Appellate Division, Second Department
Jun 29, 2022
2022 NY Slip Op 04156
Provider prevailed
The injured claimant proved overdue surgical claims, and the insurer offered no admissible evidence supporting its medical-necessity denial. The Appellate Division, Second Department, affirmed summary judgment for the claimant, who underwent lumbar disc replacement after a collision. The submitted claims, denials, and affidavits established mailing, receipt, and failure to pay or validly deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer raised no triable issue under 11 NYCRR 65-3.8 (b) (4), and the claimant had standing. Because unpaid surgeon benefits exceeded the judgment, the court did not reach entitlement to hospital benefits.
Appellate Division, First Department
Jun 28, 2022
2022 NY Slip Op 04142
Insurer prevailed
The 15-business-day period for requesting EUOs runs from receipt of verification forms, rather than the NF-2 application. The insurer established that the assignors failed to attend properly noticed EUOs, breaching a coverage condition and voiding the policy ab initio. Under 11 NYCRR 65-3.5 (a) and (b), the scheduling notices were timely. The Appellate Division, First Department, reversed the denial of a default judgment and declared noncoverage against all defaulting defendants. The insurer also established viable noncoverage claims based on an intentional or staged crash and the named insured's failure to cooperate; its submissions satisfied CPLR 3215 (f).
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50603(U)
Insurer prevailed
The insurer established full payment for the disputed acupuncture services under the workers' compensation fee schedule applicable to chiropractors. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and, upon reargument, granted the insurer summary judgment dismissing the complaint. The claims sought the difference between the provider's charges and the payments already made. The insurer demonstrated that those payments satisfied the applicable schedule, establishing prima facie entitlement to dismissal. Following S.O.V. Acupuncture, P.C. v Global Liberty Ins. Co. of NY, the court found that the provider's opposition raised no triable issue.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50598(U)
Provider prevailed
The insurer's letters stating that it awaited documents did not establish proper verification requests to the provider. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion, which sought dismissal on the ground that the action was premature because verification remained outstanding. The letters submitted in support merely stated that the insurer was waiting for specified documents; they did not actually request verification from the provider. Following Clear Water Psychological Servs., P.C. v Hereford Ins. Co., the court found the insurer's prima facie showing deficient and did not reach its other appellate arguments.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50606(U)
Insurer prevailed
An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the provider's complaint. The scheduling company's director of operations established timely mailing of IME notices, and the insurer also established the assignor's nonappearances and timely denial. Those nonappearances constituted failure to comply with a condition precedent to coverage. The provider raised no triable issue. Contrary to the Civil Court's determination, the regulation's follow-up obligations did not apply because the IMEs were scheduled before receipt of the claim.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50596(U)
Provider prevailed
A discrepancy between the insurer's affidavit and mailing logs raised a factual issue about proper mailing of its claim denials. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment dismissing the provider's complaint. The conflicting submissions left unresolved whether the denial forms were mailed pursuant to a standard office practice or procedure sufficient to create a presumption that they were properly addressed and mailed. The insurer therefore failed to establish entitlement to summary judgment, and the court reached no other issue.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50599(U)
Insurer prevailed
The provider's action was premature because it failed to respond to the insurer's timely and proper verification requests. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint. The insurer established that verification requests were timely sent under 11 NYCRR 65-3.8 (l) and that it had received no response. The follow-up requests were proper under 11 NYCRR 65-3.6 (b). Following Westchester County Med. Ctr. v NY Cent. Mut. Fire Ins. Co., the court explained that any confusion about the information sought required further communication rather than inaction.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50604(U)
Insurer prevailed
EUO attendance is required whether the insurer demands the EUO before or after submission of the claim form. The Appellate Term, Second Department, affirmed the order denying the provider summary judgment and granting the insurer's cross motion dismissing the complaint. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the court rejected the provider's contention concerning the timing of the EUO demand relative to claim submission. It also found that the insurer established timely and proper mailing of the EUO scheduling letters. The provider's remaining arguments were either raised for the first time on appeal and not considered, or moot.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50605(U)
Insurer prevailed
The provider failed to justify its late claim submission because the form sent to the wrong insurer bore the defendant insurer's name and address. The Appellate Term, Second Department, reversed the order, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion. Submission within 45 days after services was required under 11 NYCRR 65-1.1. The insurer timely denied the late claim and offered to excuse the delay upon reasonable justification under 11 NYCRR 65-3.3 (e). The provider initially sent the form to another insurer and submitted it to the defendant approximately a year later after discovering incorrect coverage information. It did not reasonably justify the initial misdirection despite the form's correct insurer information.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50607(U)
Insurer prevailed
The insurer established timely EUO notices, the provider's nonappearances and timely denials, and the provider failed to rebut that showing. The Appellate Term, Second Department, reversed the order denying the insurer summary judgment and granting the provider judgment upon a search of the record. The insurer's proof demonstrated timely mailing of the initial and follow-up EUO scheduling letters, the provider's failure to appear on both dates, and timely denial of the claims on that ground. The provider's opposition did not rebut the prima facie showing, requiring summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50608(U)
Split result
The insurer failed to prove the assignor's EUO nonappearances through personal knowledge or to establish timely denial after the alleged failures. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion while affirming denial of the provider's cross motion. Although the insurer established timely mailing of EUO scheduling letters, it supplied no proof of nonappearance from someone with personal knowledge. Its papers also failed to establish timely denial after two alleged nonappearances. The provider independently failed to establish that the insurer had not denied the claim within 30 days or that the denials were conclusory, vague or without merit as a matter of law. Neither party obtained summary judgment.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50609(U)
Insurer prevailed
The insurer's fee-schedule summary judgment on claims under CPT codes 97810 and 97811 was upheld on reargument and appeal. The provider's summary judgment motion remained denied. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., No. 2019-1418 K C.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50610(U)
Insurer prevailed
The provider's affidavit failed to rebut the insurer's prima facie showing that the disputed services lacked medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment on the medical-necessity claims and claims billed under CPT codes 97810 and 97811, and denying the provider's summary judgment request. The opposing affidavit did not meaningfully address the insurer's medical-necessity showing and raised no triable issue. The fee-schedule dismissal rested on payment under the chiropractic acupuncture schedule, for the reasons stated in the companion appeal decided the same day, Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., No. 2019-1418 K C.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50611(U)
Insurer prevailed
The insurer's summary judgment motion was granted on its lack-of-coverage defense, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed because the insurer's affidavit and documentary evidence established that defense prima facie and the provider raised no triable issue.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50612(U)
Insurer prevailed
The insurer's fee-schedule summary judgment dismissing acupuncture claims under CPT codes 97810 and 97811 was affirmed. The Appellate Term, Second Department, also upheld denial of the provider's cross motion, for the reasons stated in the companion appeal decided the same day, Mind & Body Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., No. 2019-1418 K C.
Appellate Term, Second Department
Jun 17, 2022
2022 NY Slip Op 50613(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters to the assignor's proper address and nonappearance on both scheduled dates. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. The insurer's standard office practices and procedures established timely and proper mailing of the initial and follow-up letters. The assignor's sworn statement confirmed the address used, and neither the provider nor the assignor disputed receipt. The insurer also established that the assignor failed to appear on either date and that the claims were timely denied on that ground.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50568(U)
Insurer prevailed
A timely notice-of-intention affidavit is a condition precedent to recovering no-fault benefits from MVAIC. Under Insurance Law § 5208 (a) (1) and (3) and Insurance Law § 5221 (b) (2), compliance with the filing requirement must be established to show that the claimant is a covered person entitled to benefits. MVAIC established that it had not received the affidavit, and the provider did not establish that one had been submitted. The Appellate Term, Second Department, reversed the denial of MVAIC's motion and granted summary judgment dismissing the provider's assigned-benefits complaint.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50593(U)
Insurer prevailed
MVAIC established nonreceipt of the notice-of-intention affidavit required for the provider to recover assigned no-fault benefits. Under Insurance Law § 5208 (a) (1) and (3) and Insurance Law § 5221 (b) (2), timely filing is a condition precedent to payment and must be established to demonstrate that the claimant is a covered person. The Appellate Term, Second Department, reversed the order denying MVAIC's summary judgment motion and granting the provider's cross motion. It granted MVAIC's motion dismissing the complaint and denied the provider's cross motion, expressly reaching no other issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50576(U)
Insurer prevailed
The insurer's attorney's affirmation established the provider's EUO nonappearances despite a challenge to proof of presence at the start times. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross motion. The attorney stated that the EUOs were scheduled at the firm's office, that the attorney was present on both dates, and that nobody affiliated with the provider appeared. The attorney would have conducted the EUOs or assigned another authorized attorney had anyone appeared. Those statements sufficiently established nonappearance prima facie; the provider's objection that the affirmation did not conclusively establish presence at the scheduled start times raised no triable issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50574(U)
Provider prevailed
MVAIC's 30-day period to deny a claim or request verification runs from receipt, regardless of whether covered-person status is determined. MVAIC sought summary judgment dismissing two service-date claims on lack-of-medical-necessity grounds. Its contention that the period depended on determining whether the assignor was a covered person under Insurance Law § 5221 (b) (2) was rejected. MVAIC therefore failed to establish that it was not precluded from asserting the defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the denial of summary judgment on those two claims intact.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50564(U)
Insurer prevailed
An insurer need not prove that its first EUO scheduling letter was sent within 15 days of receiving an NF-2 or another provider's claim. The provider's sole appellate contention concerning the insurer's summary judgment motion was that the insurer had to make that showing as part of its prima facie case. Following Interboro Ins. Co. v Clennon and Excel Prods., Inc. v Ameriprise Auto & Home, the Appellate Term, Second Department, rejected the contention. It affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50569(U)
Insurer prevailed
An insurer need not prove that its first IME scheduling letter was sent within 15 days of receiving an NF-2 or another provider's claim. The provider's sole appellate contention concerning the insurer's summary judgment motion challenged the absence of that proof as part of the insurer's prima facie case. Applying 11 NYCRR 65-3.5 (b), Appendix 13, and City Anesthesia Healthcare, P.C. v Erie Ins. Co. of NY, the Appellate Term, Second Department, rejected the contention. It affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50592(U)
Insurer prevailed
MVAIC obtained summary judgment dismissing the provider's action as commenced after the three-year statute of limitations expired. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granting the provider's cross motion, granting dismissal and denying the cross motion. It relied on MVAIC's prima facie showing and the provider's failure to raise a factual issue as to timeliness, expressly reaching no other issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50590(U)
Insurer prevailed
MVAIC's summary judgment motion was granted because its papers showed that the provider sued after the three-year limitations period expired. The Appellate Term, Second Department, reversed the order, granted dismissal, and denied the provider's cross motion for summary judgment. It relied on MVAIC's prima facie showing and the provider's failure to raise a factual issue concerning timeliness, expressly reaching no other issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50589(U)
Insurer prevailed
MVAIC established that it had not received the required notice-of-intention affidavit and obtained dismissal of the provider's claims. Timely filing is a condition precedent to payment under Insurance Law § 5208 (a) (1) and (3) and Insurance Law § 5221 (b) (2), and compliance must be established to demonstrate covered-person status. The Appellate Term, Second Department, reversed the order that had denied MVAIC's summary judgment motion and granted the provider's cross motion. It granted MVAIC summary judgment dismissing the complaint and denied the provider's cross motion, expressly reaching no other issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50588(U)
Insurer prevailed
The provider failed at trial to justify a late MVAIC notice of claim or show court permission to file it late. A prior order under CPLR 3212 (g) limited trial to reasonable justification under Insurance Law § 5208 (b) (1) or leave under Insurance Law § 5208 (b) (2). The provider called no witnesses and attempted neither showing. Because timely notice is a condition precedent to benefits under Insurance Law § 5208 and Insurance Law § 5221 (b) (2), the provider failed to establish its prima facie case. The Appellate Term, Second Department, reversed the provider's judgment and remitted for judgment dismissing the complaint in MVAIC's favor, reaching no other issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50585(U)
Insurer prevailed
The insurer's submissions established timely mailing of EUO notices and denials and the provider's failure to appear for scheduled EUOs. An affidavit described the insurer's standard office practices and procedures for mailing the scheduling letters and denial forms. The attorney who was present at the office to conduct the EUOs on the scheduled dates supplied an affirmation establishing the provider's nonappearances. Together, those submissions demonstrated the insurer's prima facie entitlement to summary judgment, and the provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the denial of the insurer's motion and granted summary judgment dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50582(U)
The provider's appeal was dismissed because an order holding summary judgment motions in abeyance was not appealable as of right. The insurer sought dismissal based on the assignor's alleged eligibility for workers' compensation benefits, and the provider cross-moved for summary judgment. The Civil Court, Kings County, held both motions pending an application to the Workers' Compensation Board concerning whether the assignor acted in the course of employment and benefits might be available. Because the order decided neither motion, it was not appealable as of right under CCA 1702 (a) (2). The Appellate Term, Second Department, declined leave to appeal and dismissed the appeal.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50573(U)
Insurer prevailed
MVAIC's summary judgment motion dismissing the provider's claims was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed, relying on the claim representative's affidavit as sufficient proof of timely denials and finding no triable issue in the provider's opposition.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50565(U)
Insurer prevailed
The appealing defendants' motions to dismiss for lack of personal jurisdiction were granted on appeal. The provider alleged service by mail under CPLR 312-a but submitted no acknowledgment of service. Relying on the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co., the Appellate Term, Second Department, reversed the challenged rulings and dismissed the complaint against the three appealing defendants.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50566(U)
Split result
The insurer proved EUO nonappearance for later claims, but its first EUO request was a nullity for a claim received more than 30 days earlier. Office-practice evidence established mailing of the scheduling letters, and attorney affirmations and certified transcripts established nonappearance. The provider raised no triable issue concerning claims received February 8 through March 10, 2016, which were timely denied. For the February 2, 2016 claim, the first scheduling letter was mailed March 4, more than 30 days after receipt, and the insurer failed to show that its defense was not precluded. The Appellate Term, Second Department, modified the order to dismiss the later claims while leaving the provider's summary judgment on the earlier claim undisturbed because the insurer raised no other challenge to that award.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50567(U)
Insurer prevailed
The insurer's appeal from the denial of fee-schedule summary judgment was dismissed because the insurer was not aggrieved. The Civil Court, Kings County, had dismissed all claims for lack of medical necessity while denying summary judgment on the portions of the fifth and ninth causes of action seeking amounts above the workers' compensation fee schedule. Because the insurer had obtained dismissal of the entire complaint, the Appellate Term, Second Department, held that it could not appeal the denial of its alternative grounds under CPLR 5511 and Parochial Bus Sys. v Board of Educ. of City of NY.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50570(U)
Insurer prevailed
The insurer's counsel affirmations and EUO transcripts established the provider's failure to appear for EUOs. In this action for assigned first-party no-fault benefits, the provider appealed the denial of its summary judgment motion and the grant of the insurer's cross motion dismissing the complaint. The provider's sole appellate contention concerning the cross motion challenged the sufficiency of the proof of nonappearance. Relying on Pavlova v Nationwide Ins., the Appellate Term, Second Department, rejected that contention and affirmed the order in the insurer's favor.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50571(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal involving PFJ Med. Care, P.C. and Nationwide Ins., decided the same day, No. 2020-74 K C.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50572(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal involving MSB Physical Therapy, P.C. and the insurer, decided the same day, No. 2019-1349 K C.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50575(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order for the reasons stated in the companion appeal involving MSB Physical Therapy, P.C. and the insurer, decided the same day, No. 2019-1349 K C.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50578(U)
Insurer prevailed
The insurer's motion to dismiss for lack of personal jurisdiction was granted on appeal. The provider alleged mail service under CPLR 312-a, but its papers contained no acknowledgment of service. The Appellate Term, Second Department, reversed the order, insofar as appealed from, for the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50579(U)
Insurer prevailed
The provider's claims were submitted more than 45 days after supplies were furnished, and it raised no triable issue against the timely denial. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. The claims representative's affidavit established late submission under 11 NYCRR 65-1.1 and timely mailing of the denial. The denial advised that late notice would be excused upon reasonable justification. The provider's own claim forms were dated more than 45 days after the supplies were furnished and did not raise a factual issue. The court did not reach the insurer's alternative medical-necessity and fee-schedule defenses.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50580(U)
Insurer prevailed
The provider's arguments against the insurer's summary judgment motion were unpreserved because they were raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the action for assigned first-party no-fault benefits. Following Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen, the court declined to consider those arguments.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50583(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed because the provider's opposing affidavit did not demonstrate a factual issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50584(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the provider's complaint was granted, and the provider's cross motion was denied. The Appellate Term, Second Department, affirmed because the provider's opposing affidavit did not demonstrate a factual issue.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50586(U)
Provider prevailed
The insurer failed to prove proper IME scheduling notices or the assignor's nonappearances, and its alternative fee-schedule defense also failed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on bills one through five and seven through nine. The insurer's affidavit did not sufficiently establish timely generation and proper addressing of notices under the scheduling vendor's standard practices. The examining doctors' affirmations did not establish personal knowledge of nonappearance. For bill eight, the insurer also failed to establish that the charge exceeded the workers' compensation fee schedule. The grant of dismissal as to bill six was outside the appeal.
Appellate Term, Second Department
Jun 10, 2022
2022 NY Slip Op 50591(U)
Insurer prevailed
EUO scheduling letters identifying the accident date and assignor need not specify the bills to which they pertain. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the provider's complaint. Contrary to the Civil Court's finding, the letters' failure to identify particular bills did not invalidate the EUO demands. The insurer established proper mailing of the scheduling letters, the provider's failure to appear for the duly scheduled EUOs, and timely mailing of denials based on those nonappearances. The provider's opposition raised no triable issue.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50562(U)
Split result
The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log. To obtain summary judgment, the insurer had to prove payment of policy limits in accordance with 11 NYCRR 65-3.15. Its log lacked the foundation required by CPLR 4518 (a) and did not establish that any listed payments were made. The provider also failed to establish prima facie entitlement to summary judgment: its affidavit showed neither an untimely denial nor a timely denial that was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed the denial of the provider's cross motion.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50555(U)
Provider prevailed
The insurer failed at trial to prove that it properly applied fee-schedule codes to calculate reimbursement for acupuncture services. The parties stipulated to the provider's prima facie case and timely denials, leaving only the workers' compensation fee schedule for trial. The insurer presented denial forms but no fee-schedule witness, contending that Great Wall Acupuncture, P.C. v Geico Ins. Co. made testimony unnecessary. The Appellate Term, Second Department, reversed dismissal and remitted for judgment for the provider after calculation of statutory interest and attorney's fees. The court expressly did not reach whether the chiropractor fee schedule could govern the acupuncturist's services, because the insurer failed to prove proper code application even assuming that schedule applied.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50553(U)
Insurer prevailed
The insurer established the provider's failure to attend two duly scheduled EUOs and timely denials on that ground. It proved timely mailing of the initial and follow-up scheduling letters, nonappearance on both dates, and timely denial of the claims. The provider raised no triable issue opposing the insurer's cross motion. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, denied the provider's motion, and granted the insurer's cross motion. It remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50554(U)
Insurer prevailed
The insurer's attorney affirmation established the provider's failure to appear for scheduled EUOs, supporting summary judgment. The affirmation stated that the attorney was present in the office to conduct the EUOs on the scheduled dates and that the provider did not appear. An affidavit also established timely mailing of the scheduling letters and denial forms under the insurer's standard office practices. Those submissions demonstrated the insurer's prima facie entitlement to dismissal, and the provider raised no triable issue in opposition. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50556(U)
Split result
The insurer's affidavit failed to establish proper addressing and timely mailing of the IME scheduling letters. It did not sufficiently describe a standard office practice ensuring those steps, so the insurer failed to show that the assignor missed duly scheduled IMEs. The provider also failed to establish prima facie entitlement to summary judgment because its affidavit showed neither an untimely denial nor a timely denial that was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's motion and affirmed denial of the provider's cross motion, expressly reaching no other issue concerning the insurer's motion.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50557(U)
Provider prevailed
The insurer failed to establish timely denials after the provider missed an initial and a follow-up EUO. The insurer appealed only the denial of summary judgment on claims for services rendered to three of the six assignors. Following Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co. and Allay Med. Servs., P.C. v Nationwide Ins., the Appellate Term, Second Department, held that the insurer had not demonstrated that it was free from preclusion of its EUO defense. It affirmed the order, insofar as appealed from, leaving those claims undismissed, and expressly reached no other issue.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50558(U)
Insurer prevailed
The insurer established timely mailing of EUO scheduling letters and the assignor's failure to appear, warranting dismissal. The Civil Court, Kings County, had denied both parties' summary judgment motions while finding, in effect under CPLR 3212 (g), that the denials were timely and leaving mailing and nonappearance for trial. The Appellate Term, Second Department, found that the insurer proved both remaining matters. Because the provider raised no triable issue and did not challenge the findings already made in the insurer's favor, the appellate court reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50559(U)
Insurer prevailed
The insurer established proper mailing of EUO scheduling letters and entitlement to dismissal for the assignor's nonappearance. Under Interboro Ins. Co. v Clennon, the insurer had to show two duly demanded EUOs, two failures to appear, and timely denials. The provider's challenge to mailing proof failed on the record. Its further argument that the letters had to be timely mailed after receipt of the NF-2 was raised for the first time on appeal and also lacked merit under Insurance Law article 51, 11 NYCRR 65-3.5 (a) and (d), and Appendix 13. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross motion.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50560(U)
Insurer prevailed
The appealing defendants' motions to dismiss for lack of personal jurisdiction were granted on appeal. The provider alleged service by mail under CPLR 312-a but submitted no acknowledgment of service. Relying on the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co., the Appellate Term, Second Department, reversed the challenged rulings and dismissed the complaint against the three appealing defendants.
Appellate Term, Second Department
Jun 3, 2022
2022 NY Slip Op 50563(U)
Insurer prevailed
The insurer's motion to dismiss the no-fault complaint for lack of personal jurisdiction was granted on appeal. The provider alleged service by mail under CPLR 312-a but submitted no acknowledgment of service. For the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted dismissal.
Trial court, First Department
Jun 21, 2022
2022 NY Slip Op 50517(U)
Insurer prevailed
The insurer obtained default judgment based on a founded belief that the claimed injuries did not arise from a covered collision. The Supreme Court, New York County, found service, defaults and supporting proof sufficient under CPLR 3215. It denied an answering provider's request for dismissal under CPLR 3215 (c): that provider had not defaulted, and the insurer showed good cause for its brief delay through active prosecution and settlement negotiations. The court also declined dismissal under CPLR 3211 (a) (4) because this coverage action preceded the parallel de novo arbitration action by 10 months, sought broader relief and had progressed farther. Because the actions involved overlapping facts and law, it granted the cross motion only to direct consolidation under CPLR 3211 (a) (4) and CPLR 602.
