Appellate Term, Second Department
Aug 26, 2022
2022 NY Slip Op 50908(U)
Insurer prevailed
CPLR 3212 (g) permits findings of undisputed facts, not a shift in the burden or order of proof at trial. The insurer denied receipt of the claims and submitted its adjuster's affidavit of nonreceipt against the provider's summary judgment cross motion. The Civil Court declared the provider's prima facie case established while directing trial on defenses including nonreceipt. Receipt and nonpayment comprise the provider's trial burden; summary judgment additionally requires untimely or legally deficient denials under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). Evidence of nonreceipt disputed receipt and called mailing into question. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the cross motion, and vacated the findings because they identified no incontrovertible facts and improperly limited trial.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50902(U)
Insurer prevailed
The provider raised no factual issue about EUO date convenience after the insurer accommodated its repeated rescheduling requests. The provider repeatedly sought unspecified dates two months beyond the initially scheduled EUOs, and the insurer complied. On appeal, the provider's sole challenge to the insurer's summary judgment motion concerned whether the EUOs were scheduled on reasonably convenient dates under 11 NYCRR 65-3.5 (e). Under these circumstances, that challenge did not create a triable issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint for the provider's failure to appear at duly scheduled EUOs and denying the provider's cross motion.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50906(U)
Insurer prevailed
The provider's benefits action was barred by collateral estoppel because a declaratory judgment had decided its entitlement to coverage. The Civil Court entered judgment for the provider after treating privity between the named defendant and the declaratory judgment insurer as the sole trial issue. The Appellate Term, Second Department, reversed the judgment, vacated the denial of dismissal and CPLR 3212 (g) findings, granted the insurer's CPLR 3211 (a) (5) and (7) motion, and remitted for dismissal. The coverage issue was identical, and the provider had appeared and opposed the declaratory judgment motion. The defense arose after the answer; an unpleaded defense could support dismissal absent surprise or prejudice.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50904(U)
Insurer prevailed
The insurer's detailed law-office-failure explanation and motion two days after entry of the default order supported vacatur. Under CPLR 2005 and CPLR 5015 (a) (1), the Appellate Term, Second Department, upheld vacatur of the provider's summary judgment order; potentially meritorious opposition was not challenged on appeal. Vacatur also defeated the provider's argument that the insurer's summary judgment cross motion was moot. The court affirmed the order, insofar as appealed from, leaving dismissal of claims 1, 2, 4, 5, 11, 12, and 13 for EUO nonappearance intact. Summary judgment on claims 3, 6, 7, 8, 9, and 10 remained denied, with CPLR 3212 (g) findings limiting trial to application of the appropriate fee schedule.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50901(U)
Split result
The provider failed to establish jurisdiction over two defendants, while Good2Go Auto Insurance failed to rebut proof of service. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant CPLR 3211 (a) (8) dismissal for American Independent Ins. Co. and American Independent Insurance Companies, Inc., but affirmed denial for Good2Go. The first defendant's affidavits described no New York business contacts; counsel's unsupported, unsigned affirmation lacked probative value. Proof of service on the second defendant showed only service on Good2Go. Good2Go did not show that the recipient lacked authority under CPLR 311 (1). Omni Indemnity Company's appeal was dismissed as nonaggrieved under CPLR 5511.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50903(U)
Split result
Two defendants' dismissal motions were granted on appeal, while denial of Good2Go Auto Insurance's motion was affirmed. The Appellate Term, Second Department, modified the order, insofar as appealed from, for American Independent Ins. Co. and American Independent Insurance Companies, Inc., following companion appeal No. 2020-251 K C, decided the same day. Omni Indemnity Company's appeal was dismissed as nonaggrieved under CPLR 5511.
Appellate Term, Second Department
Aug 19, 2022
2022 NY Slip Op 50907(U)
Split result
The provider satisfied the extended service deadline, but a declaratory judgment barred its benefits action under res judicata. The Appellate Term, Second Department, granted leave under CCA 1702 (c), reversed the order, vacated the sua sponte dismissal for untimely service, and granted the provider's service motion and the insurer's CPLR 3211 (a) cross motion to dismiss. Although service occurred beyond the 120 days under CPLR 306-b and CCA 403, an order allowing 30 more days implicitly extended time, and a stay prevented that period from expiring. The earlier service satisfied the extension. The Supreme Court declaration denied payment for the bills based on the provider's EUO nonappearance; recovery would impair rights established by that judgment.
Appellate Term, Second Department
Aug 12, 2022
2022 NY Slip Op 22262
Insurer prevailed
The insurer established grounds to vacate its default through counsel's prompt action and an undisputed lack-of-coverage defense. The insurer failed to forward the complaint to counsel but had previously told the provider it did not insure the assignor. After notice of the default judgment, it sought withdrawal of the action and referred the matter to counsel, which promptly answered and moved to vacate. Applying CPLR 5015 (a) (1), the majority relied on the absence of a pattern of neglect, the undisputed defense, no claimed prejudice from the brief delay, and the policy favoring decisions on the merits. The Appellate Term, Second Department, affirmed vacatur; a dissent considered the default intentional and inexcusable and would have denied the motion.
Appellate Term, Second Department
Aug 12, 2022
2022 NY Slip Op 50793(U)
Provider prevailed
The insurer's EUO requests were nullities for the claims at issue because the initial request was sent more than 30 days after receipt. The Appellate Term, Second Department, affirmed the order denying the insurer's summary judgment motion based on the provider's EUO nonappearance and granting the provider's cross motion for assigned no-fault benefits. The untimely initial request prevented the insurer from obtaining dismissal on that defense. The insurer raised no issue concerning the provider's prima facie entitlement to summary judgment, so the appellate court expressly declined to pass on the propriety of that portion of the Civil Court's determination.
Appellate Term, Second Department
Aug 12, 2022
2022 NY Slip Op 50794(U)
Provider prevailed
The insurer's summary judgment motion based on the provider's EUO nonappearance was denied, and the provider's cross motion was granted. The Appellate Term, Second Department, affirmed the order in favor of the provider for the reasons stated in the companion appeal decided the same day, No. 2019-1404 K C. The decision supplied no independent reasoning concerning the assigned no-fault claims.
Appellate Term, Second Department
Aug 12, 2022
2022 NY Slip Op 50795(U)
Insurer prevailed
The insurer established timely mailing of the assignor's EUO scheduling letters through its standard office practices and procedures. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's assigned no-fault claims and denying the provider's cross motion. An insurer seeking judgment based on an assignor's EUO nonappearance must establish two duly demanded EUOs, two failures to appear, and a timely denial. The provider's sole appellate challenge to the insurer's motion concerned timely mailing of the scheduling letters. On review of the record, the court found the insurer's proof sufficient to establish mailing in accordance with its standard procedures.
Appellate Term, Second Department
Aug 12, 2022
2022 NY Slip Op 50797(U)
Split result
The insurer failed to establish timely EUO nonappearance denials for the provider's first three causes of action. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on those claims, while affirming dismissal of the fourth through seventh causes of action and denial of the provider's cross motion. The insurer did not establish denials within 30 days of the second EUO nonappearance for the first three claims. The provider nevertheless failed to establish its own prima facie entitlement to judgment. For the remaining claims, the insurer's proof established presumptions of proper mailing. For the fourth claim, an EUO request predating claim receipt and a timely follow-up request tolled the deadline; denial 11 days after the second scheduled EUO was timely.
Appellate Term, Second Department
Aug 11, 2022
2022 NY Slip Op 50789(U)
Insurer prevailed
The provider failed to establish that it gave MVAIC reasonable justification for submitting its claims after the 45-day deadline. The Appellate Term, Second Department, reversed the order, granted MVAIC summary judgment dismissing the complaint, and denied the provider's cross motion. Under 11 NYCRR 65-1.1, the claims were due within 45 days after services were rendered. MVAIC timely denied them and advised that reasonable justification could excuse the delay under 11 NYCRR 65-3.3 (e). The provider initially billed an insurance company and submitted the claims to MVAIC after learning that company would not cover them. It did not establish that it had explained to MVAIC why it initially submitted the claims to that insurer.
Appellate Term, Second Department
Aug 5, 2022
2022 NY Slip Op 50784(U)
Split result
MVAIC obtained severance of seven assignors' claims into five actions, but its request for a separate action for every assignor was denied. The complaint alleged five accidents on different dates. The Appellate Term, Second Department, modified the order, insofar as appealed from, under CPLR 603 to create three individual-assignor actions and two joint actions, each covering a pair of assignors. Claim documents showed few, if any, common issues concerning the three individual claims and between one pair and the remaining assignors. The record did not support separating that pair's claims from each other and supplied no information warranting separation of the other pair. The order was otherwise affirmed insofar as appealed from.
Appellate Term, Second Department
Aug 5, 2022
2022 NY Slip Op 50786(U)
Insurer prevailed
MVAIC's summary judgment motion was granted because the provider's action was brought after the three-year limitations period expired. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint. 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
Aug 5, 2022
2022 NY Slip Op 50785(U)
Split result
The provider's verification-mailing affidavit raised factual issues on three claims, while MVAIC established payment of the fourth. MVAIC showed timely initial and follow-up verification requests, nonreceipt, and timely denials of the first three claims under 11 NYCRR 65-3.5 (o). The provider's opposing affidavit nevertheless created a presumption that the requested verification was mailed to and received by MVAIC. For the fourth claim, MVAIC established payment after receiving verification, and the provider raised no factual issue. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the first through third causes of action and otherwise affirmed, leaving dismissal of the fourth cause of action intact.
Appellate Term, Second Department
Aug 5, 2022
2022 NY Slip Op 50782(U)
Insurer prevailed
The insurer established that the provider's assignor failed to appear for duly scheduled EUOs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's action for assigned first-party no-fault benefits and denying the provider's cross motion. The court rejected the provider's appellate challenge to the proof of nonappearance. It declined to consider the provider's remaining argument because that argument was raised for the first time on appeal.
Appellate Term, Second Department
Aug 5, 2022
2022 NY Slip Op 50783(U)
Insurer prevailed
The provider's owner's affidavit did not establish presumptions of timely mailing and receipt of the eighth and ninth claim forms. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the first through seventh and tenth causes of action and denying the provider's cross motion. The challenges to dismissal lacked merit for the reasons stated in ACH Chiropractic, P.C. v Nationwide Ins., the companion appeal decided the same day, No. 2019-1357 K C. For the eighth and ninth causes of action, the insufficient mailing affidavit warranted denial of the provider's request for summary judgment.
Trial court, Second Department
Aug 25, 2022
2022 NY Slip Op 50824(U)
Insurer prevailed
The insurer proved at trial that lower-extremity electrodiagnostic studies were medically unnecessary. The Civil Court, Richmond County, entered judgment for the insurer and dismissed the action with prejudice after a bench trial limited by stipulation to medical necessity under Insurance Law § 5102 (a) (1). The insurer's peer reviewer testified that the normal neurological examination and absence of clinical indications made the needle EMG unnecessary, and that the F-wave study was unnecessary to rule out radiculopathy. The court credited the testimony and report as providing a factual basis and medical rationale for denial. The provider relied on stipulated documentary evidence, called no witnesses and failed to rebut the insurer's showing.
Trial court, First Department
Aug 24, 2022
2022 NY Slip Op 50818(U)
Provider prevailed
The insurers' default-judgment motion failed for lack of proof that the provider's EUOs were timely and properly requested. The Supreme Court, New York County, denied the motion without prejudice in a declaratory judgment action concerning claims arising from dozens of collisions. Under CPLR 3215 (f), the verified complaint's conclusory allegations did not establish the claim. The insurers supplied no mailing proof, and their chart omitted bill-receipt dates needed to assess the 15-business-day requirement under 11 NYCRR 65-3.5 (b). Their papers did not address provider requests for justification or scheduling changes; specific justification under 11 NYCRR 65-3.5 (e) was not squarely presented. The action remained pending, subject to administrative dismissal unless the insurers renewed their motion within 60 days of entry.
Trial court, First Department
Aug 16, 2022
2022 NY Slip Op 50799(U)
Split result
An insurer's material-misrepresentation defense is subject to the 30-day no-fault deadline for paying or denying claims. Following Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., the Supreme Court, New York County, applied 11 NYCRR 65-3.8 (a) (1) and (c), noting Vehicle and Traffic Law § 313 bars retroactive policy rescission. Verification directed to the insured about application misrepresentations tolled deadlines for the assignee's related bills. The appearing provider obtained summary judgment on one of ten bills because no denial was found for that bill; relief on the other nine was denied. Attorney fees were denied for lack of substantial relief, and sanctions were denied. The insurers obtained default judgment against the injured claimant and five nonappearing providers based on material misrepresentation.
Trial court, First Department
Aug 15, 2022
2022 NY Slip Op 50757(U)
Provider prevailed
The insurer's default judgment motion failed because it did not establish compliance with the regulatory timing requirements for IMEs. The Supreme Court, New York County, denied the unopposed motion against the injured claimant and nonappearing provider-assignees. The insurer did not establish when its IME requests were sent relative to receipt of providers' NF-3 forms, or that it requested an IME before receiving any such forms. It therefore failed to show compliance with the 15-day request requirement under 11 NYCRR 65-3.5 (b) and the 30-calendar-day scheduling requirement under 11 NYCRR 65-3.5 (d). The court directed dismissal against the defaulting defendants unless the insurer filed a renewed motion within 30 days of entry.
Trial court, Second Department
Aug 9, 2022
2022 NY Slip Op 50877(U)
Split result
The insurer's timely denials defeated the provider's request for judgment despite insufficient proof of the IME no-show defense. The Civil Court, Kings County, granted the insurer's motion only to establish timely denial and the provider's cross motion only to establish timely claim submission and nonpayment. The scheduling affidavit lacked mailing procedures, and delivery confirmations were not linked to the letters. The examiner supplied neither underlying records nor sufficient personal knowledge of nonappearance. Applying Insurance Law § 5106 (a) and Shara Acupuncture, P.C. v Allstate Ins. Co., the court found that timely denials defeated the provider's showing of untimely payment or denial; the provider had not shown the denials were conclusory, vague or legally meritless. The IME no-show defense remained for trial.
Trial court, First Department
Aug 5, 2022
2022 NY Slip Op 50716(U)
Provider prevailed
A master arbitrator may not reweigh evidence or resolve credibility disputes anew in reviewing a no-fault award. The Civil Court, New York County, denied the insurer's CPLR 7511 petition and confirmed the award under CPLR 7511 (e). The arbitrator credited the provider's medical records and rebuttal concerning knee surgery and rejected the peer review's causation opinion as conclusory. The insurer failed to show irrationality, improper evidentiary burdens or an excess of arbitral power. The award was final and definite because it resolved the claims and interest and fees were arithmetically ascertainable. Under 11 NYCRR 65-4.10 (j) (4), the court also awarded reasonable attorney fees for opposing the petition without applying the caps governing master-arbitration services.
Trial court, Second Department
Aug 1, 2022
2022 NY Slip Op 50700(U)
Provider prevailed
An IME finding that no further treatment is necessary does not conclusively establish that future treatment lacks medical necessity. After trial, the Civil Court, Kings County, rendered judgment for the provider for acupuncture services denied on the basis of an earlier IME. The IME shifted the burden to the provider to establish medical necessity by a preponderance of the credible evidence. The treating acupuncturist credibly testified that the assignor was evaluated before each treatment and that continued care was necessary. Treatment records supported that testimony, and objective and subjective findings correlated. Crediting the treating provider over the insurer's IME examiner, the court found the treatments medically necessary.
