Appellate Term, Second Department
Jul 22, 2022
2022 NY Slip Op 22260
Insurer prevailed
Collateral estoppel does not require privity between the insurer invoking it and a party to the prior declaratory judgment action. The provider had answered that action but did not oppose summary judgment declaring no entitlement to benefits arising from the accident. The insurer established identity of the coverage issue, and the provider failed to show the absence of a full and fair opportunity to litigate. Privity was an element of res judicata, not collateral estoppel. The court deemed the answer amended to assert collateral estoppel, which arose after the answer, and noted that an unpleaded defense may support summary judgment absent surprise or prejudice. The Appellate Term, Second Department, affirmed dismissal on the insurer's cross motion and denial of the provider's motion.
Appellate Term, Second Department
Jul 22, 2022
2022 NY Slip Op 50775(U)
Insurer prevailed
The insurer's attorney affirmation established the provider's EUO nonappearances without specifying a particular time of day. The affirmation stated that the attorney was in the firm's office on the scheduled dates, would have conducted the EUOs or assigned another attorney, and that the provider did not appear. The Appellate Term, Second Department, found that showing sufficient; no statement of presence at a specific time was required. The provider raised no triable issue, and its remaining contention concerning the insurer's motion was raised for the first time on appeal and was not considered. The court affirmed summary judgment dismissing the complaint and denial of the provider's cross motion.
Appellate Term, Second Department
Jul 22, 2022
2022 NY Slip Op 50778(U)
Provider prevailed
The provider's affidavit created a presumption of delivery of requested verification, raising a factual issue as to whether suit was premature. MVAIC had obtained summary judgment dismissing the action for assigned no-fault benefits. In opposition to that motion, however, the provider submitted an affidavit sufficient to give rise to a presumption that the verification had been mailed to and received by MVAIC. That showing left a triable issue concerning prematurity. The Appellate Term, Second Department, reversed the order and denied MVAIC's motion, while rejecting the provider's remaining contention.
Appellate Term, Second Department
Jul 22, 2022
2022 NY Slip Op 50776(U)
Insurer prevailed
The insurer's summary judgment dismissing the provider's claims for failure to appear at scheduled EUOs was affirmed. The Appellate Term, Second Department, also affirmed denial of the provider's cross motion for summary judgment, for the reasons stated in the companion appeal decided the same day, No. 2020-400 K C.
Appellate Term, Second Department
Jul 22, 2022
2022 NY Slip Op 50774(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for default because it did not explain mailing both answers to counsel's prior address. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion. Although CPLR 2005 permits acceptance of law office failure, supporting facts and a detailed explanation are required. Counsel attributed the initial answer's incorrect index number to law office failure but left the mailing error unexplained. The court therefore did not reach whether the insurer established a meritorious defense. A separate declaratory-action injunction did not bar this action: it postdated the default judgment, terminated upon entry of the declaratory judgment, and that judgment contained no disposition against the provider.
Appellate Term, Second Department
Jul 15, 2022
2022 NY Slip Op 50766(U)
Split result
The insurer's own affidavits established the provider's entitlement to $97.14 on a fully denied claim billed under CPT code 99205. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of that claim and, upon searching the record, grant the provider summary judgment. Dismissal remained in effect for claims billed under CPT code 99212 that exceeded the workers' compensation fee schedule, eight claims established as fully paid by endorsed checks, and three claims the insurer established it had not received. Counsel's affirmation without personal knowledge raised no factual issue concerning the fee schedule. The insurer's nonreceipt affidavit was sufficiently detailed, and the provider supplied no sworn statement establishing submission of the three disputed claim forms.
Appellate Term, Second Department
Jul 15, 2022
2022 NY Slip Op 50770(U)
Insurer prevailed
The provider's challenge to an EUO nonappearance affirmation based on the attorney's status as insurer staff counsel was rejected. The insurer obtained summary judgment dismissing the assigned no-fault benefits complaint for the provider's failure to attend duly scheduled EUOs. The provider disputed timely mailing of the denials and argued that CPLR 2106 (a) barred use of the attorney's affirmation because the attorney's firm served as staff counsel to the insurer. The Appellate Term, Second Department, found the mailing proof sufficient to create a presumption of timely mailing and rejected the affirmation objection. It affirmed the order granting the insurer's motion.
Appellate Term, Second Department
Jul 15, 2022
2022 NY Slip Op 50767(U)
Provider prevailed
The insurer's summary judgment motion to dismiss the provider's claims based on EUO nonappearance was denied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2019-954 K C. The decision supplied no independent reasoning for rejecting the insurer's request to dismiss the assigned no-fault claims.
Appellate Term, Second Department
Jul 15, 2022
2022 NY Slip Op 50768(U)
Provider prevailed
The insurer failed to establish timely denials after the provider missed both the initial and follow-up EUOs. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment dismissing the assigned no-fault claims. Because the insurer did not demonstrate that it was free from preclusion, it failed to establish entitlement to judgment on its EUO nonappearance defense. The court expressly reached no other issue, and the appeal was limited to the denial of the insurer's motion.
Appellate Term, Second Department
Jul 15, 2022
2022 NY Slip Op 50769(U)
Provider prevailed
The insurer's summary judgment motion to dismiss the provider's claims based on EUO nonappearance was denied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal decided the same day, No. 2019-954 K C. The decision supplied no independent reasoning for rejecting the insurer's request to dismiss the assigned no-fault claims.
Appellate Term, Second Department
Jul 1, 2022
2022 NY Slip Op 50623(U)
Insurer prevailed
The provider's qualified assertion of mailing verification failed to show compliance or a reasonable justification for noncompliance. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for failure to provide requested verification and the denial, as academic, of the provider's motion to compel discovery and dismiss affirmative defenses. The insurer's claims specialist stated that none of the requested documents had been received. The provider's owner stated only that verification was mailed to the extent a response was proper and the material was in the owner's possession. That affidavit raised no triable issue under 11 NYCRR 65-3.8 (b) (3).
Appellate Term, Second Department
Jul 1, 2022
2022 NY Slip Op 50621(U)
Provider prevailed
The insurer failed to establish timely EUO denials because it did not prove that the first scheduled EUO had been mutually rescheduled. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment against the provider. The insurer asserted that the first of three EUOs had been mutually rescheduled, but its denial forms listed all three dates as nonappearances. A rescheduling agreed upon before an EUO does not count as a failure to appear. Because the denials were issued more than 30 days after the second scheduled EUO, a factual issue remained under 11 NYCRR 65-3.8 (c) concerning timeliness and preclusion of the assignor's EUO nonappearance defense.
Appellate Term, Second Department
Jul 1, 2022
2022 NY Slip Op 50622(U)
Insurer prevailed
The provider's conditional attendance demands raised no factual issue about whether its EUOs were scheduled at reasonably convenient times. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment based on the provider's EUO nonappearances and denying the provider's cross motion. The provider's letters improperly conditioned attendance on payment of a flat up-front fee and repeatedly sought postponements to unspecified dates two months later. Those letters did not create a triable issue under 11 NYCRR 65-3.5 (e) concerning the reasonable convenience of the scheduled EUOs.
Appellate Term, Second Department
Jul 1, 2022
2022 NY Slip Op 50619(U)
Insurer prevailed
The assignor's conclusory denial of receiving IME scheduling letters did not rebut the insurer's proof of proper mailing and nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer partial summary judgment dismissing the second and third causes of action. An affidavit from an employee of the company retained to schedule IMEs established timely and proper mailing, and the insurer also established the assignor's nonappearances and timely claim denials. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the nonappearances breached a condition precedent to coverage. The assignor's bare denial of receipt raised no triable issue.
Appellate Term, Second Department
Jul 1, 2022
2022 NY Slip Op 50620(U)
Split result
The insurer's doctors failed to establish personal knowledge of the assignor's IME nonappearances, defeating summary judgment on that defense. The Appellate Term, Second Department, nevertheless modified the order to deny the provider's cross motion, leaving both parties without summary judgment. Although the insurer established timely and proper mailing of IME scheduling letters under 11 NYCRR 65-3.5 (a) and (d), its doctors' affidavits did not establish personal knowledge of nonappearance. The provider's proof likewise failed to establish that the claims were not timely denied or that timely denials were conclusory, vague or without merit as a matter of law.
Trial court, Second Department
Jul 21, 2022
2022 NY Slip Op 50690(U)
The insurer failed to establish its fee-schedule defense because its analyst's affidavit did not establish expert qualifications. The Civil Court, Queens County, denied the insurer's summary judgment motion and the provider's cross motion. Although charges are limited by Insurance Law § 5108 (a) and 11 NYCRR 65-3.8 (g) (1) (ii), judicial notice of fee schedules under CPLR 4511 (b) does not independently establish their proper application. The insurer's analyst did not explain how education, training or apprenticeship supplied familiarity with billing codes, leaving the defense unsupported by qualified expert opinion. The provider also failed to establish entitlement to judgment: the denial forms on which it relied showed partial payment and timely denial of the balance.
Trial court, Second Department
Jul 18, 2022
2022 NY Slip Op 22284
Insurer prevailed
The provider failed at trial to prove that its assignor satisfied MVAIC's accident-reporting condition for coverage. The Civil Court, Kings County, dismissed the action despite an earlier determination establishing timely mailing and nonpayment of the bills. MVAIC's qualification examiner testified that a notice of intention to claim had been submitted, but no police report or response to a request for proof of reporting within 24 hours was received. The provider presented no witnesses or evidence of compliance with Insurance Law § 5208, or that timely reporting was not reasonably possible or occurred as soon as reasonably possible under subdivision (a) (2) (B). The court found the assignor was not covered under Insurance Law § 5221 (b) (2) and deemed the limitations issue moot.
