Appellate Division, Second Department
Apr 13, 2022
2022 NY Slip Op 02406
Provider prevailed
An initial EUO request sent more than 30 days after receipt of a claim is a nullity, unexcused by 11 NYCRR 65-3.5 (p). The Appellate Division, Second Department, reversed denial of the provider's CPLR article 75 petition, vacated the master arbitrator's award, and remitted for further proceedings. The master arbitrator had vacated an award for the provider by treating EUO nonappearance as a coverage defense immune from preclusion. That determination was irrational, as was applying 11 NYCRR 65-3.5 (p) to evade the timeliness requirements of 11 NYCRR 65-3.8 (a). Although mere legal error does not warrant vacatur, the award lacked a rational basis.
Appellate Division, First Department
Apr 12, 2022
2022 NY Slip Op 02356
Provider prevailed
The insurer failed to establish timely IME scheduling because it supplied no evidence of when it received the providers' claims. The Appellate Division, First Department, reversed the order and judgment declaring that two providers were not entitled to no-fault benefits and vacated the judgment. Without evidence of claim receipt, the insurer could not make a prima facie showing that it scheduled the assignor's IME within the prescribed time frames under 11 NYCRR 65-3.5 (b) and (d).
Appellate Division, Second Department
Apr 6, 2022
2022 NY Slip Op 02252
Split result
The insurer proved fee-schedule overbilling but failed to support its medical-necessity defense with a factual basis and medical rationale. The Appellate Division, Second Department, modified the order to grant summary judgment dismissing the first cause of action above $1,724.22 and the third above $12,924.78, otherwise affirming denial of dismissal. The peer reviews offered only conclusory opinions that the injuries were degenerative and chronic and conservative treatment would suffice. The insurer's expert nevertheless established the reimbursement limits under Insurance Law § 5108 (a) and (c) and 11 NYCRR 68.6 (a) (1), and the provider raised no triable issue on those limits.
Appellate Term, Second Department
Apr 29, 2022
2022 NY Slip Op 50362(U)
Split result
The insurer's summary judgment motion based on the assignor's EUO nonappearance was denied on appeal. For the reasons stated in the companion appeal involving Pavlova and the insurer, decided the same day, No. 2020-537 K C, the Appellate Term, Second Department, modified the order, otherwise affirming the denial of the provider's cross motion as untimely.
Appellate Term, Second Department
Apr 29, 2022
2022 NY Slip Op 50363(U)
Split result
The insurer failed to establish a timely denial after the assignor's alleged failure to appear for an initial and a follow-up EUO. It therefore did not demonstrate that its EUO defense was free from preclusion, and summary judgment dismissing the complaint should have been denied. The provider's cross motion remained denied as untimely under the parties' stipulated schedule. The provider neither argued that the cross motion was timely nor offered a reasonable excuse for failing to cross-move during the more than eight months available. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed.
Appellate Term, Second Department
Apr 29, 2022
2022 NY Slip Op 50361(U)
Split result
The provider's affidavit raised a factual issue whether requested verification had been mailed to and received by the insurer. The insurer had shown timely initial and follow-up requests, nonreceipt of verification, and timely denials under 11 NYCRR 65-3.5 (o), but the opposing affidavit defeated summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from and reviewed, and denied dismissal of the first through fourth causes of action. It dismissed the appeal from the implicit denial of the provider's untimely cross motion under CPLR 5511 because the provider had consented to its acceptance only as opposition to the insurer's motion.
Appellate Term, Second Department
Apr 28, 2022
2022 NY Slip Op 50359(U)
Insurer prevailed
An insurer need not set forth objective reasons for requesting EUOs to establish prima facie entitlement to summary judgment. The District Court, Suffolk County, had found, in effect under CPLR 3212 (g), timely and proper mailing of the scheduling letters and denial form, together with the provider's nonappearance, but left the reasonableness of the requests for trial. The provider did not contest the insurer's prima facie showing and argued only that the requests lacked objective grounds. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, rejected that argument, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 28, 2022
2022 NY Slip Op 50356(U)
Insurer prevailed
The provider failed to establish an earlier interest accrual date, and interest was properly tolled for unreasonable delay. Following an inquest, the District Court, Nassau County, awarded benefits with interest from the filing of the notice of trial. The provider's attorney's assertion that the claim was never timely denied contradicted the written arbitration award and did not establish accrual before suit under 11 NYCRR 65-3.9 (c). Although an unpaid, never-denied claim bears interest from 30 days after submission under Insurance Law § 5106 (a), that predicate was unproved. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, sustaining tolling under 11 NYCRR 65-3.9 (d) based on the implicit finding of unreasonable delay.
Appellate Term, Second Department
Apr 22, 2022
2022 NY Slip Op 50376(U)
Provider prevailed
The provider's claims submitted in 2001 were governed by former no-fault regulations requiring compound interest. A settlement judgment calculated interest at the simple rate under 11 NYCRR 65-3.9 (a), and the provider moved under CPLR 5019 (a) to apply former 11 NYCRR 65.15 (h) (1). The missing settlement stipulation did not justify denial: the insurer disputed neither the settlement nor its terms, and the stipulation was unnecessary under the circumstances to establish entitlement to compound interest under 11 NYCRR 65-3.9 (b). The insurer also failed to show that the provider prevented payment. The Appellate Term, Second Department, reversed the order and granted recalculation at a compound rate.
Appellate Term, Second Department
Apr 22, 2022
2022 NY Slip Op 50375(U)
Provider prevailed
The insurer failed to support forum non conveniens dismissal with admissible accident-location evidence or proof of hardship. Its New Jersey police report was inadmissible hearsay because it was not certified as a business record under CPLR 4518 (a), and its NF-2 application was first submitted in reply. The provider was a New York corporation, the insurer had New York offices, and no witness hardship or burden on New York courts was shown under CPLR 327 (a). The Appellate Term, Second Department, reversed and denied forum non conveniens dismissal, remitting for determination of the insurer's alternative limitations defense and the provider's summary judgment cross motion, whose merits remained undecided.
Appellate Term, First Department
Apr 19, 2022
2022 NY Slip Op 50277(U)
Insurer prevailed
An arbitration award directing payment beyond exhausted no-fault policy limits exceeds the arbitrator's power. The Appellate Term, First Department, affirmed vacatur of the master arbitrator's award and denial of the provider's cross motion to confirm. At a framed issue hearing, the insurer's adjuster testimony, policy declarations and payment ledgers established exhaustion before its obligation to pay this claim arose. Exhaustion remained available despite failure to deny within 30 days. Under 11 NYCRR 65-3.15, the insurer could pay other legitimate claims after denying this disputed claim. The provider's argument that those claims were not verified was unpreserved, and its prior admission that the assignor was a pedestrian defeated its assertion that pedestrian status was unproved for additional personal injury protection coverage.
Appellate Term, Second Department
Apr 1, 2022
2022 NY Slip Op 50304(U)
Provider prevailed
The insurer failed to prove that the dissolved provider lacked capacity to enter judgment while winding up its affairs. Business Corporation Law §§ 1005 and 1006 governed over inconsistent substitution requirements in CPLR 1017 and 1021 under CPLR 101. The insurer did not show that collecting the unpaid settlement fell outside winding up or that the nearly 14-year interval before judgment was unreasonable. It also supplied no knowledgeable affidavit proving failure to tender a release and discontinuance under CPLR 5003-a (a). Vacatur under CPLR 5015 (a) (4) was improper because jurisdiction existed. The Appellate Term, Second Department, reversed, denied vacatur and dismissal, and remitted for determination of the provider's pending interest-recalculation motion.
Appellate Term, Second Department
Apr 1, 2022
2022 NY Slip Op 50300(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance because counsel's recorded statements were inadmissible hearsay. A stipulated nonjury trial addressed only whether the provider appeared for EUOs. The insurer relied exclusively on transcripts of counsel's statements recording nonappearances. The transcripts lacked a sufficient foundation under CPLR 4518 (a): they recorded uttered words, and the insurer did not establish a regular business practice of making transcripts as records of nonappearances. No ground for admitting deposition testimony under CPLR 3117 (a) (3) was shown; the court left open whether that provision extends to EUO transcripts. The Appellate Term, Second Department, reversed the dismissal and remitted for judgment for the provider after calculation of statutory no-fault interest and assessment of attorney's fees.
Appellate Term, Second Department
Apr 1, 2022
2022 NY Slip Op 50298(U)
Insurer prevailed
A prior no-coverage declaratory judgment retains its binding effect even if notice of entry is served after a provider's default judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the provider's default judgment, and dismissed the complaint on res judicata grounds. The Supreme Court, New York County, had previously declared that the defendant owed the provider no benefits for the collision. That declaration supplied a meritorious defense, and law office failure provided a reasonable excuse under CPLR 2005. The later service of notice of entry did not defeat preclusion, because recovery in the benefits action would impair rights established by the declaratory judgment.
Appellate Term, Second Department
Apr 1, 2022
2022 NY Slip Op 50299(U)
Insurer prevailed
The insurer established proper mailing of the assignor's EUO notices to the address on the provider's NF-3 forms. The Civil Court denied summary judgment because that address differed from the address on the assignment of benefits form. The Appellate Term, Second Department, found that using the NF-3 address established proper mailing prima facie, following Compas Med., P.C. v American Tr. Ins. Co. and Sunlight Med. Care, P.C. v Esurance Ins. Co. The insurer also established timely scheduling letters, nonappearance at both EUOs and timely denials on that ground. The provider failed to rebut the showing. The order was reversed and summary judgment dismissing the complaint was granted to the insurer.
Appellate Term, Second Department
Apr 1, 2022
2022 NY Slip Op 50302(U)
Insurer prevailed
The insurer proved the assignor's EUO nonappearance through an investigator's affidavit and certified transcripts. The provider appealed from an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits, challenging only the proof of nonappearance. The affidavit of the special investigator scheduled to conduct the EUOs, accompanied by certified transcripts, established that the assignor failed to appear at either scheduled EUO. This demonstrated noncompliance with a condition precedent to coverage under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order in the insurer's favor.
Trial court, Second Department
Apr 20, 2022
2022 NY Slip Op 50316(U)
Insurer prevailed
The insurer established timely denials, proper fee-schedule reductions and lack of medical necessity for post-IME treatment. The Civil Court, Kings County, granted the insurer's cross motion under CPLR 3212 (b), denied the provider's motion and dismissed the action with prejudice. The claims associate's affidavit established timely mailing under 11 NYCRR 65-3.8 (c). The insurer explained reductions under the Workers' Compensation Fee Schedule's daily limits, including prior payments to another provider for the same dates. The provider's rebuttal addressed different billing codes and did not challenge those calculations. Detailed IME reports established that further treatment was unnecessary; the provider's conclusory affidavit neither described the assignor's post-IME condition nor identified necessary treatments, leaving that defense unrebutted.
Trial court, Second Department
Apr 6, 2022
2022 NY Slip Op 50250(U)
Provider prevailed
The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule. The Civil Court, Kings County, denied summary judgment dismissing claims for unpaid cupping charges under Insurance Law § 5108 (a). The coder could rely on CPT Assistant, but the insurer did not establish that the AMA CPT Knowledge Base justified changing CPT 97799 to 97039. Under 11 NYCRR 68.5 (b), similar procedures could guide reimbursement, but WebMD material lacked demonstrated professional reliability, and the insurer's own submission undermined comparison with CPT 97016. The court agreed that CPT 97039 permits only one unit per service date, while expressly leaving open whether multiple cupping units were billable because the proper code remained unresolved.
