Appellate Term, Second Department
Sep 17, 2021
2021 NY Slip Op 50887(U)
Split result
A dissolved provider corporation was entitled to substitute counsel before findings on winding up and party substitution were made. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant substitution of counsel in ten actions against one insurer. Under CPLR 321 (a), the corporation could not act or present arguments without an attorney, and choice of counsel was a substantive right. Findings that the provider was no longer winding up, needed timely substitution, and lacked standing were premature and were vacated. The denial of relief in the remaining action against another insurer, based on failure to prove service, was left undisturbed because the provider made no appellate argument that the action was improperly dismissed.
Appellate Term, Second Department
Sep 9, 2021
2021 NY Slip Op 50881(U)
The provider raised a factual issue over mailing of denials, and the insurer failed to prove its EUO and IME nonappearance defenses. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's summary judgment motion as to the appealing provider's claims, while leaving denial of that provider's cross motion intact. Although the insurer initially demonstrated mailing of the denials, the provider's owner's affidavit raised a factual issue whether they were mailed to the provider. The insurer also failed to establish timely and proper mailing of EUO scheduling letters and the assignor's failure to appear for scheduled IMEs. Neither party was entitled to summary judgment on the appealing provider's claims.
Trial court, First Department
Sep 23, 2021
2021 NY Slip Op 21253
Provider prevailed
An insurer must provide specific objective justification for an EUO when the claimant requests it during claims verification. Under 11 NYCRR 65-1.1 and 65-3.5 (e), the insurer's categorical refusal made its rescheduled EUO request unreasonable, so the provider's nonappearance did not support denial. Describing the information sought did not explain why verification was needed. The required explanation need not be extensive or disclose internal standards. The Supreme Court, New York County, denied the insurer's CPLR 3212 motion for a declaration of no coverage. It declined to grant the provider summary judgment under CPLR 3212 (b), leaving open a possible alternative lack-of-causation ground because the record lacked a denial form clarifying the insurer's position.
Trial court, Second Department
Sep 23, 2021
2021 NY Slip Op 50945(U)
The insurer's IME no-show defense failed because the examinations were not timely scheduled under 11 NYCRR 65-3.5 (d). The District Court, Suffolk County, denied both the insurer's summary judgment motion and the provider's cross motion. Although mailing and nonappearance were established, the insurer failed to show that the IMEs complied with the 30-day requirement or that verification requests tolled that period. The provider's reliance on denial forms was insufficient without claim forms and a billing manager's affidavit establishing personal knowledge of their issuance. Prior judgments involving other providers and the same assignor did not establish res judicata without proof of privity and the same transaction. The court expressly made no ruling on other IMEs, fee schedule objections, or allegedly inaccurate insurance information.
Trial court, Second Department
Sep 17, 2021
2021 NY Slip Op 50895(U)
Insurer prevailed
The insurer established lack of medical necessity, and the provider's conclusory expert affidavit failed to raise a triable issue. The Civil Court, Queens County, granted the insurer's summary judgment motions under CPLR 3212 (b) and dismissed both actions for assigned no-fault benefits. The insurer's sworn report reviewed medical records and described an IME showing normal ranges of motion, no other abnormalities, and normal findings under traditional Chinese medicine. The treating acupuncturist asserted continuing symptoms and a need for further treatment but did not meaningfully discuss the insurer's report. The assertion that treatment notes contradicted that report was conclusory, and the notes were not submitted. The opposing affidavit lacked the underlying facts and scientific basis needed to rebut the insurer's showing.
Trial court, Second Department
Sep 16, 2021
2021 NY Slip Op 50869(U)
Insurer prevailed
Three provider claims were barred by a declaratory judgment, and the insurer proved fee schedule payment of the fourth. The Supreme Court, Nassau County, had declared no obligation to pay listed claims after the provider failed to attend an inquest concerning EUO nonappearance. Those listed claims included three claims in this action, which were barred by res judicata. For the remaining claim, a certified coder's affidavit established that the provider used an incorrect billing code, and payment records showed payment of the allowed amount. Applying Insurance Law § 5108 (a) and 11 NYCRR 65-3.8 (g) (1) (ii), the Civil Court, Queens County, granted the insurer's unopposed summary judgment motion and dismissed the entire complaint.
Trial court, Second Department
Sep 15, 2021
2021 NY Slip Op 50860(U)
The insurer failed to prove late accident notice, and the provider failed to establish entitlement to payment with admissible evidence. The Civil Court, Queens County, denied both summary judgment motions under CPLR 3212 (b). The insurer's supervisor relied on file review without personal knowledge, failed to authenticate MVAIC correspondence, and gave a vague hearsay account of a telephone communication with MVAIC. This did not establish failure to give accident notice within 30 days under 11 NYCRR 65-1.1 (d). The provider's biller likewise offered hearsay based on record review. Submission of a claim within 45 days of providing prescriptions would not establish timely accident notice. The insurer's denial form showed denial 12 days after receipt, so it did not establish overdue payment.
Trial court, Second Department
Sep 8, 2021
2021 NY Slip Op 50851(U)
Insurer prevailed
The provider's action was barred by an unvacated default declaratory judgment establishing that the insurer owed no no-fault benefits. The Civil Court, Queens County, granted the insurer's unopposed summary judgment motion and dismissed the complaint on res judicata grounds. In an action naming the provider and assignor, Supreme Court had declared that the insurer need not pay current or future claims under the policy because of the assignor's EUO nonappearance. The parties and subject matter were identical, and a recovery would adversely affect rights established by that judgment. The default judgment remained a conclusive final determination because the provider's default had not been vacated.
