Appellate Division, First Department
Feb 17, 2022
2022 NY Slip Op 01097
Provider prevailed
The insurer failed to establish compliance with IME scheduling deadlines, defeating summary judgment based on nonappearance. The Appellate Division, First Department, reversed summary judgment declaring no duty to pay three providers and denied the insurer's motion. Although nonappearance at a properly requested IME breaches a coverage condition under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the record did not establish compliance with the request and scheduling time frames in 11 NYCRR 65-3.5 (b) and (d). A separate concurrence favored treating nonappearance as breach of a policy term rather than a condition permitting coverage to be voided ab initio.
Appellate Division, First Department
Feb 15, 2022
2022 NY Slip Op 00963
Provider prevailed
The insurer failed in both actions to establish timely IME requests and scheduling, defeating its nonappearance-based motions. The Appellate Division, First Department, reversed both orders granting summary judgment declaring no duty to pay the appealing providers and denied both motions. Under 11 NYCRR 65-3.5 (b) and (d), the insurer had to establish compliance with the applicable request and scheduling time frames as well as nonappearance. Neither record permitted the court to determine whether the insurer complied. The rule that nonappearance at a properly scheduled IME vitiates coverage ab initio did not relieve the insurer of that proof requirement.
Appellate Term, First Department
Feb 22, 2022
2022 NY Slip Op 50113(U)
Insurer prevailed
MVAIC established that no timely notice of intention to claim had been filed, leaving a statutory coverage condition unsatisfied. The Appellate Term, First Department, reversed the order, granted MVAIC summary judgment and dismissed the provider's complaint. Insurance Law § 5208 (a) makes timely notice a condition precedent to applying for no-fault payment from MVAIC, and the provider raised no triable factual issue. MVAIC's prior denial on other grounds did not preclude its lack-of-coverage defense. The court distinguished Matter of State Farm Ins. Co. v Domotor, which concerned waiver of a policy condition precedent to payment, rather than a statutory condition precedent to coverage.
Appellate Term, Second Department
Feb 18, 2022
2022 NY Slip Op 50141(U)
Insurer prevailed
The provider's action was time-barred because it was commenced more than six years after payment became due on its claims. The provider's owner stated that the claims had been submitted on or before December 2, 2005, remained unpaid, and accrued interest beginning 30 days after submission. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, payment was therefore deemed due in January 2006. The action was not commenced until 2017, after the contract limitations period under CPLR 213 (2) expired. With no factual issue raised as to timeliness, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 4, 2022
2022 NY Slip Op 50135(U)
Provider prevailed
Postjudgment interest on no-fault benefits accrues at 2% per month, compounded when former 11 NYCRR 65.15 (h) applies. MVAIC sought entry of a satisfaction of a default judgment, or an order compelling the provider to file one, after tendering payment with postjudgment interest calculated at 9% annually under CPLR 5004. The provider rejected the tender as insufficient. Following Matter of B.Z. Chiropractic, P.C. v Allstate Ins. Co., the Appellate Term, Second Department, affirmed denial of MVAIC's motion under CPLR 5021 (a) (2). Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) superseded CPLR 5004, and the former regulation governed the underlying accident.
Trial court, First Department
Feb 9, 2022
2022 NY Slip Op 22061
Insurer prevailed
MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply. The Civil Court, New York County, granted MVAIC summary judgment dismissing the complaint and denied the provider's cross motion. Under Insurance Law § 5108 (a), a trained claims representative's affidavit and the annexed fee schedule established the applicable relative value units, conversion factor and payments. Certification as a fee coder was unnecessary. The provider identified no arithmetic or unit error and supplied no history of consistent reimbursement at physician rates, distinguishing Global Liberty Ins. Co. of N.Y. v Acupuncture Now, P.C. That decision did not permit the acupuncturist to choose the schedule. An agency impact statement supporting a never-adopted regulation was not dispositive or entitled to deference.
