Appellate Division, First Department
Sep 27, 2022
2022 NY Slip Op 05277
Provider prevailed
The insurers failed to establish that the claimant's misrepresentation of her home address was material to issuance of the policy. Although the claimant's EUO testimony undisputedly established an incorrect address, the underwriter's conclusory affidavit lacked supporting underwriting manuals, rules, or bulletins. The Appellate Division, First Department, reversed summary judgment declaring that the providers were not entitled to assigned no-fault benefits, vacated the declaration, and denied the insurers' motion without prejudice. The matter was remanded for further discovery concerning the insurers' claim and underwriting practices and guidelines.
Appellate Term, Second Department
Sep 30, 2022
2022 NY Slip Op 51136(U)
Split result
The provider's affidavit raised a factual issue as to mailing and receipt of verification, preventing summary judgment for either side. The insurer established prima facie that it timely mailed initial and follow-up verification requests and had not received the requested materials. The provider's opposing affidavit nevertheless raised an issue concerning whether verification had been mailed to and received by the insurer, leaving the action's prematurity unresolved. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the provider's cross motion for summary judgment. The denial of the insurer's motion for summary judgment dismissing the complaint remained intact, so neither party obtained summary judgment.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 22300
Provider prevailed
A no-fault claim accrues upon receipt of a denial received before the claim determination period expires. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's CPLR 3211 (a) (5) motion under the six-year limitation in CPLR 213 (2). Based on 11 NYCRR 65-3.9 (c), it declined to follow New York Med. Rehab., P.C. v Travelers Ins. Co. insofar as that decision used issuance and mailing as the accrual date. Mailing raises a receipt presumption but fixes no receipt date. The action began six years and three days after mailing; presuming receipt within two days was unreasonable on this record. The insurer failed to establish untimeliness, leaving unresolved whether accrual preceded expiration of the claim determination period.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50931(U)
Insurer prevailed
The insurer's attorney's affirmation established the provider's failure to appear for scheduled EUOs. The attorney stated that she was present at the scheduled location and would have conducted the EUOs had the provider appeared, establishing personal knowledge of the nonappearances. The affirmation was not facially unworthy of belief, and the Civil Court's concern about the attorney's recollection did not warrant denying summary judgment. The provider submitted no affidavit asserting an appearance and did not otherwise challenge the implicit findings in the insurer's favor under CPLR 3212 (g). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50927(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, rejected the provider's sole appellate argument, finding the insurer's proof sufficient to establish the nonappearances and relying on prior EUO cases.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50935(U)
Insurer prevailed
The provider failed to raise a factual issue that it supplied outstanding verification or reasonably justified withholding it. The insurer established timely mailing of initial and follow-up verification requests and nonreceipt of all requested material. The provider's owner asserted only that a response had been mailed to the extent proper and within the owner's possession. An attorney separately supplied part of the verification while withholding the remainder as objectionable. These submissions did not establish compliance or reasonable justification under 11 NYCRR 65-3.8 (b) (3). The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the action as premature and denying the provider's cross motion.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50933(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and the denial, and the provider's failure to appear for the EUOs. Office-practice affidavits proved mailing, and affirmations from attorneys present to conduct the EUOs established the nonappearances. Those submissions demonstrated the insurer's entitlement to summary judgment, and the provider failed to raise a triable issue. The Appellate Term, Second Department, modified the order to grant the insurer's initial motion for summary judgment dismissing the complaint. The insurer's subsequent motion to amend its answer to assert policy exhaustion and to add that ground to its pending summary judgment motion was rendered academic.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50928(U)
Provider prevailed
The insurer's motion to dismiss the no-fault action on statute-of-limitations grounds was denied, and the denial was affirmed. The insurer sought dismissal under CPLR 3211 (a) (5). 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. 2020-96 K C.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50926(U)
Insurer prevailed
The provider's action was time-barred because its submission evidence placed the payment due date more than six years before suit. The provider's owner stated that the claims were submitted on or before October 20, 2007, remained unpaid, and bore interest beginning 30 days after submission. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, the payment due date was therefore deemed to be in November 2007. The action commenced in 2018, after the contractual limitations period under CPLR 213 (2) expired, and the provider raised no factual issue concerning timeliness. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurers summary judgment dismissing the complaint.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50929(U)
Insurer prevailed
An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy. The insurer demonstrated that it properly scheduled the assignor's IMEs before receiving the claim, that the assignor failed to appear, and that it timely denied the claim on that ground. The Civil Court had denied both summary judgment motions and limited trial, under CPLR 3212 (g), to the IME nonappearance defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. It declined to consider the provider's remaining argument because it was raised for the first time on appeal.
Appellate Term, Second Department
Sep 23, 2022
2022 NY Slip Op 50934(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials, and the provider raised no factual issue concerning mailing timeliness. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment based on the assignor's failure to appear for duly scheduled EUOs and denying the provider's cross motion. The insurer's proof created a presumption of timely mailing. The court also rejected the provider's argument that an initial EUO notice sent before receipt of the claims at issue had to be sent within 15 business days of receipt of the NF-2 form or another provider's claim, relying on 11 NYCRR 65-3.5 (b) and Appendix 13.
Appellate Term, Second Department
Sep 16, 2022
2022 NY Slip Op 50920(U)
Split result
The provider obtained summary judgment on a claim denied for missing therapy instructions because the insurer sought no verification. The Appellate Term, Second Department, modified the order to grant the provider judgment on the first cause of action, concerning CPT code 97001, and deny the insurer judgment on the first and third through tenth causes. Dismissal of the second cause remained because conclusory nonreceipt of the insurer's mailed check raised no factual issue. For the third through tenth causes, the insurer failed to establish proper addressing and generation of IME notices, personal knowledge of nonappearance, or improper or excessive fee-schedule billing. The provider also failed to establish late or legally deficient denials, so its motion on those causes remained denied.
Appellate Term, Second Department
Sep 9, 2022
2022 NY Slip Op 50916(U)
Split result
The provider's delay of more than 20 years in seeking judgment after an inquest warranted tolling interest during that period. The Appellate Term, Second Department, modified the order, insofar as appealed from, to toll interest only from June 27, 1997, the inquest decision, through April 5, 2018, the motion for judgment, under former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d). It restored interest awarded from April 21, 1995, to June 27, 1997, because no unreasonable delay was found then. For the 1994 accident, interest was compounded under former 11 NYCRR 65.15 (h) (1). The direct appeal from the sua sponte tolling order was dismissed under CCA 1702 (a). The court distinguished delayed judgment after settlement under CPLR 5003-a.
Appellate Term, Second Department
Sep 9, 2022
2022 NY Slip Op 50913(U)
Insurer prevailed
The three appealing defendants' motions to dismiss for lack of personal jurisdiction were granted on appeal. The provider alleged mail service under CPLR 312-a but submitted no acknowledgment of service. The Appellate Term, Second Department, reversed the first order and the second order, insofar as appealed from, and dismissed the complaint against those defendants for the reasons stated in Longevity Med. Supply, Inc. v American Ind. Ins. Co.
Appellate Term, Second Department
Sep 9, 2022
2022 NY Slip Op 50914(U)
Insurer prevailed
The insurer's summary judgment motion based on the assignor's EUO nonappearance was granted on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and dismissed the complaint for the reasons stated in the companion appeal decided the same day, No. 2019-683 K C. The Civil Court had limited trial under CPLR 3212 (g) to the disputed EUO no-show defense.
Appellate Term, Second Department
Sep 9, 2022
2022 NY Slip Op 50915(U)
Insurer prevailed
The insurer proved timely mailing of the disputed EUO notice and the assignor's nonappearance through counsel's affirmation and a transcript. The Civil Court had found timely mailing of bills and denials under CPLR 3212 (g) and limited trial to the no-show defense for one EUO. The insurer's proof established timely and proper mailing of the notice for that EUO, and counsel's affirmation and the transcript established nonappearance. The provider raised no triable issue and did not otherwise challenge the implicit finding favoring the insurer. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Trial court, Second Department
Sep 30, 2022
2022 NY Slip Op 22309
Insurer prevailed
An insurer's good-faith lack-of-coverage defense falls outside mandatory arbitration of disputes over priority of no-fault payment. The assignor was a passenger in a vehicle engaged in commercial ride sharing, which the defendant insurer's personal-use policy excluded from its definition of insured persons. The provider did not dispute those facts but argued that the first-billed insurer must pay and arbitrate with the other insurer. Under Insurance Law § 5106 (d) (1), Insurance Law § 5105 (b) and 11 NYCRR 65-4.11 (a) (6), the court found no interinsurer controversy or reasonable basis to believe both policies covered the claim. Requiring payment would create coverage. The Civil Court, Kings County, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion.
Trial court, Second Department
Sep 19, 2022
2022 NY Slip Op 50883(U)
Provider prevailed
The insurer failed to establish res judicata because party identity was unproved, and its check did not establish payment of the claim. The Civil Court, Queens County, denied summary judgment under CPLR 3212 (b) without considering the provider's opposition. The insurer did not show that it was the same party as the plaintiff in the prior Supreme Court action. Its alternative partial-payment defense rested on a check lacking an admissibility foundation, bearing an illegible claim number, and unconnected by evidence to the claim or service date. The check also failed to establish timely payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Neither defense satisfied the insurer's prima facie burden.
Trial court, Second Department
Sep 16, 2022
2022 NY Slip Op 50873(U)
Insurer prevailed
The provider was collaterally estopped from contesting its EUO nonappearance by a prior order denying its motion to compel arbitration. The Civil Court, Queens County, granted the insurer's unopposed summary judgment motion and dismissed the complaint. The Supreme Court order did not grant a default judgment, so the insurer failed to establish res judicata. Collateral estoppel nevertheless applied because the prior proceeding necessarily resolved the same EUO issue, and the provider had a full and fair opportunity to contest it. Failure to comply with the EUO requirement breached a condition precedent to indemnification. The insurer also established timely denial of the claim on the nonappearance ground.
Trial court, Second Department
Sep 14, 2022
2022 NY Slip Op 50867(U)
Provider prevailed
The insurer waived its assignment objection and failed to support its medical-necessity defense with a nonconclusory opinion. The Civil Court, Queens County, denied the insurer's summary judgment motion and granted the provider's cross motion for payment of prescribed medication. Without deciding whether a minor could validly execute the assignment under 11 NYCRR 65-3.11 (a), the court found that the insurer's failure to seek timely verification or object waived assignment deficiencies. The physician's concerns about efficacy and side effects were conclusory and did not sufficiently establish lack of medical necessity. Although the denial was timely, the provider's bill and the denial established receipt and nonpayment, and the unsupported medical-necessity defense did not defeat the provider's entitlement to judgment.
