Appellate Division, First Department
May 11, 2021
2021 NY Slip Op 03012
Insurer prevailed
A provider's failure to attend a timely requested EUO voids coverage for all claims, rather than only the bill prompting the request. The insurer timely requested an EUO concerning the provider's second claim, for shoulder surgery, and denied all of the provider's claims after the provider failed to appear. The Appellate Division, First Department, reversed the order insofar as appealed from, denied the provider's summary judgment motion and granted the insurer's cross motion. EUO nonappearance breached a condition precedent and voided the policy ab initio. The coverage defense applied to every claim and was not determined bill by bill.
Appellate Term, Second Department
May 28, 2021
2021 NY Slip Op 50879(U)
Insurer prevailed
The insurer's summary judgment motion was granted because the provider's affidavit failed to rebut the showing of lack of medical necessity. The Appellate Term, Second Department, affirmed dismissal of the assigned no-fault claims, rejecting the provider's sole appellate contention that its opposing affidavit was sufficient, without explaining the affidavit's deficiencies.
Appellate Term, Second Department
May 21, 2021
2021 NY Slip Op 50485(U)
Insurer prevailed
Proof of timely first-class mailing of EUO scheduling letters makes proof that copies were also sent by certified mail unnecessary. A prior order under CPLR 3212 (g) limited the nonjury trial to timely mailing of the EUO letters and denial forms. The insurer established timely first-class mailing of the letters, contrary to the trial court's conclusion that proof of certified mailing was also needed. The claims examiner's testimony established timely mailing of the denials despite the examiner's lack of direct supervisory authority over mail personnel. The Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to Civil Court, Kings County, for entry of judgment dismissing the complaint in favor of the insurer.
Appellate Term, Second Department
May 21, 2021
2021 NY Slip Op 50487(U)
Insurer prevailed
The provider's judgment for assigned no-fault benefits after a nonjury trial was reversed on appeal. The Appellate Term, Second Department, remitted the matter to Civil Court, Kings County, for entry of judgment dismissing the complaint in favor of the insurer. The court relied on the reasons stated in the companion appeal involving JCC Med. P.C., decided the same day, No. 2018-2503 K C.
Appellate Term, Second Department
May 21, 2021
2021 NY Slip Op 50491(U)
Insurer prevailed
Outdated denial forms are not fatally defective when they contain substantially the same pertinent information as the prescribed form. The provider challenged summary judgment dismissing its claims based on the assignor's failure to appear for duly scheduled IMEs. The insurer established that it mailed the denial forms in duplicate, and counsel's opposing affirmation raised no factual issue because counsel lacked demonstrated personal knowledge. Under 11 NYCRR 65-3.8 (c) (1) and (h), the forms' use of an outdated version did not invalidate them. The Appellate Term, Second Department, affirmed the insurer's summary judgment; the provider's remaining contention was unpreserved and, in any event, lacked merit.
Appellate Term, Second Department
May 21, 2021
2021 NY Slip Op 50486(U)
Insurer prevailed
The provider's judgment for assigned no-fault benefits after a nonjury trial was reversed on appeal. The Appellate Term, Second Department, remitted the matter to Civil Court, Kings County, for entry of judgment dismissing the complaint in favor of the insurer. The court relied on the reasons stated in the companion appeal involving JCC Med. P.C., decided the same day, No. 2018-2503 K C.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50441(U)
Split result
The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims. The insurer therefore failed to establish entitlement to summary judgment based on the provider's EUO nonappearance. Its remaining arguments supporting dismissal were raised for the first time on appeal and were not considered. The provider likewise failed to establish entitlement to summary judgment because its proof did not show untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and affirmed the denial of the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50440(U)
Split result
The provider's mailing affidavit raised a factual issue as to timely submission of the claims in its second through fifth causes of action. MVAIC established timely denials asserting submission beyond the 45-day limit under 11 NYCRR 65-2.4 (c), but the provider's affidavit created a presumption of timely mailing. The Appellate Term, Second Department, modified the order to deny dismissal of those causes of action. Dismissal of the first cause of action remained affirmed because MVAIC need not attach the medical records reviewed by its peer reviewer. Dismissal of the sixth remained affirmed because the provider's affidavit did not raise a triable issue. The denial of the provider's summary judgment cross motion also remained affirmed.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50445(U)
Split result
The insurer proved IME nonappearances and nonreceipt of one claim, but failed to establish its fee-schedule defense to a partially paid claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant dismissal of three claims based on the assignor's failure to attend duly scheduled IMEs and one claim the insurer never received. The scheduling company's affidavit established timely mailing of the IME notices, while the provider never established mailing of the unreceived claim. Dismissal remained denied for the unpaid portion of the partially paid claim because the fee schedule alone did not establish proper use of billing codes. The unopposed order compelling discovery remained undisturbed as to that claim.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50446(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims was affirmed based on timely mailing of EUO scheduling letters. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion. Rejecting the provider's sole contention concerning the insurer's motion, the court stated that timely mailing was established, citing 11 NYCRR 65-3.5 (a) and (d) and Appendix 13.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50450(U)
Insurer prevailed
MVAIC was entitled to dismissal, but conflicting proof of claim receipt required a hearing to determine whether dismissal would be with prejudice. MVAIC showed receipt in February 2012, timely verification requests, and no response, supporting dismissal as premature without prejudice. The provider's affidavit created a presumption of receipt following mailing in October 2010. If receipt preceded the first verification request by more than 30 days, those requests were untimely, but the action commenced in December 2015 was barred by the three-year limitations period, requiring dismissal with prejudice. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denying MVAIC's summary judgment motion and remitted for a hearing under CPLR 2218 on mailing and receipt to determine the dismissal ground.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50447(U)
Provider prevailed
MVAIC's 30-day period to deny a claim or request verification runs from receipt, regardless of whether it has determined covered-person status. MVAIC obtained summary judgment dismissing the provider's assigned no-fault benefits complaint on lack of medical necessity grounds. The Appellate Term, Second Department, reversed the order and denied MVAIC's motion. The court rejected MVAIC's contention that the period depended on its determination whether the assignor was a covered person under Insurance Law § 5221 (b) (2). MVAIC failed to establish that it was not precluded from asserting its medical necessity defense.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50439(U)
Insurer prevailed
The defendant established lack of coverage, and its out-of-state affidavit's missing certificate of conformity was not fatal. The claims examiner's affidavit established the coverage defense prima facie. Although the affidavit lacked a certificate of conformity required by CPLR 2309 (c) and Real Property Law § 299-a, the defect could be disregarded under CPLR 2001 if no substantial right was prejudiced. The provider showed neither prejudice nor a triable factual issue in opposition. The Appellate Term, Second Department, reversed the order, granted the defendant's motion for summary judgment dismissing the assigned no-fault benefits complaint, and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50434(U)
Split result
The defendant failed to prove mailing of the IME scheduling letters, defeating its summary judgment motion based on nonappearance. Its affidavit did not sufficiently describe an office practice ensuring that the letters were properly addressed and mailed. It therefore failed to establish that the assignor missed duly scheduled IMEs. The provider also failed to establish prima facie entitlement to summary judgment: its affidavit did not show that the claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the defendant's motion to dismiss the complaint and affirmed the denial of the provider's cross motion.
Appellate Term, First Department
May 14, 2021
2021 NY Slip Op 50429(U)
Provider prevailed
Untimely discovery objections limit appellate review to privilege or palpable impropriety of the demands. MVAIC failed to object to the provider's interrogatories and notice for discovery and inspection within the 20-day period prescribed by CPLR 3122 (a) and 3133 (a), ignoring them until the provider moved to compel compliance several months later. MVAIC did not argue below that the requested material was privileged under CPLR 3101 or that the demands were palpably improper. The Appellate Term, First Department, therefore affirmed the order, insofar as appealed from, granting the provider's motion to compel discovery in part.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50432(U)
Provider prevailed
The insurer's motion to vacate its default was denied for failure to show both a reasonable excuse and a meritorious defense. The Appellate Term, Second Department, reversed the order granting vacatur and compelling the provider to accept an untimely answer. The court applied CPLR 5015 (a) (1) and 3012 (d).
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50433(U)
Insurer prevailed
The insurer established prior payment of four claims and the provider's failure to attend duly scheduled EUOs for the remaining six claims. The claims manager's affidavit established payment, and the provider conceded that those four claims should be dismissed. For the remaining claims, the insurer's affidavit established timely mailing of denials through standard office practices. Its attorney's affirmation established timely mailing of EUO scheduling letters and the provider's nonappearance because the attorney was present to conduct the EUOs on the scheduled dates. The provider raised no triable issue. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the entire complaint.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50436(U)
Insurer prevailed
The insurer's summary judgment motion to dismiss the complaint for the assignor's failure to attend duly scheduled EUOs was granted on appeal. The Appellate Term, Second Department, reversed the order denying the motion. The court relied entirely on the reasons stated in Longevity Med. Supply, Inc. v Nationwide Ins.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50437(U)
Insurer prevailed
The insurer's cross motion for summary judgment dismissing the complaint was granted based on the assignor's failure to attend scheduled IMEs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Rejecting the provider's sole contention, the court stated that the insurer's proof sufficiently established nonappearance, relying on Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50438(U)
Insurer prevailed
The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims. Its affidavit established timely mailing of denial forms through standard office practices and procedures. Its attorney's affirmation established timely mailing of the scheduling letters and nonappearance because the attorney was present in the office to conduct the EUOs on the scheduled dates. The provider raised no triable factual issue in opposition. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50442(U)
Provider prevailed
The provider's billing-clerk affidavit raised a factual issue as to receipt of the claim despite the insurer's proof of nonreceipt. The insurer sought summary judgment dismissing the assigned no-fault claim, and its personal injury protection supervisor established prima facie that the claim had not been received. In opposition, the billing clerk's affidavit gave rise to a presumption that the claim form had been mailed to and received by the insurer. The insurer also failed to establish as a matter of law that the mailing address was not its address. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50443(U)
Split result
The insurer's affidavit failed to establish proper mailing of IME notices, and the provider failed to show entitlement to summary judgment. The insurer's affidavit did not sufficiently describe an office practice ensuring that scheduling letters were properly addressed and mailed. It therefore failed to establish duly scheduled IMEs or the assignor's nonappearance. The provider's affidavit also failed to establish either 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 insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving denial of the provider's motion in place.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50444(U)
Insurer prevailed
The provider's notice of trial and certificate of readiness were vacated because its interrogatory responses remained outstanding. The provider served those papers six days after the insurer served its answer and demand for written interrogatories. The insurer timely moved to vacate under 22 NYCRR 208.17 (c), disputing the representation that discovery was complete. It was undisputed that the provider had not answered the interrogatories. Because the certificate erroneously stated that discovery was complete or waived, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion.
Appellate Term, Second Department
May 14, 2021
2021 NY Slip Op 50448(U)
Insurer prevailed
The insurer's witness credibly established that requested verification remained outstanding, supporting dismissal after a nonjury trial. The trial was limited to whether the requested verification remained outstanding, and the insurer's witness was the only witness to testify. The Appellate Term, Second Department, affirmed the judgment dismissing the provider's complaint. Although its review of a nonjury determination was as broad as the trial court's power, it gave substantial deference to the trial court's credibility assessment because that court observed the witness's testimony and demeanor. The record supported the finding, providing no basis to disturb the insurer's judgment.
Trial court, First Department
May 28, 2021
2021 NY Slip Op 50506(U)
Insurer prevailed
An assignor's failure to appear twice for timely and properly scheduled IMEs voids the policy from inception for all claims. The Supreme Court, New York County, granted the insurer summary judgment declaring no liability for no-fault benefits to five provider assignees, two on default and three over opposition. Affidavits and supporting records established timely requests, timely scheduling, and two nonappearances under 11 NYCRR 65-3.5 (b) and (d). Following Unitrin Direct Ins. Co. v Beckles, the insurer needed to show a request within 15 business days of a provider claim, rather than the first bill from any provider. Under Unitrin Advantage Ins. Co. v Dowd, the coverage defense applied to all claims, and the assignees had no greater rights than the assignor.
Trial court, Second Department
May 27, 2021
2021 NY Slip Op 21148
Insurer prevailed
The examiners' affidavits established IME nonappearance despite being sworn over three years later without explaining the basis of recollection. Each chiropractor attested to personal knowledge, presence in the office, and the assignor's failure to appear or contact the office to cancel or reschedule. The provider offered no evidence undermining that knowledge, identifying other infirmities, or showing attendance or an attempted appearance. The Civil Court, Queens County, declined to treat the affidavits as conclusory merely because they lacked a stated basis of recollection, recognizing contrary Appellate Term, First Department, authority. The insurer also proved timely mailing of IME notices and denials, satisfying Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The court granted summary judgment under CPLR 3212 (b), dismissing the complaint.
Trial court, Second Department
May 26, 2021
2021 NY Slip Op 50498(U)
The insurer's summary judgment motion failed on hearsay proof of good cause and verification notices naming a different provider. The Civil Court, Queens County, denied both sides' summary judgment motions. The investigator quoted EUO testimony and an affirmation without supplying either, leaving no admissible proof of good cause to investigate licensing compliance under Mallela. Notices naming another provider failed to warn this provider of the consequences of noncompliance under 11 NYCRR 65-3.5 (o) and 65-3.8 (b) (3). The provider's cross motion was denied under CPLR 3212 (f): outstanding tax returns and financial records within its exclusive control raised factual issues about reimbursement eligibility. The licensing defense was not precluded by untimely denials.
Trial court, Second Department
May 3, 2021
2020 NY Slip Op 51612(U)
Provider prevailed
MVAIC failed to prove the assignor's ineligibility at trial because the EUO transcript was inadmissible hearsay. The provider sought benefits in three actions joined for trial, and the parties stipulated to its prima facie case. MVAIC argued that the assignor's possession of an uninsured vehicle for more than 30 days made the assignor a de facto owner and thus unqualified under Insurance Law § 5202 (b) (1). The Civil Court, Kings County, rejected the transcript as an admission against the provider under the doctrine excluding assignor declarations against an assignee. MVAIC also failed to establish witness unavailability under CPLR 3117 (a) (3) (iv). With no admissible proof of disqualification, the court directed judgment for the provider in all three actions.
