No-Fault Decisions, December 2022

Appellate Term, Second Department Dec 29, 2022 2022 NY Slip Op 51384(U) Insurer prevailed

MUA Chiropractic Healthcare, PLLC v Nationwide Mut. Ins. Co.

An insurer need not state objective reasons for provider EUOs to establish prima facie entitlement to summary judgment for nonappearance. The District Court denied the insurer's motion to dismiss the provider's assigned no-fault claims but implicitly found under CPLR 3212 (g) that timely mailing of scheduling letters and denials, and the provider's nonappearances, were established. It left only the reasonableness of the requests for trial. The provider challenged the insurer's objective basis, not its prima facie showing. Following Interboro Ins. Co. v Clennon, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion because the provider raised no triable issue.

Appellate Term, Second Department Dec 23, 2022 2022 NY Slip Op 51376(U)

JFL Med. Care, P.C. v Wesco Ins. Co.

The insurer failed to prove denial of one claim or materiality of the alleged misrepresentation supporting denial of the other. Fraudulent policy procurement was subject to preclusion, and the insurer offered no denial for the first claim. The second was timely denied, but the underwriting supervisor's assertion that the vehicle's livery use was excluded lacked underwriting documentation establishing materiality. The provider failed to establish untimely or legally deficient denials supporting its cross motion. The Appellate Term, Second Department, modified the order to deny the insurer's fraudulent-procurement branch, affirmed denial of the provider's cross motion, and remitted the undecided fee-schedule branch, a defense not subject to preclusion under 11 NYCRR 65-3.8 (g), to the Civil Court.

Appellate Term, Second Department Dec 23, 2022 2022 NY Slip Op 51378(U) Provider prevailed

MSB Physical Therapy, P.C. v Nationwide Ins.

The insurer failed to establish timely denial after the provider's second EUO nonappearance or raise a triable issue on that defense. The provider sought assigned no-fault benefits, and the insurer moved for summary judgment based on missed EUOs. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the insurer's failure to demonstrate that its defense was not precluded required denial of its motion. Its papers also failed to defeat the provider's cross motion. The Appellate Term, Second Department, affirmed denial of the insurer's motion and the grant of summary judgment to the provider, expressly declining to review the provider's unchallenged prima facie showing.

Appellate Term, Second Department Dec 23, 2022 2022 NY Slip Op 51381(U) Split result

MSB Physical Therapy v Nationwide Ins.

The insurer failed to establish timely denial after alleged EUO nonappearances, and the provider failed to establish entitlement to summary judgment. The insurer sought dismissal of assigned no-fault claims based on missed EUOs but did not demonstrate that its defense escaped preclusion. The provider's cross motion likewise failed to establish that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. Neither side was entitled to summary judgment. The Appellate Term, Second Department, modified the order to deny the insurer's motion and otherwise affirmed, leaving intact denial of the provider's cross motion.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 51213(U) Split result

FJL Med. Servs., P.C. v Nationwide Ins.

⚠ Criticized by MLG Med. P.C. v Nationwide Mut. Ins. Co. (2023 NY Slip Op 23199)

An insurer cannot extend the claim determination toll after a second EUO nonappearance by unilaterally scheduling further EUOs. The insurer recorded four provider nonappearances and denied the claim more than 30 days after the second. Although the provider requested adjournments, the insurer did not claim to have agreed to reschedule any EUO. Additional opportunities to appear did not continue the toll under 11 NYCRR 65-3.6 (b). The Appellate Term, Second Department, modified the order to deny the insurer summary judgment because it failed to establish timely denial and freedom from preclusion of its EUO defense. Denial of the provider's cross motion remained intact because its affidavit established neither an untimely denial nor a timely denial that was legally insufficient.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 22383 Provider prevailed

Ezra Supply, Inc. v Nationwide Affinity Ins. Co. of Am.

An insurer's 30-day period to pay or deny resumes at the second EUO nonappearance when no other verification request is outstanding. Under 11 NYCRR 65-3.8 (a) (1) and 65-3.6 (b), additional EUO opportunities do not continue the verification toll beyond the single follow-up request. Here, the assignor's second nonappearance on May 8 triggered a June 7 deadline, but the insurer denied the claims on June 23 after two further nonappearances. The insurer treated all four dates as nonappearances rather than rescheduling the second EUO, which could have continued the toll. It failed to establish a timely denial preserving the EUO defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer summary judgment.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 51221(U) Split result

Orthotics & Professional Supply, Ltd. v Country-Wide Ins. Co.

The provider's 17-year delay in seeking judgment on a summary judgment order required tolling statutory no-fault interest during that delay. The Appellate Term, Second Department, modified the order to grant the insurer's recalculation motion to that extent. Under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h), now 11 NYCRR 65-3.9 (d), interest penalizes nonpayment but is tolled for unreasonable litigation delay. Unlike settlements governed by CPLR 5003-a (a), summary judgment orders carry no statutory payment mandate. Interest awarded for the period before the order remained intact because no unreasonable delay was found. The provider also prevailed on its CPLR 5019 (a) cross motion adding interest between its judgment application and the clerk's entry, when no unreasonable delay was found.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 51216(U) Insurer prevailed

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.

The insurer's summary judgment dismissing the provider's assigned no-fault claims was affirmed. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer's motion and denying the provider's cross motion for summary judgment for the reasons stated in Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co., without identifying the underlying defense or supplying independent reasoning.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 51212(U) Split result

American Kinetics Lab, Inc. v Travelers Ins. Co.

The insurer failed to establish verification requests to the provider or mailing of requests addressed to the prescribing doctor. The letters sent to the provider sought only the doctor's explanation of how medical supplies affected treatment. They were delay letters under 11 NYCRR 65-3.6 (b), and their terms required no provider response. Although verification could be sought directly from the doctor, the insurer neither alleged nor proved mailing to that doctor. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment because outstanding verification did not establish prematurity. Denial of the provider's cross motion remained intact because its proof established neither untimely denials nor timely denials that were conclusory, vague or legally meritless.

Appellate Term, Second Department Dec 9, 2022 2022 NY Slip Op 51217(U) Insurer prevailed

Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co.

Bringing requested documents to an EUO while refusing to let the insurer copy them does not constitute providing those documents. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer's cross motion for summary judgment dismissing the complaint for failure to provide verification and denying as moot the provider's motion to dismiss affirmative defenses. The provider owner's affidavit did not raise a triable issue concerning whether verification had been supplied. Exhibits attached to the insurer's reply likewise did not establish the provider's asserted response. The court rejected reliance on documents brought to the EUO where the insurer was not allowed to copy them.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51247(U) Provider prevailed

NCT Diagnostics, Inc. v Countrywide Ins. Co.

The provider's postsettlement no-fault interest was improperly tolled because the insurer did not establish that the provider prevented payment. The insurer failed to pay a stipulated settlement, and judgment was entered under CPLR 5003-a with simple interest from settlement. On the provider's CPLR 5019 (a) motion, the Civil Court, Queens County, directed recalculation at 2% per month, compounded, but sua sponte tolled interest through the motion date. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, and remitted for a new judgment. Under CPLR 5003-a (e), the prevailing provider was not required to demand payment. The insurer's obligation arose upon settlement, and the record supplied no basis for tolling interest.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51251(U) Insurer prevailed

Healthwise Med. Assoc., P.C. v Nationwide Ins.

The provider's claims were barred by a prior no-coverage declaration obtained by the appearing insurer, which proved it was the proper insurer. The provider sued a different named insurer, but the proper insurer voluntarily appeared, asserting that it had been incorrectly sued. It had already obtained an unopposed declaration in the Supreme Court, Nassau County, that it owed the provider and assignor no coverage for the loss. The Appellate Term, Second Department, added the appearing insurer to the caption and affirmed summary judgment dismissing the complaint, denial of the provider's cross motion and denial as moot of its separate motion to dismiss affirmative defenses. Res judicata applied because recovery would impair rights established by the declaration, and sufficient evidence identified the proper insurer.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51253(U) Insurer prevailed

Medical Supply of NY Corp. v Nationwide Ins. Co.

The provider's claims were barred by res judicata because the insurer established that they concerned the accident covered by a prior declaration. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for, in effect, summary judgment dismissing the complaint. A prior unopposed summary judgment order in the Supreme Court, Onondaga County, declared no reimbursement obligation to the provider for the August 22, 2018 accident under the same claim number. The provider's complaint alleged an August 24, 2018 accident, but all documentary evidence created by persons with personal knowledge identified August 22. The complaint's contrary allegation lacked personal knowledge and did not raise a factual issue concerning whether the claims arose from the same transaction.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51267(U) Insurer prevailed

American Kinetics Lab, Inc. v GEICO Gen. Ins. Co.

The provider's action was premature because the insurer timely requested verification and had not received the requested materials. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint without prejudice. The insurer's proof established timely mailing of both initial and follow-up verification requests and nonreceipt of the verification. The provider raised no triable issue in opposition. Following Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., the outstanding verification required dismissal without prejudice.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51269(U) Insurer prevailed

Greenway Med. Supply Corp. v Repwest Ins. Co.

The defendant claims handler established that it had issued no automobile policy covering the accident and owed no no-fault coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted its cross motion for summary judgment dismissing the provider's complaint. The record showed that the vehicle was owned and self-insured by a rental company, while the defendant only processed claims on that company's behalf. The Civil Court, Kings County, had denied dismissal based on a perceived factual issue concerning the limitations period. The appellate court also explained that CPLR 213 (2)'s six-year contract period applies to claims against insurers, whereas CPLR 214 (2)'s three-year period would govern any claims accruing against the self-insurer upon submission of bills.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51271(U) Insurer prevailed

NGM Acupuncture, P.C. v Nationwide Ins. Co.

The insurer timely denied three claims based on the provider's EUO nonappearances, with tolling preserving the deadline for one claim. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting summary judgment dismissing the first, fifth and seventh causes of action. The fifth and seventh claims were denied within 30 days of receipt. An initial EUO had been scheduled before receipt of the first claim, so the time to pay or deny that claim was tolled upon receipt. The insurer timely scheduled a follow-up EUO after the initial nonappearance, continuing the toll under 11 NYCRR 65-3.6 (b). Its denial within 30 days of the second nonappearance was therefore timely.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51256(U) Insurer prevailed

J.C. Healing Touch Rehab, P.C. v MVAIC

The provider's sole appellate contention concerning the statute of limitations was improperly raised for the first time on appeal. MVAIC sought summary judgment dismissing the assigned no-fault action on several grounds, including expiration of the limitations period, and the provider cross-moved for summary judgment. The Civil Court granted MVAIC's motion and denied the provider's cross motion. The Appellate Term, Second Department, affirmed, finding the provider's limitations contention unpreserved and, in any event, without merit under Kings Highway Diagnostic Imaging, P.C. v MVAIC.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51250(U) Provider prevailed

Comprehensive Med. Assist, P.C. v State Farm Fire & Cas. Co.

The insurer's summary judgment motion was untimely because its moving papers did not show good cause for exceeding the 120-day deadline. The motion, based on a declaratory judgment's asserted preclusive effect, was made 455 days after the notice of trial and 290 days after the declaratory judgment order. CPLR 3212 (a) required good cause for the delay. The insurer first invoked a stay in reply, without any indication that the provider could submit a surreply; the motion was late even after the stay expired. The Appellate Term, Second Department, modified the order by striking the merits determination and otherwise affirmed the denial as untimely, leaving the declaratory judgment's preclusive effect unresolved.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51246(U) Insurer prevailed

Heal-Rite, P.T., P.C. v State Farm Mut. Auto. Ins. Co.

The insurer established timely mailing of EUO scheduling letters and denials and sufficient proof of nonappearance. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the provider's assigned no-fault claims on an EUO nonappearance defense. An affidavit describing standard office practices and procedures established timely mailing. Mailing logs supplied additional proof that the documents were delivered to the post office on the stated dates. The affirmation of the attorney scheduled to conduct the EUOs sufficiently established nonappearance. The provider failed to raise a triable issue in opposition to the insurer's prima facie showing.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51248(U) Provider prevailed

Metro Med. Diagnostics, P.C. v Country-Wide Ins. Co.

The provider's statutory no-fault interest was improperly tolled after settlement because the insurer did not show any impediment to payment. The Appellate Term, Second Department, reversed the judgment, insofar as appealed from, and remitted for entry of a new judgment. The insurer had not paid a settlement, and the Civil Court, Queens County, initially awarded simple interest. On the provider's CPLR 5019 (a) correction motion, the Civil Court directed interest at 2% per month, compounded, but tolled accrual from settlement until the motion. Under CPLR 5003-a (e), the insurer was obligated to pay without a demand from the prevailing provider. Because the insurer did not show that the provider prevented payment, the toll was erroneous.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51249(U) Insurer prevailed

AKNY Physical Therapy, PLLC v Lancer Ins. Co.

The provider failed to establish that its cross motion met the stipulated schedule or offer a reasonable excuse for filing it late. The Appellate Term, Second Department, affirmed the Civil Court, Kings County, order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion as untimely. The parties had stipulated to the schedule more than a year earlier, and the provider had seven months to cross-move. On appeal, the provider did not challenge the insurer's prima facie showing or contend that its cross motion, also serving as opposition, raised a triable issue. Its request to remit both motions supplied no basis to disturb the refusal to review its papers.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51252(U) Insurer prevailed

First Spine Chiropractic of NY, P.C. v Nationwide Affinity Ins. Co. of Am.

The insurer's summary judgment dismissing claims for the assignor's EUO nonappearances was affirmed on proof of timely denial. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion. Rejecting the provider's sole appellate contention, it found the claims specialist's and mailing manager's affidavits sufficient to establish timely denial and found no triable issue in opposition.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51268(U) Insurer prevailed

Spring Rehab PT P.C. v Nationwide Affinity Ins. Co.

The insurer's affidavits established timely mailing of EUO notices and denials and the assignor's failure to appear for the EUOs. The Appellate Term, Second Department, reversed the Civil Court, Kings County, order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. An affidavit describing standard office practices and procedures established timely mailing of the scheduling letters and denial forms. Affidavits from the attorneys scheduled to conduct the EUOs, together with certified transcripts of their statements of nonappearance, sufficiently established the assignor's nonappearances. The insurer thus demonstrated prima facie entitlement to summary judgment on its EUO defense, and the provider failed to raise a triable issue in opposition.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51270(U) Split result

Spring Rehab, P.T., P.C. v Hereford Ins. Co.

The insurer's letters did not establish proper verification requests, and the provider also failed to establish entitlement to summary judgment. The Appellate Term, Second Department, modified the Civil Court, Kings County, order to deny the insurer's cross motion, while leaving denial of the provider's motion intact. The insurer claimed that the action was premature because verification remained outstanding. Its letters for the fourth cause of action were addressed to another provider; the remaining letters merely stated that documents were awaited without actually requesting verification from the plaintiff. The provider's proof did not establish that the claims were untimely denied or that timely denials were conclusory, vague or without merit as a matter of law.

Appellate Term, Second Department Dec 2, 2022 2022 NY Slip Op 51272(U) Provider prevailed

Concord Direct, Inc. v Ameriprise Ins. Co.

The insurer failed to establish a material misrepresentation concerning a covered vehicle's garaging or a covered driver's address. The Appellate Term, Second Department, affirmed the Civil Court, Queens County, order denying the insurer summary judgment dismissing the provider's assigned no-fault claims. Neither the assignor's EUO testimony nor the policy declaration page established a misrepresentation in the insurance application. Following Interboro Ins. Co. v Fatmir, materiality required underwriting documentation showing that the insurer would not have issued the same policy had the correct information been disclosed. The underwriting eligibility guidelines submitted with the motion did not make that showing, so the insurer failed to establish materiality in any event.

Trial court, First Department Dec 21, 2022 2022 NY Slip Op 51304(U) Provider prevailed

Country-Wide Ins. Co. v Henderson

The insurer failed to document a consistent objective justification for its EUO request, and its summary judgment motion was premature. Seeking a declaration of no coverage based on the assignor's two EUO nonappearances, the insurer offered conclusory assertions that accident facts needed clarification and treatment was delayed. Its bills did not establish the earliest treatment date, and counsel offered different explanations on reply. Under 11 NYCRR 65-3.5 (e), a provider assignee's challenge required the insurer to identify its specific objective justification. The Supreme Court, New York County, denied summary judgment without prejudice under CPLR 3212 (f) because discovery seeking that justification remained unanswered. Denial extended to the provider that did not oppose the motion; the court rejected the opposing providers' scheduling-timeliness arguments.

Trial court, First Department Dec 20, 2022 2022 NY Slip Op 51289(U) Insurer prevailed

Country-Wide Ins. Co. v Duff

An assignor's two unjustified IME nonappearances defeat all providers' claims when the IME was duly scheduled within 15 days of an NF-3 claim's receipt. The Supreme Court, New York County, granted the insurer default judgment against four nonappearing providers and summary judgment against the assignor and remaining providers. Under 11 NYCRR 65-3.5 (a) and (b), receipt of an NF-3 claim, rather than the NF-2 application, triggered the request period. The insurer need not establish timeliness separately for each provider or bill. Its supervisor's affidavit, bill copies, and counsel's affirmation sufficiently authenticated the claims used to establish timeliness. The court rejected prematurity under CPLR 3212 (f): defendants had a year after receiving allegedly incomplete discovery responses to pursue further disclosure but made no known effort.

Trial court, First Department Dec 14, 2022 2022 NY Slip Op 51273(U) Split result

American Tr. Ins. Co. v Graves

The insurer could not obtain default judgments against defendants served beyond the 120-day deadline without an extension. The Supreme Court, New York County, denied default judgment under CPLR 3215 against the injured claimant and three providers because service was untimely under CPLR 306-b and no extension was sought. The insurer also waived the claimant's one-day answer default by not rejecting the answer. Default judgment was granted against four timely served, nonanswering providers upon proof of timely IME scheduling under 11 NYCRR 65-3.5 and two unjustified nonappearances. The insurer was required to renew its motion against the three late-served providers within 30 days of entry or face dismissal as to them.