Appellate Division, First Department
Mar 17, 2022
2022 NY Slip Op 01871
Provider prevailed
The insurer failed to prove timely IME requests because its papers did not establish when it received the providers' verification forms. The Appellate Division, First Department, reversed summary judgment declaring the policy void ab initio and denying the providers no-fault benefits, denied the insurer's motion, and remanded. Without the receipt dates, the court could not determine compliance with the 15-business-day and 30-calendar-day time frames under 11 NYCRR 65-3.5 (b) and (d). The insurer therefore failed to establish entitlement to judgment based on the insured's IME nonappearance.
Appellate Division, First Department
Mar 17, 2022
2022 NY Slip Op 01890
Split result
The insurer established EUO nonappearance and a founded belief of noncovered injuries, but defective service limited default relief. The Appellate Division, First Department, modified the order to declare no duty to pay the defaulting providers and one claimant, otherwise affirming denial of relief against the remaining defendants. EUO notices were timely under 11 NYCRR 65-3.5 (b), measured from receipt of NF-3 forms rather than NF-2 applications; mailing proof and transcripts established nonappearance. Supporting affidavits also established a founded belief that the injuries did not arise from the insured accident. Three claimants' service affidavits omitted attempted-service times required by CPLR 306 (c). The reargument appeal was dismissed as abandoned and nonappealable.
Appellate Term, Second Department
Mar 18, 2022
2022 NY Slip Op 50288(U)
Insurer prevailed
The provider's summary judgment motion was properly denied for defective papers despite the power to disregard procedural irregularities. The provider submitted an undated notice of motion and an undated supporting affirmation in its action for assigned no-fault benefits. The Civil Court denied both that motion and the insurer's cross motion to dismiss for defective papers, and the provider appealed only the denial of its motion. Applying CPLR 2001, the Appellate Term, Second Department, found no improvident exercise of discretion, particularly because both sides' motions were denied on that basis, and affirmed the order, insofar as appealed from. A dissent favored remittal to identify the defect and determine whether it prejudiced a substantial right.
Trial court, Second Department
Mar 22, 2022
2022 NY Slip Op 22089
Insurer prevailed
A provider cannot withhold MRI films requested for verification pending advance payment of the $5 reproduction fee. The insurer timely requested copies of the films, but the provider demanded payment under ground rule 8 of the Workers' Compensation Fee Schedule before supplying them. Relying on a State Insurance Department counsel opinion, the court explained that original films carry no charge, while reproductions require payment at the fee schedule rate after receipt. Nonpayment in advance did not justify withholding verification. Under 11 NYCRR 65-3.5 and 65-3.8 (a), the outstanding verification extended the payment deadline. The Civil Court, Richmond County, granted the insurer summary judgment dismissing the action without prejudice as premature and denied the provider's cross motion without prejudice as moot.
Trial court, First Department
Mar 22, 2022
2022 NY Slip Op 50218(U)
Provider prevailed
The insurer failed to establish timely IME scheduling because it did not supply the answering providers' NF-3 verification forms. The Supreme Court, New York County, denied summary judgment seeking a declaration of no coverage against the remaining answering providers based on the assignor's two IME nonappearances. Under 11 NYCRR 65-3.5 (b) and (d), an IME requested as additional verification after receipt of an NF-3 form must be requested within 15 business days and scheduled within 30 calendar days of receipt. Without the forms, the insurer could not establish compliance. It did not contend that it requested the IME before receiving any NF-3 forms, when those deadlines would not apply.
Trial court, First Department
Mar 8, 2022
2022 NY Slip Op 50180(U)
Provider prevailed
The insurer failed to prove timely IME requests and follow-up or the assignor's nonappearance with competent evidence. The Supreme Court, New York County, denied default judgment under CPLR 3215 and summary judgment under CPLR 3212. Missing NF-3 forms prevented proof of compliance with 11 NYCRR 65-3.5 (b) and (d); the follow-up letter came 21 days after nonappearance, exceeding 11 NYCRR 65-3.6 (b)'s 10-day limit. The physician's nonappearance affidavit was unsigned. These defects exceeded those excusable under 11 NYCRR 65-3.5 (p). Outstanding discovery also rendered summary judgment premature under CPLR 3212 (f). The court required discovery responses within 30 days of entry and a renewed motion within 60 days of entry, failing which the action would be administratively dismissed.
Trial court, Second Department
Mar 1, 2022
2022 NY Slip Op 50170(U)
Provider prevailed
The insurer failed to establish that it insured neither vehicle involved in the collision because its coverage proof was insufficient. The Civil Court, Queens County, denied without prejudice its unopposed motion for summary judgment dismissing the provider's no-fault action under CPLR 3212 (b). The police accident report was uncertified and unsupported by sworn testimony or an affidavit from a witness with personal knowledge. Even if considered, its insurance codes did not independently identify the carriers. The claims representative supplied no basis for identifying those carriers or excluding the defendant. The representative's denial of receipt of the claim concerned another carrier's claims and did not establish the defendant's nonliability.
