Appellate Division, Fourth Department
Nov 8, 2019
2019 NY Slip Op 08060
Provider prevailed
A master arbitrator may not conduct de novo review of medical evidence to overturn a no-fault arbitrator's award. The insurer denied a provider's surgical claim as medically unnecessary. The initial arbitrator awarded benefits because the insurer's peer review was conclusory, omitted appropriate medical standards, and failed to address the case's specifics. The master arbitrator vacated that award after independently finding the report apparently rational. Under Petrofsky, master review examines rationality and specified legal defects without reconsidering the evidence de novo. The Appellate Division, Fourth Department, affirmed the order in the CPLR article 75 proceeding vacating the master award, confirming the initial award, and denying the insurer's cross petition, because the master arbitrator exceeded the permitted authority.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51950(U)
Insurer prevailed
The insurer established an employment-related coverage issue requiring an initial determination by the Workers' Compensation Board. In the provider's action for assigned no-fault benefits, the insurer presented sufficient evidence that the assignor might have been acting in the course of employment when injured, making workers' compensation benefits potentially available. The Board has primary jurisdiction to determine the applicability of the Workers' Compensation Law, and courts should not express views on that question before the Board decides it. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to hold the action in abeyance pending the Board's determination of the parties' rights.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51954(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for its default, and the process server's affidavit showed proper service. The provider obtained a default judgment after the insurer failed to appear or answer. The Appellate Term, Second Department, affirmed denial of the insurer's motion under CPLR 5015 (a) (1). The affidavit of service established delivery to an employee authorized to accept process, constituting prima facie proof of service under CPLR 311 (a) (1). Vacatur required both a reasonable excuse and a potentially meritorious defense. Following Santomauro v Allstate Ins. Co., the court found the insurer's employee affidavit, virtually identical to the affidavit in that case, insufficient to establish an excusable default.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51948(U)
Insurer prevailed
The provider's summary judgment motion was denied, and the insurer's request to hold the action in abeyance was granted. The insurer sought a Workers' Compensation Board determination based on the assignor's alleged eligibility for workers' compensation benefits. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, Quality Health Prod., Inc. v American Tr. Ins. Co., No. 2017-2139 K C.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51949(U)
Provider prevailed
The insurer failed to prove timely mailing of its denial and therefore failed to establish entitlement to judgment on its EUO defense. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment based on the provider's failure to appear for three scheduled EUOs. Its submissions did not establish as a matter of law that the denial was timely mailed, so it did not demonstrate that the defense escaped preclusion. The insurer also invoked collateral estoppel based on an order in another action between the same parties. That doctrine did not apply to this denial because this claim was not at issue there. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51955(U)
Provider prevailed
The insurer's trial adjournment request was properly denied in light of the parties' stipulation barring further motion practice. After settling the insurer's motion to vacate a default, the parties stipulated that their prima facie cases were established and the action was ready for trial. The insurer later sought an adjournment pending resolution of its declaratory judgment motion in Supreme Court. An adjournment rests within the trial court's discretion, considering all relevant circumstances. The Appellate Term, Second Department, found no abuse of discretion given the stipulation and the unknown outcome of the Supreme Court action. It affirmed the judgment, insofar as appealed from, awarding benefits to the provider after the insurer stated it was unprepared to proceed at trial.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51956(U)
Insurer prevailed
A Civil Court summary judgment motion is timely when mailed to opposing counsel within 120 days after the notice of trial is filed. Under CPLR 3212 (a), CPLR 2211, and CPLR 2103 (b) (2), service by mail constituted making the motion. The insurer mailed its motion before the 120-day deadline, defeating the provider's objection based on filing time. The insurer's affidavits also established its standard mailing practices, timely mailing of denials, two duly demanded EUOs, and the assignor's two nonappearances. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion. Remaining contentions lacked merit or were unpreserved.
Appellate Term, Second Department
Nov 29, 2019
2019 NY Slip Op 51957(U)
Provider prevailed
The provider's judgment following denial of the insurer's request to adjourn trial pending a declaratory judgment ruling was affirmed. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, for the reasons stated in the companion appeal, XVV, Inc. v Warner Ins. Co., decided the same day, No. 2018-804 K C.
Appellate Term, Second Department
Nov 22, 2019
2019 NY Slip Op 51895(U)
Split result
Conflicting proof of claim mailing and receipt precluded summary judgment and conclusive findings in the provider's favor. The insurer supported its cross motion with prima facie proof that it had not received the claims, but the provider's owner's affidavit raised a factual issue concerning mailing under a standard practice and procedure. The Appellate Term, Second Department, therefore upheld denial of the insurer's cross motion. It vacated the implicit CPLR 3212 (g) findings establishing the provider's prima facie case for all purposes, because those findings conflicted with the unresolved receipt issue and, if truly conclusive, would have required judgment for the provider. The order, insofar as appealed from, was modified accordingly and otherwise affirmed.
Appellate Term, Second Department
Nov 22, 2019
2019 NY Slip Op 51887(U)
Split result
The insurer's summary judgment motion and the providers' cross motion were untimely under CPLR 3212 (a). Both were served more than 120 days after the providers filed their notice of trial, the Civil Court equivalent of a note of issue. Under CPLR 2211, a motion on notice is made when served. The insurer did not show good cause in its moving papers, and Civil Court improperly considered its good-cause argument first raised in reply. The providers' cross motion was likewise untimely and should not have been considered. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving the denial of the providers' cross motion in place.
Appellate Term, Second Department
Nov 22, 2019
2019 NY Slip Op 51891(U)
Split result
The judgment against the insurer was vacated for inadequate notice, but its unsupported excuse left the underlying default intact. The insurer answered but failed to appear for trial. The provider apparently served its judgment application one day before entry, rather than giving the five days' notice required by CPLR 3215 (g) (1). With no indication that notice was dispensed with, the defect deprived Civil Court of jurisdiction to entertain the application and warranted vacatur under CPLR 5015 (a) (4). The insurer's bald denial of receiving trial or other notices did not establish an excuse under CPLR 5015 (a) (1). The Appellate Term, Second Department, upheld vacatur but modified the order to strike the new-notice-of-trial and calendar-restoration provisions.
Appellate Term, Second Department
Nov 22, 2019
2019 NY Slip Op 51892(U)
Provider prevailed
The insurer failed to establish valid Florida policy rescission or that a Florida declaratory judgment bound the provider. Florida Statutes Annotated § 627.409 permits retroactive rescission, but § 627.728 (5) requires notice and return or tender of all premiums within a reasonable time after discovery of the grounds. The insurer failed to prove notice and admitted it had not returned all premiums. Although its unpleaded res judicata defense could be considered absent surprise or prejudice, the provider was neither named nor served in the Florida action. Its assignment preceded that action, so it lacked privity with the injured party and a full and fair opportunity to defend its interests. The Appellate Term, Second Department, reversed and denied the insurer's summary judgment motion.
Appellate Term, Second Department
Nov 15, 2019
2019 NY Slip Op 51843(U)
Insurer prevailed
An insurer need not establish a timely denial to preserve a fee schedule defense for services governed by 11 NYCRR 65-3.8 (g) (1) (ii). The provider sought an unpaid balance for services rendered in New Jersey after the regulation's effective date. The regulation bars payment of charges exceeding permissible fees under Insurance Law § 5108 (a) and (b). A certified medical coder's affidavit established that the insurer fully paid the claim under the New Jersey medical fee schedule pursuant to 11 NYCRR 68.6 (b) and (c). The provider's attorney affirmation, without demonstrated personal knowledge, raised no triable issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 15, 2019
2019 NY Slip Op 51842(U)
Provider prevailed
The insurer's reliance on a later Supreme Court stay did not warrant vacating the provider's Civil Court judgment. Civil Court had granted the provider's unopposed summary judgment motion before Supreme Court ordered proceedings permanently stayed and judgments vacated. Relief from a judgment generally must be sought in the court that rendered it. Civil Court's judicial function was complete upon granting summary judgment, and judgment entry was a ministerial act; no violation of the later stay occurred. The Appellate Term, Second Department, reversed and denied the insurer's motion to vacate the judgment, deny the provider's prior motion, and dismiss the complaint. It did not consider an earlier stay because the insurer's motion relied on the later order.
Appellate Term, Second Department
Nov 15, 2019
2019 NY Slip Op 51844(U)
Insurer prevailed
The insurer proved the provider's EUO nonappearances and timely mailing of the scheduling letters and denials. Civil Court denied both parties' summary judgment applications but found, implicitly under CPLR 3212 (g), that only EUO nonappearance remained for trial. On the insurer's limited appeal, its proof sufficiently demonstrated the provider's failure to appear, and the provider did not rebut that showing. The provider also challenged the implicit mailing findings, but the insurer's evidence established timely mailing of the EUO scheduling letters and denial forms. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51805(U)
Insurer prevailed
The providers' claims were barred by res judicata because an unvacated prior order had dismissed the identical causes of action. The insurer submitted the earlier order granting its unopposed summary judgment motion, along with the prior complaint, supporting affidavits, and claim forms. Those papers established that both actions concerned the same claims for the same assignor and accident. The providers had never moved to vacate their default in opposing the earlier motion. A final adjudication precludes relitigation of the same claims and claims arising from the same transaction by the parties or their privies. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51806(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and the denial, together with nonappearance at the scheduled EUOs. The provider appealed an order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment in an assigned no-fault action. The Appellate Term, Second Department, rejected the provider's challenges to the insurer's proof of mailing and EUO nonappearance. It declined to consider the provider's remaining arguments because they were raised for the first time on appeal. The order granting dismissal to the insurer and denying the provider's cross motion was affirmed.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51807(U)
Insurer prevailed
The provider's complaint was dismissed under CPLR 3216 because it offered no excuse for failing to comply with a 90-day demand. 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. To oppose dismissal after that default, it had to establish both a justifiable excuse for the delay and a meritorious cause of action. The provider made no attempt to demonstrate any excuse. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51809(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear at scheduled EUOs was granted and upheld. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, Allay Med. Servs., P.C. v Travelers Ins. Co., No. 2017-2383 K C.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51811(U)
Insurer prevailed
The insurer's summary judgment cross motion was granted for the provider's EUO nonappearance, and the provider's motion was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, Allay Med. Servs., P.C. v Travelers Ins. Co., No. 2017-2383 K C.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51812(U)
Insurer prevailed
The insurer's summary judgment cross motion was granted on the assignor's EUO nonappearance, and the provider's motion was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, Allay Med. Servs., P.C. v Travelers Ins. Co., No. 2017-2383 K C.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51813(U)
Insurer prevailed
The insurer's summary judgment motion was granted on the assignor's IME nonappearance, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal decided the same day, Allay Med. Servs., P.C. v Travelers Ins. Co., No. 2017-2383 K C.
Appellate Term, Second Department
Nov 8, 2019
2019 NY Slip Op 51814(U)
Insurer prevailed
The insurer's summary judgment motion dismissing the provider's claims for failure to appear at scheduled EUOs was granted and upheld. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, Allay Med. Servs., P.C. v Travelers Ins. Co., No. 2017-2383 K C.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 29341
Split result
An insurer must deny a claim for failure to provide verification within 30 days after the 120-day response period expires. The Appellate Term, Second Department, modified the order to deny MVAIC's cross motion for summary judgment dismissing the complaint with prejudice and, upon searching the record, dismissed without prejudice. Applying 11 NYCRR 65-3.5 (o) and 65-3.8 (a) (1) and (b) (3), the majority found denials mailed 208 days after the initial requests untimely. The provider's incomplete responses nevertheless left the action premature. MVAIC's EUO requests were nullities for the claims at issue and supplied no alternative basis for dismissal with prejudice. A partial dissent disputed both review of the newly raised timeliness argument and the 150-day denial deadline.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51792(U)
Insurer prevailed
The insurer established that it validly canceled the policy for nonpayment before the accident, defeating the provider's claim. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment based on lack of coverage. The insurer proved mailing of the cancellation letter under Vehicle and Traffic Law § 313 (1) and filing of the cancellation notice with DMV within 30 days of the cancellation's effective date under Vehicle and Traffic Law § 313 (2) (a). The cancellation was effective against the assignor, who was neither the named insured nor a household member. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51798(U)
Insurer prevailed
The insurer proved its verification defense based on the provider's failure to supply requested verification within 120 days. The insurer sought summary judgment dismissing the assigned no-fault claim under 11 NYCRR 65-3.5 (o). Its proof established prima facie that it timely mailed initial and follow-up verification requests, did not receive the requested verification, and timely denied the claim on that ground. The provider's opposition raised no triable issue of fact. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granting the provider's cross motion for summary judgment. It granted the insurer's motion dismissing the complaint and denied the provider's cross motion.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51793(U)
Provider prevailed
The insurer failed to establish timely EUO scheduling because its first letter was mailed more than 30 days after receipt of the claims. The insurer's cross motion sought dismissal for failure to appear at EUOs. Although the provider may have first raised scheduling timeliness on appeal, the majority considered it as a legal question apparent on the record that could not have been avoided if timely raised. The insurer's own affidavit established the delay, defeating entitlement to summary judgment on the condition-precedent defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion; a dissent would have affirmed because the timeliness argument was unpreserved.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51796(U)
Insurer prevailed
The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors. In the provider's assigned no-fault action, the insurer's cross-motion proof also supported a presumption that the denial forms had been timely mailed. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., its evidence demonstrated payment in accordance with the applicable acupuncture fee schedule. The provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint; it reached no other issue.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51794(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and nonappearance at the scheduled EUOs for the six claims on appeal. The provider challenged the branches of the insurer's summary judgment motion that dismissed those assigned no-fault claims. The Appellate Term, Second Department, rejected the provider's challenges to the proof of mailing and nonappearance and found its remaining contentions meritless. It affirmed the order, insofar as appealed from, leaving dismissal of the six claims in the insurer's favor intact.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51797(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's complaint 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. 2018-962 K C.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51800(U)
Provider prevailed
The insurer was denied summary judgment because the provider had not received requested medical records needed to oppose the motion. The insurer sought dismissal of the assigned no-fault action for lack of medical necessity. The provider invoked CPLR 3212 (f) and cross-moved under CPLR 3124 to compel discovery. It demonstrated that it had requested the records relied on by the insurer's peer reviewer but had not received them in time to oppose summary judgment. The Appellate Term, Second Department, reversed the order granting dismissal and denying discovery. It denied the insurer's motion and granted the provider's cross motion to compel the requested discovery.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51801(U)
Provider prevailed
The insurer failed to prove a timely workers' compensation denial, defeating its request to hold the no-fault action in abeyance. The insurer cross-moved for an abeyance pending a Workers' Compensation Board determination of the parties' rights, based on the assignor's alleged eligibility for workers' compensation benefits. That defense is subject to preclusion under Westchester Med. Ctr. v Lincoln Gen. Ins. Co. The insurer did not demonstrate timely denial on the ground that the assignor was injured in the course of employment, with the court citing 11 NYCRR 65-3.5 (a) and Presbyterian Hosp. in City of NY v Maryland Cas. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51802(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity, and the provider's doctor's affidavit failed to rebut its conclusions. The provider sought assigned no-fault benefits for supplies, and the insurer moved for summary judgment on medical necessity and other grounds. The peer review report sufficiently supplied a factual basis and medical rationale for finding the supplies unnecessary. The opposing doctor's affidavit did not meaningfully address or sufficiently rebut the report's conclusions, following Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, affirmed the order granting the insurer's motion dismissing the complaint and denying the provider's cross motion for summary judgment; it reached no other issue.
Appellate Term, Second Department
Nov 1, 2019
2019 NY Slip Op 51803(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the provider's complaint 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, Acupuncture Now, P.C. v Global Liberty Ins., No. 2018-962 K C.
Trial court, Second Department
Nov 12, 2019
2019 NY Slip Op 29382
Provider prevailed
The insurer's provider EUO requests were untimely because it had already denied the claims and no bills remained outstanding. The Civil Court, Richmond County, denied the insurer's motion under CPLR 3212 and granted the provider's cross motion to establish its prima facie case. The insurer was bound by its earlier denials and could not unilaterally reconsider the claims to demand further verification. Its later EUO letters related back to the denied claims rather than newly received bills, precluding the EUO defense. Conflicting EUO testimony created factual issues concerning the alleged intentional loss. The police report was uncertified under CPLR 4518, and the officer neither witnessed nor investigated the occurrence. Whether the occurrence was covered, given alleged misrepresentations or staging, remained the sole issue for trial.
