Appellate Division, First Department
Nov 24, 2020
2020 NY Slip Op 06974
Insurer prevailed
An insurer establishes a coverage disclaimer by requesting an IME within 15 days of a claim and proving two duly noticed IME no-shows. The insurer submitted an NF-3 claim, evidence of an IME request within 15 days of receipt, and proof that the injured claimant missed two duly noticed IMEs. The Appellate Division, First Department, reversed the denial of summary judgment on the insurer's first cause of action, granted the motion, and declared no coverage obligation for the two respondent providers' claims. Following Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., the showing defeated further coverage obligations and reimbursement of outstanding bills for all treating providers.
Appellate Division, First Department
Nov 19, 2020
2020 NY Slip Op 06855
Provider prevailed
An insurer's vague IME-based denial supported a rational arbitration award of no-fault benefits to the providers. The denial supplied no IME findings and did not check the NF-10 boxes identifying lack of medical necessity. Under 11 NYCRR 65-3.2 (e) and General Acc. Ins. Group v Cirucci, the insurer had to identify its grounds with a high degree of specificity. The Appellate Division, First Department, affirmed denial of the insurer's CPLR article 75 petition because the award was rational and not arbitrary and capricious. It remanded for determination of the providers' reasonable appellate attorney fees under 11 NYCRR 65-4.10 (j) (4).
Appellate Division, First Department
Nov 12, 2020
2020 NY Slip Op 06474
Insurer prevailed
The insurer proved mailing of IME notices and the claimant's three nonappearances despite an incorrect floor designation. In an action for de novo review under Insurance Law § 5106 (c), detailed business-practice affidavits and postal ledgers supported presumed receipt. The address was otherwise correct, and the provider offered no evidence of nonreceipt or building configuration suggesting misdelivery. The nonappearances breached a condition precedent to coverage under 11 NYCRR 65-1.1. The Appellate Division, First Department, reversed the order, granted the insurer summary judgment declaring no obligation to pay, and denied the provider's cross motion to confirm the arbitration award.
Appellate Term, Second Department
Nov 27, 2020
2020 NY Slip Op 20364
Insurer prevailed
The provider's appeal from a sua sponte stay of no-fault interest was dismissed because that ruling was not appealable as of right. After the insurer failed to pay a settlement, the provider obtained judgment under CPLR 5003-a and moved under CPLR 5019 (a) to recalculate interest. The Civil Court granted that motion but sua sponte stayed statutory no-fault interest. The Appellate Term, Second Department, dismissed the appeal under CCA 1702 (a) (2) and declined leave to appeal. The provider had not moved to vacate the stay, denial of which could have been appealed under CCA 1702 (a) (3). One justice dissented, favoring leave to appeal and vacatur of the interest stay.
Appellate Term, Second Department
Nov 20, 2020
2020 NY Slip Op 51429(U)
Insurer prevailed
A provider's appeal from sua sponte vacatur of its judgment was dismissed, and its request to recalculate no-fault interest was moot. After the insurer failed to pay a settlement, the provider obtained a judgment and sought compound rather than simple interest under CPLR 5019 (a). The Appellate Term, Second Department, dismissed the appeal because the vacatur was not appealable as of right under CCA 1702 (a) (2), declined leave, and dismissed the interest issue as moot. It noted that claims submitted before April 5, 2002 are governed by former 11 NYCRR 65.15 (h) (1), providing compound interest.
Appellate Term, Second Department
Nov 20, 2020
2020 NY Slip Op 51433(U)
Provider prevailed
The insurer's high claims volume did not reasonably excuse a six-month failure to review a summons and complaint. The Appellate Term, Second Department, affirmed denial of the insurer's motion under CPLR 5015 (a) (1) to vacate a judgment entered after its failure to appear or answer. The insurer admitted personal delivery and contemporaneous scanning of the pleadings into its database. Its only explanation was that the adjuster did not review them until receiving notice of default six months later, and almost two more months passed before it sought vacatur. Without a reasonable excuse, the insurer could not obtain relief; the court did not consider whether it had a potentially meritorious defense.
Appellate Term, Second Department
Nov 19, 2020
2020 NY Slip Op 51420(U)
Provider prevailed
The insurer's failure to demand a trial de novo made the mandatory arbitration award final and defeated its request to vacate the judgment. The provider obtained an award in District Court mandatory arbitration under 22 NYCRR part 28. The insurer later sought vacatur based on an earlier default declaratory judgment disclaiming first-party benefits. Under 22 NYCRR 28.12, a trial de novo demand was due within 30 days, or 35 days if notice of the award was served by mail. Because no demand was served or filed, the award became final under 22 NYCRR 28.11 (b), leaving no basis to vacate the judgment. The Appellate Term, Second Department, affirmed denial of the insurer's motion and reached no other issue.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51364(U)
Insurer prevailed
An insurer need not state objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment for nonappearance. The Civil Court found under CPLR 3212 (g) that the insurer established timely and proper mailing of scheduling letters and the denial, and the provider's nonappearance, but left the requests' reasonableness for trial. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, explained that the insurer must prove two duly demanded EUOs, two failures to appear, and timely denial. Those elements were established, and the provider's reasonableness argument raised no triable issue. The order, insofar as appealed from, was reversed and the insurer's motion to dismiss the complaint was granted.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51379(U)
Insurer prevailed
A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim. The insurer established that the policy sued upon was a workers' compensation policy that did not cover the provider's claim for assigned first-party no-fault benefits. The provider neither demonstrated an applicable automobile policy issued by the insurer nor otherwise raised a triable factual issue. Following Ultimate Health Prods., Inc. v Hereford Ins. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51366(U)
Insurer prevailed
The insurer established nonreceipt of all requested verification, and dismissal of the provider's complaint without prejudice was affirmed. The insurer sought summary judgment based on the provider's failure to supply verification within 120 days after the initial request under 11 NYCRR 65-3.8 (b) (3) and 65-3.5 (o). The Appellate Term, Second Department, rejected the provider's challenge to proof of nonreceipt and found its remaining contention academic because dismissal was without prejudice. It affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51384(U)
Insurer prevailed
A first-party no-fault cause of action accrues 30 days after the insurer receives the claim and carries a six-year limitations period. The insurer moved to dismiss the provider's assigned-benefits action under CPLR 3211 (a) (5). Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, the cause of action accrued after the 30-day payment period, and CPLR 213 (2) supplied the contract limitations period. The record established commencement more than six years after accrual, and the provider failed to raise a factual issue concerning timeliness. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint as time-barred.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51365(U)
Provider prevailed
The insurer's later payments did not warrant summary judgment on policy exhaustion after partial denials of the disputed claims. The insurer alleged that payments of other claims after those denials exhausted available coverage. Even if true, that allegation did not justify dismissal under 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co. The insurer's alternative fee-schedule ground also failed because its moving papers did not establish that the charges exceeded the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the order and denied the insurer's motion for summary judgment dismissing the provider's complaint.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51369(U)
Insurer prevailed
The insurer established the assignor's failure to attend both scheduled EUOs and timely denials based on that nonappearance. In the provider's action for assigned first-party no-fault benefits, the insurer proved timely mailing of the initial and follow-up EUO scheduling letters and failure to appear on either date. The provider raised no triable factual issue in opposition. The Appellate Term, Second Department, reversed the order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51371(U)
Split result
The insurer proved proper fee-schedule payments, but a factual dispute remained over medical necessity of a separate service claim. The insurer sought summary judgment dismissing the provider's action for assigned first-party no-fault benefits. Its proof established that claims denied in part for exceeding the workers' compensation fee schedule had been properly paid, and the provider raised no triable issue concerning those payments. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the unpaid portions of those claims. It otherwise affirmed, leaving the separate claim subject to the medical-necessity dispute pending.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51359(U)
Insurer prevailed
The provider's challenges to the insurer's summary judgment motion were unpreserved because they were raised for the first time on appeal. In this action for assigned first-party no-fault benefits, the Civil Court granted the insurer's motion dismissing the complaint and denied the provider's cross motion for summary judgment. The Appellate Term, Second Department, declined to consider all of the provider's arguments for denying the insurer's motion and affirmed the order.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51360(U)
Insurer prevailed
The insurer established full fee-schedule payment for acupuncture services billed under CPT codes 97813 and 97814. The disputed services were rendered after April 1, 2013, and the record showed full payment under the workers' compensation fee schedule. Applying 11 NYCRR 65-3.8 (g) (1) (ii) and (2), the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion to dismiss all claims billed under those codes. It also denied the branch of the provider's motion seeking summary judgment on those coded claims for the one assignor as to whom summary judgment had been granted below.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51362(U)
Split result
The provider failed to establish its prima facie case, and the insurer failed to schedule the initial IME within the required 30 days. The provider did not show that its claims were denied untimely or that timely denials were conclusory, vague, or without merit as a matter of law. The insurer also lacked entitlement to summary judgment on IME nonappearance because the initial examination was not scheduled within 30 calendar days after receipt of the claims, as required by 11 NYCRR 65-3.5 (d). The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied that motion, leaving the denial of the insurer's cross motion intact.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51363(U)
Split result
Striking a pleading for discovery noncompliance requires a clear showing that the failure was willful, contumacious, or in bad faith. The provider had stipulated to answer interrogatories and demands for discovery, inspection, and expert disclosure within 60 days. The insurer obtained dismissal under CPLR 3126, but no disclosure order had been entered and the insurer did not clearly establish willful, contumacious, or bad-faith noncompliance with the demands or stipulation. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting dismissal, and granted the insurer's motion only to compel the specified responses within 60 days of its decision.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51367(U)
Insurer prevailed
The insurer proved the provider's EUO nonappearance and timely mailing of scheduling letters and denials, and the provider failed to rebut nonappearance. The Civil Court denied both sides' summary judgment motions but, under CPLR 3212 (g), left only the EUO nonappearance defense for trial. On the insurer's limited appeal, the Appellate Term, Second Department, found the nonappearance proof sufficient and unrebutted. It also rejected the provider's challenge to the implicit findings on mailing because the insurer's proof established timely mailing of both scheduling letters and denial forms. The order, insofar as appealed from, was reversed and the insurer's motion to dismiss the complaint was granted.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51368(U)
Insurer prevailed
The insurer's proof established proper mailing of IME scheduling letters and the assignor's nonappearance at the scheduled IMEs. The provider appealed summary judgment dismissing its action for assigned first-party no-fault benefits on the IME nonappearance defense. The Appellate Term, Second Department, rejected the provider's challenges to the sufficiency of the mailing and nonappearance proof. Its remaining arguments were improperly raised for the first time on appeal and/or lacked merit. The order granting the insurer's motion was affirmed.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51370(U)
Split result
Conflicting proof of mailing and receipt of claim forms precluded summary judgment on the provider's second and third causes of action. The insurer submitted sufficient prima facie proof that it had not received those claim forms. The provider's billing administrator's affidavit nevertheless raised a factual issue as to mailing, leaving receipt disputed. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the provider's motion for summary judgment on those two causes of action and otherwise affirmed the denial of the insurer's cross motion to dismiss them.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51372(U)
Split result
The provider's affidavit raised a factual issue over delivery of requested verification, precluding summary judgment for either side. The insurer established timely mailing of initial and follow-up requests, nonreceipt of verification, and timely denials under 11 NYCRR 65-3.5 (o). The provider's opposing affidavit, however, supported a presumption that the verification was mailed to and received by the insurer. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the underlying order granting its cross motion, and denied that cross motion. The denial of the insurer's motion for summary judgment dismissing the complaint remained in place.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51373(U)
Split result
Factual disputes over medical necessity and timely claim submission precluded summary judgment and a trial limited to the fee schedule. The insurer sought dismissal based on lack of medical necessity, submission beyond 45 days after supplies were provided, and charges exceeding the workers' compensation fee schedule. The Civil Court denied the motion but found the claims timely and properly mailed under CPLR 3212 (g), leaving only the fee schedule for trial. The Appellate Term, Second Department, modified the order, insofar as appealed from, to vacate that finding and trial limitation because medical necessity and submission timeliness remained disputed, and otherwise affirmed.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51374(U)
An insurer awaiting timely requested verification need not deny a claim even when it already has a ground for denial. At a nonjury trial limited to denial timeliness, the Civil Court directed a verdict for the provider without hearing the insurer's witness because IME nonappearance denials were mailed more than 30 days after nonappearance. The witness was prepared to testify that denials followed completion of a timely requested EUO within 30 days. Following Parisien v Citiwide Auto Leasing, the Appellate Term, Second Department, held that the denial period awaits all requested verification, reversed the order, granted the insurer's CPLR 4404 (b) motion to set aside the decision and judgment, and ordered a new trial.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51376(U)
Provider prevailed
The insurer's summary judgment motion based on EUO nonappearance was denied because timely denials were not established. The Appellate Term, Second Department, affirmed the order, finding that the record did not establish timely denials after the provider missed an initial and a follow-up EUO. The insurer had asserted tolling under 11 NYCRR 65-3.5 (b) and 65-3.6 (b).
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51377(U)
Insurer prevailed
The insurer established timely mailing of IME scheduling letters and the assignor's failure to appear for the duly scheduled examinations. An affidavit from a supervisor of the service retained to schedule IMEs sufficiently proved mailing. The insurer also established nonappearance and timely denials on that ground, demonstrating failure to comply with a condition precedent to coverage under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider raised no triable factual issue. 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 13, 2020
2020 NY Slip Op 51378(U)
Split result
The insurer proved its EUO nonappearance defense against one provider but failed to establish timely denials of the other provider's claims. For the medical provider, the insurer established timely mailing of initial and follow-up EUO scheduling letters, nonappearance on both dates, and timely denials; the provider raised no triable issue. For the chiropractic provider, the insurer asserted tolling under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), but did not establish timely denials after the two nonappearances. The Appellate Term, Second Department, modified the order to grant summary judgment dismissing the medical provider's claims and otherwise affirmed the denial of the insurer's motion.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51380(U)
Insurer prevailed
The insurer raised factual issues about whether a material misrepresentation was made in connection with issuance of the policy. In this action to recover assigned first-party no-fault benefits, the insurer limited its appeal to the grant of the provider's cross motion for summary judgment. Reviewing the record, the Appellate Term, Second Department, found factual disputes both as to whether a misrepresentation occurred and, if so, whether it was material. It reversed the order, insofar as appealed from, and denied the provider's cross motion.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51381(U)
Insurer prevailed
The insurer's payment log was properly considered on its motion for summary judgment based on exhaustion of available coverage. The provider appealed an order granting the insurer's motion to dismiss the complaint on that ground and denying the provider's cross motion for summary judgment. The Appellate Term, Second Department, rejected the provider's challenge to consideration of the payment log and affirmed the order.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51382(U)
Provider prevailed
The insurer failed to establish proper addressing and mailing of the IME scheduling letters supporting its nonappearance defense. In the provider's action to recover assigned first-party no-fault benefits, the insurer sought summary judgment dismissing the complaint based on the assignor's failure to attend IMEs. Its moving papers did not establish that the examinations were duly scheduled and therefore did not demonstrate nonappearance at duly scheduled IMEs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
Nov 13, 2020
2020 NY Slip Op 51383(U)
Insurer prevailed
The provider failed to establish that the insurer's denial was untimely or legally insufficient on the second cause of action. In this action for assigned first-party no-fault benefits, the insurer limited its appeal to the grant of summary judgment on that cause of action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied that branch of the provider's motion. The provider had not demonstrated either a failure to deny the claim timely or a timely denial that was conclusory, vague, or without merit as a matter of law.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51337(U)
Insurer prevailed
The insurer established full payment of acupuncture claims under the workers' compensation fee schedule for services performed by chiropractors. The provider sought unpaid portions of claims billed under CPT codes 97810 and 97811. The insurer's proof supported a presumption of timely mailing of denial forms and established payment under the applicable schedule, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing those unpaid portions and denying the corresponding branches of the provider's motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51341(U)
Split result
The defendant failed to prove proper mailing of IME scheduling letters, and the provider failed to establish entitlement to summary judgment. The defendant's affidavit did not adequately describe an office practice ensuring that the scheduling letters were properly addressed and mailed. It therefore failed to establish that the assignor missed duly scheduled IMEs under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's affidavit also failed to establish an untimely denial or a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the defendant's motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the provider's cross motion denied.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51327(U)
The dismissal of the provider's claims on MVAIC's outstanding-verification defense was reversed, and a new trial was ordered. At trial, the provider declined to call witnesses, disputing the placement of the burden to establish whether verification remained outstanding. The Appellate Term, Second Department, remitted for a new trial on that issue for the reasons stated in Island Life Chiropractic, P.C. v Travelers Ins. Co.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51320(U)
Insurer prevailed
The insurer proved timely EUO notices and denials and the assignor's nonappearance, while the provider raised no triable issue. The Civil Court had denied the insurer's motion for summary judgment and granted the provider's cross motion in an action for assigned no-fault benefits. The insurer established timely mailing of initial and follow-up EUO scheduling letters, failure to attend either scheduled date, and timely denials on that ground. The Appellate Term, Second Department, deemed the appeal taken from the subsequent judgment under CPLR 5501 (c), reversed that judgment, vacated the order, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51323(U)
Split result
The insurer's EUO request was untimely for two claims, and conflicting mailing proof raised a factual issue on six others. The insurer established nonreceipt of claims underlying the second, third, and sixth through ninth causes of action, but the provider's owner's affidavit raised a presumption of timely mailing and receipt. For the fourth and fifth causes, the initial EUO request, sent more than 30 days after receipt, was a nullity. The provider nevertheless failed to establish entitlement to summary judgment under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's motion on the second through ninth causes and affirmed denial of the provider's cross motion on those causes.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51324(U)
Insurer prevailed
The insurer proved timely EUO scheduling letters and the assignor's nonappearance, and the challenged mailing affidavit bore a notarial seal. Initial and follow-up letters were timely mailed to the assignor at the address listed on the provider's bills. Counsel's contemporaneous affirmations established failure to attend either EUO. The provider argued that the affidavit offered to prove timely mailing of the denials lacked an embossed seal and therefore failed to comply with Alabama law, Real Property Law § 299-a, and CPLR 2309 (c). The record showed that the seal was affixed. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the insurer and denial of the provider's cross motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51325(U)
Provider prevailed
The insurer failed to demonstrate a reasonable excuse for its default, while the provider established entitlement to a default judgment. Under CPLR 5015 (a) (1), opening an excusable default requires both a reasonable excuse and a potentially meritorious defense. Although CPLR 2005 permits law office failure as an excuse, it must be supported by a detailed and credible explanation. The insurer did not meet its burden. The provider satisfied CPLR 3215 (f) by showing service, a viable cause of action, and the default. The Appellate Term, Second Department, reversed, granted the provider leave to enter a default judgment, and denied the insurer's cross motion to open the default and compel acceptance of its late answer.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51326(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to summary judgment, and the insurer raised a triable issue of medical necessity. The provider did not show either an untimely denial or a timely denial that was conclusory, vague, or meritless as a matter of law. The insurer also raised a factual dispute over whether the supplies allegedly furnished were medically necessary. Under 11 NYCRR 65-3.8 (h), a nonsubstantive technical defect concerning the date requested verification was received did not invalidate the denial. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, vacated summary judgment for the provider on the first cause of action, and denied that branch of its motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51328(U)
Insurer prevailed
The insurer's summary judgment motion was granted after the record was found sufficient to establish mailing of EUO notices and denials. The Appellate Term, Second Department, affirmed dismissal of the provider's complaint and denial of its cross motion, relying on St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. for the sufficiency of mailing proof.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51329(U)
Insurer prevailed
The insurer's affidavits established timely mailing of IME notices and the denial, and the assignor's failure to attend the IMEs. The scheduling company's employee executed affidavits on the dates the scheduling letters were mailed, sufficiently proving timely mailing. The medical provider who was to perform the IMEs supplied an affidavit establishing nonappearance, and the insurer's claims examiner established timely mailing of the denial based on that nonappearance. The Appellate Term, Second Department, rejected the provider's challenges and affirmed denial of its summary judgment motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51330(U)
Insurer prevailed
The provider's appeal was dismissed because it submitted no opposition papers and the order recited no oral opposition arguments. The Civil Court had granted the insurer summary judgment dismissing claims for services rendered to five of the provider's seven assignors. Applying CPLR 2219 (a) and the cited appellate authorities, the Appellate Term, Second Department, concluded that the order, insofar as appealed from, could not be reviewed on direct appeal in these circumstances. The provider's remedy was to move in the Civil Court to vacate the order.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51331(U)
Split result
The insurer proved its IME nonappearance defense to one claim but failed to establish timely EUO denials for the remaining claims. An affidavit from the general manager of the company retained to schedule IMEs established timely mailing of the scheduling letters. The insurer also proved the assignor's nonappearance and timely denial, and the provider raised no triable issue. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., attendance was a condition precedent to coverage. For the remaining claims, the insurer failed to show it was not precluded from asserting EUO nonappearance. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the IME-based claim and otherwise affirmed denial of the insurer's cross motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51332(U)
Insurer prevailed
The insurer established timely IME notices and denials and the assignor's nonappearance, warranting dismissal of the provider's claims. The insurer sought summary judgment based on the assignor's failure to attend scheduled IMEs and EUOs. Its proof established timely mailing of the initial and follow-up IME scheduling letters, nonappearance on the scheduled dates, and timely denials on that ground. The provider raised no triable issue in opposition under 11 NYCRR 65-3.8 (h). The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint, without reaching the EUO contention.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51333(U)
Insurer prevailed
The insurer's supervisor and mailing officer affidavits established proper mailing of the denial of claim forms. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. Applying St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., it rejected the provider's mailing challenge based on the no-fault supervisor's affidavit and the mailing officer's contemporaneous affidavits.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51335(U)
Split result
The insurer's motion for summary judgment dismissing the first cause of action was denied on appeal. The Appellate Term, Second Department, relied on the companion appeal, NL Quality Med., P.C. v GEICO Ins. Co., decided the same day, No. 2018-2283 K C. It otherwise affirmed dismissal of the remaining claims and denial of the provider's cross motion for summary judgment.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51336(U)
Insurer prevailed
The insurer's cross motion for summary judgment on the chiropractic fee schedule defense was granted, and the provider's motion was denied. The Appellate Term, Second Department, affirmed the order for the reasons stated in the companion appeal, Flushing Traditional Acupuncture, P.C. v GEICO Ins. Co., decided the same day, No. 2018-2154 K C.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51338(U)
Insurer prevailed
The insurer's cross motion for summary judgment on unpaid CPT code 97810 and 97811 claims was granted on fee-schedule grounds. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, including denial of the provider's motion, for the reasons stated in the companion appeal decided the same day, No. 2018-2154 K C.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51339(U)
Insurer prevailed
The insurer's certified medical coder's affidavit established proper use of the workers' compensation fee schedule to determine reimbursement. The provider appealed summary judgment dismissing its assigned first-party no-fault benefits action on the ground that the insurer had fully paid for the services. The Appellate Term, Second Department, rejected the provider's challenge to the coder's affidavit, found that the provider had not rebutted the insurer's showing, and rejected its remaining contention as lacking merit. It affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51340(U)
Split result
The insurer proved EUO nonappearance and a policy deductible on four causes of action, but its fee-schedule proof failed on the second. For the third through fifth causes, the insurer established timely mailing of EUO letters and denials and the provider's nonappearance, showing breach of a coverage condition. A personal injury protection deductible supported dismissal of the first cause. For the second, fee-schedule documents lacked authentication, foundation, or discussion, but a factual issue over additional reimbursement also defeated the provider's cross motion. The Appellate Term, Second Department, modified the order to deny the insurer's motion on the second cause and otherwise affirmed dismissal of the first and third through fifth causes and denial of the provider's cross motion.
Appellate Term, Second Department
Nov 6, 2020
2020 NY Slip Op 51343(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint on full-payment grounds was granted and affirmed on appeal. The Appellate Term, Second Department, relied solely on the reasons stated in the companion appeal decided the same day, No. 2018-2277 K C, in the provider's action for assigned first-party no-fault benefits.
Trial court, First Department
Nov 19, 2020
2020 NY Slip Op 51398(U)
Insurer prevailed
The provider's nerve-block and surgery awards were treated as one award meeting the $5,000 threshold for de novo adjudication. The Supreme Court, New York County, denied the provider's motion under CPLR 3211 (a) (2) and (7) to dismiss the insurer's challenge to the nerve-block award under Insurance Law § 5106 (c). Both treatments involved one patient, one provider, one day, and one operation. One arbitrator considered both claims at one hearing and decided them the same day for the same reasons; one master arbitrator likewise resolved both reviews. Although distinct awards cannot be aggregated, these decisions constituted a unified award. The court left unresolved whether the statutory threshold limits subject-matter jurisdiction or the cause of action.
Trial court, Second Department
Nov 18, 2020
2020 NY Slip Op 51406(U)
Provider prevailed
MVAIC's 30-day claim determination period begins on receipt of a claim, regardless of whether it has determined that the claimant is qualified. The Civil Court, Kings County, granted the provider summary judgment on all seven bills. Under Insurance Law § 5221 (b) (3) and former 11 NYCRR 65.15 (g) (3), MVAIC could not delay claim determination pending qualification. Its denials were untimely, and IMEs scheduled more than a year after receipt of the bills violated 11 NYCRR 65-3.5 (d). For the fourth bill, the provider's detailed manager affidavit and mailing log established submission without payment or denial. Interest on that bill accrued when it became due; interest on the other six accrued upon commencement. The provider also received attorney fees.
