgment in MVAIC's favor dismissing the complaint. Applying Hauswirth v American Home Assur. Co., the court found that the provider had not demonstrated exhaustion of its remedies and that its claim was therefore premature.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50690(U)
Insurer prevailed
The insurer's summary judgment dismissing the claims for failure to give accident notice within 30 days was affirmed. The dismissal rested on 11 NYCRR 65-1.1. The Appellate Term, Second Department, rejected the provider's sole argument concerning the insurer's denial-mailing practices and procedures, relying on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50676(U)
Insurer prevailed
MVAIC established that the notice to make claim was untimely, leaving the assignor outside covered-person status. The provider appealed an order granting MVAIC summary judgment dismissing its assigned no-fault claims. The Appellate Term, Second Department, affirmed. Failure to timely file under Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2), so a condition precedent to seeking payment was unsatisfied. The provider failed to establish that leave to file a late notice had been obtained under Insurance Law § 5208 (c) or otherwise raise a triable factual issue.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50677(U)
Insurer prevailed
The insurer's cross motion for summary judgment based on the provider's EUO nonappearance was granted, and dismissal was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's motion, finding the insurer's nonappearance proof sufficient under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The remaining arguments were unpreserved, meritless, or both.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50678(U)
Split result
The insurer failed to establish timely mailing of the follow-up EUO notice for the first cause of action. To obtain summary judgment on a provider's EUO nonappearance, an insurer must show two duly demanded EUOs, two failures to appear, and a timely denial. The insurer satisfied those requirements for the second cause of action, but the record did not establish compliance with 11 NYCRR 65-3.6 (b) for the first. It therefore failed to show that its defense to the first claim was not precluded. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the second cause of action and affirmed denial of dismissal of the first.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50679(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's IME nonappearance was granted, and dismissal was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion in the assigned no-fault action. It found proper mailing and nonappearance sufficiently 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
May 3, 2019
2019 NY Slip Op 50680(U)
Insurer prevailed
The insurer established timely EUO notices, the assignor's nonappearance on both scheduled dates, and a timely denial on that ground. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the provider's assigned no-fault claim. Although the insurer's delay letter did not toll the time to pay or deny, its initial and follow-up EUO scheduling letters were timely mailed. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court found the insurer's proof sufficient. The provider failed to raise a triable issue in opposition.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50682(U)
Split result
The provider's summary judgment motion was denied on appeal for failure to establish an untimely or legally insufficient denial. The Appellate Term, Second Department, reversed the judgment and vacated the grant of the provider's motion in the assigned no-fault action. It upheld denial of the insurer's cross motion because the insurer's papers did not establish lack of medical necessity as a matter of law.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50683(U)
An insurer's expert may testify to lack of medical necessity without having prepared the underlying peer review report. At a nonjury trial, the Civil Court excluded the substitute expert's testimony as hearsay and directed a verdict for the provider. The Appellate Term, Second Department, reversed the judgment and ordered a new trial. Following Park Slope Med. & Surgical Supply, Inc. v Progressive Ins. Co., the expert's testimony must remain within the denial's basis as stated in the peer review report. The provider must object if testimony exceeds that basis and, if necessary, produce the report. The insurer cannot use the report to prove lack of medical necessity or impermissibly bolster its expert's testimony.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50684(U)
The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay. The Appellate Term, Second Department, ordered a new trial of the assigned no-fault claims. It relied on the reasons stated in the companion appeal, North Am. Partners in Anesthesia, LLP v GEICO Gen. Ins. Co., decided the same day, No. 2017-91 Q C.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50685(U)
Insurer prevailed
The insurer's motion to vacate its default judgment was granted, and its answer was deemed timely. The Appellate Term, Second Department, affirmed the order in the provider's action for assigned no-fault benefits. Reviewing the record under CPLR 5015 (a) (1), it found no merit to the provider's sole contention that the insurer had failed to establish a reasonable excuse for its default.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50686(U)
The provider's directed verdict on medical necessity was reversed after the insurer's substitute expert was excluded as hearsay. The Appellate Term, Second Department, ordered a new trial of the assigned no-fault claims. It relied on the reasons stated in the companion appeal, North Am. Partners in Anesthesia, LLP v GEICO Gen. Ins. Co., decided the same day, No. 2017-91 Q C.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50687(U)
Split result
The insurer's EUO request was a nullity for four claims because it was sent more than 30 days after receipt. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing those four claims, while affirming dismissal of the remaining claims and denial of the provider's cross motion. For the remaining claims, the insurer established timely mailing of the initial and follow-up EUO notices and denials, and the provider's nonappearance, under 11 NYCRR 65-3.8 (l) and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider failed to establish that the four claims were denied late or that timely denials were legally insufficient.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50688(U)
Insurer prevailed
The insurer's summary judgment cross motion dismissing the complaint for the assignor's IME nonappearance was granted and affirmed. The insurer sufficiently established proper mailing of the scheduling letters and the assignor's failure to attend the scheduled IMEs. The Appellate Term, Second Department, affirmed the order, including denial of the provider's summary judgment motion on its assigned no-fault claims.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50689(U)
Provider prevailed
The provider's affidavit raised a triable issue as to whether it had supplied the insurer's requested verification. The insurer obtained summary judgment dismissing the provider's assigned no-fault action on the ground that requested verification had not been provided. The provider's opposition affidavit was sufficient to raise a presumption that the verification had been mailed to and received by the insurer, leaving a factual dispute. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50691(U)
Insurer prevailed
The insurer's affirmations and affidavits from the scheduled examining providers established the assignor's failure to attend the IMEs. In the provider's assigned no-fault action, the Civil Court, Kings County, denied the insurer's cross motion but found, in effect under CPLR 3212 (g) that nonappearance was the only issue remaining for trial. The examining providers' submissions resolved that issue sufficiently for summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing only the claims denied on the ground of the assignor's IME nonappearance.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50693(U)
Insurer prevailed
The insurer's attorney's affirmation established the provider's EUO nonappearance, and the insurer's proof supported proper mailing of the denial. The provider appealed an order dismissing its assigned no-fault claims and denying its summary judgment cross motion. The attorney had been present in the office to conduct the EUOs on the scheduled dates, making the affirmation sufficient proof of nonappearance. The insurer's supporting proof also raised a presumption that the denial form had been properly mailed. The Appellate Term, Second Department, affirmed the order granting summary judgment to the insurer and denying the provider's cross motion.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50695(U)
Insurer prevailed
The insurer's motion for summary judgment based on the provider's failure to attend duly scheduled EUOs was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed denial of the provider's summary judgment cross motion, relying on the reasons stated in companion appeal No. 2017-600 K C, decided the same day.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50696(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to obtain summary judgment based on a provider's nonappearance. In the provider's action for assigned no-fault benefits, the insurer's proof sufficiently demonstrated that the provider failed to attend the EUOs. Following Interboro Ins. Co. v Clennon, the insurer's required showing was two duly demanded EUOs, two failures to appear, and a timely denial. The provider's remaining contention lacked merit. The Appellate Term, Second Department, affirmed the order granting the insurer's summary judgment motion dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50697(U)
Insurer prevailed
The insurer's motion for summary judgment based on the provider's failure to attend duly scheduled EUOs was granted and affirmed on appeal. The Appellate Term, Second Department, also affirmed denial of the provider's summary judgment cross motion, relying on the reasons stated in companion appeal No. 2017-600 K C, decided the same day.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50699(U)
Insurer prevailed
The provider's summary judgment cross motion was denied because it failed to show an untimely or legally deficient denial. Its proof established neither that the assigned no-fault claim had not been timely denied nor that a timely denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
May 3, 2019
2019 NY Slip Op 50700(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish entitlement to summary judgment based on nonappearance. The provider appealed dismissal of its assigned no-fault claims for failure to attend duly scheduled EUOs. Following Interboro Ins. Co. v Clennon, the required showing was that the insurer twice duly demanded an EUO, the provider failed to appear, and the insurer timely denied the claims. The provider's contention supplied no basis to disturb the order. The Appellate Term, Second Department, affirmed summary judgment for the insurer.
Trial court, Second Department
May 17, 2019
2019 NY Slip Op 51589(U)
Split result
The insurer's deficient EUO proof and payment ledger defeated summary judgment on nonappearance and policy exhaustion. The Civil Court, Kings County, found that the notices concerned an employee and other claimants, counsel showed no personal knowledge of nonappearance, and timely denial was unproved. The ledger lacked a CPLR 4518 foundation, clear receipt dates and proof of payment priority under 11 NYCRR 65-3.15. The provider's summary judgment cross motion also failed: a prior improper-incorporation decision raised factual issues about eligibility when these services were rendered, a defense available under Mallela despite absence of a timely denial. All motions were denied except the provider's CPLR 3212 (g) request to establish that its bills were mailed to and received by the insurer.
Trial court, Second Department
May 15, 2019
2019 NY Slip Op 50798(U)
Provider prevailed
MVAIC failed to show that joining one provider's claims for six assignors caused inconvenience or prejudice warranting severance. The provider sought unpaid no-fault benefits for services rendered to six assignors injured in separate accidents. The Civil Court, Kings County, denied MVAIC's motion under CPLR 603. Relying on CPLR 601 (a) and CPLR 1002 (a), the court found commonality in the provider, defendant, insurance contract and governing no-fault law. It distinguished Mount Sinai Hospital v MVAIC, which involved multiple provider plaintiffs without a common insurance contract. MVAIC submitted no proof supporting its claimed burden, and severance would multiply proceedings and costs without a corresponding benefit.
Trial court, First Department
May 14, 2019
2019 NY Slip Op 50728(U)
Insurer prevailed
The insurer established timely IME requests and denials and the assignor's failure to appear for two IMEs. The Civil Court, Bronx County, granted the insurer summary judgment dismissing the complaint with prejudice, denied its remaining grounds as moot, and denied the provider's cross motion. Mailing affidavits and the examining physician's affirmation established timely notices and nonappearance under 11 NYCRR 65-1.1, 65-3.5 (b), and 65-3.6 (b). The physician's presence at the office and description of nonappearance procedures supplied personal knowledge. The 120-day verification rule in 11 NYCRR 65-3.5 (o) did not apply to IME requests. The court left the reasonableness of the notice periods unresolved because it was outside the insurer's prima facie burden and the provider submitted no assignor affidavit challenging convenience.
Trial court, Second Department
May 10, 2019
2019 NY Slip Op 29138
An EUO deponent's reimbursement for lost earnings turns on the actual monetary loss caused by attendance. The District Court, Nassau County, denied both sides' summary judgment motions under CPLR 3212 in an action seeking additional compensation under 11 NYCRR 65-3.5 (e). The provider's owner sought to include income beyond wages shown on a tax return. The owner's conclusory affidavit did not establish earnings lost through absence from the businesses, while the insurer offered no probative evidence that the disputed income was solely rental income or unaffected by attendance. Neither side established the businesses' activities or the financial consequences of the absence. Passivity of assets alone did not determine compensability.
