Appellate Division, Second Department
May 17, 2023
2023 NY Slip Op 02689
Insurer prevailed
The insurer established timely EUO notices and denials, proper follow-up, and the assignor's nonappearances. The provider sued for assigned no-fault benefits, and the insurer sought summary judgment based on three missed EUOs. Under 11 NYCRR 65-3.5 (b), 11 NYCRR 65-3.6 (b), and 11 NYCRR 65-3.8 (a), the insurer showed timely and proper mailing, follow-up verification requests, and denial after the last scheduled EUO. Failure to submit to a policy-required EUO materially breaches the policy and precludes recovery. The provider raised no triable issue. The Appellate Division, Second Department, reversed the Appellate Term's order, granted the insurer's motion dismissing the complaint, and denied the provider's cross motion; the insurer's remaining contention was not reached.
Appellate Term, Second Department
May 26, 2023
2023 NY Slip Op 50587(U)
Provider prevailed
A provider bears the ultimate burden of proving medical necessity by a preponderance of the evidence at a no-fault trial. The insurer first must rebut the presumption of medical necessity attaching to the claim form. Medical necessity was the sole issue stipulated for the nonjury trial. The Appellate Term, Second Department, affirmed the judgment for the provider because the record supported the Civil Court's assessment of the expert witnesses' credibility and the trial proof. Although appellate fact-review authority was as broad as the trial court's, credibility findings received substantial deference because the trial court observed the witnesses.
Trial court, Second Department
May 28, 2023
2023 NY Slip Op 50521(U)
Provider prevailed
The insurer's EUO and medical necessity challenges failed because they were not preserved at the required arbitration levels. The Supreme Court, Kings County, denied the unopposed CPLR 7511 petition, dismissed the proceeding, and confirmed the master award for the provider's medical equipment rentals. The insurer had not challenged the EUO determination before the master arbitrator or presented its peer review defense to the hearing arbitrator, although the denials predated the hearing and leave to submit them could have been sought. Under 11 NYCRR 65-4.10 (c) (6), master review was confined to matters presented below or included in the award. The provider's nonappearance did not relieve the insurer of establishing grounds for vacatur.
Trial court, Second Department
May 28, 2023
2023 NY Slip Op 50527(U)
Provider prevailed
An insurer cannot obtain vacatur of a no-fault award on medical necessity grounds omitted from its denials. The insurer sought to vacate a master arbitration award affirming payment for rented medical equipment, and the provider did not oppose the petition. The Supreme Court, Kings County, applied CPLR 3215 (f) and CPLR 409 (b) and required a prima facie showing supporting vacatur despite the nonappearance. The denials asserted fee schedule and causal relationship defenses, but the petition challenged only medical necessity and did not challenge the arbitrator's causation analysis. Finding no showing under CPLR 7511 (b) (1), the court denied the petition, dismissed the proceeding, and confirmed the master award in the provider's favor.
Trial court, Second Department
May 28, 2023
2023 NY Slip Op 50538(U)
Provider prevailed
A Workers' Compensation Board rejection does not restart the insurer's 30-day period to deny a claim for lack of medical necessity. The Supreme Court, Kings County, denied the insurer's CPLR article 75 petition and granted the provider's cross-petition to confirm the MRI award. The original timely denials asserted workers' compensation coverage; later medical necessity denials were issued more than eight months after complete proof of claim. The Board's decision was not additional verification under 11 NYCRR 65-3.5 (b), and the defense was precluded under 11 NYCRR 65-3.8 (a) (1). Interest ran from the arbitration request under 11 NYCRR 65-3.9 (c), because arbitration began over 30 days after the timely denials. The provider also received arbitration and judicial attorney's fees.
Trial court, Second Department
May 25, 2023
2023 NY Slip Op 50506(U)
Provider prevailed
The insurer's challenge to the arbitrator's finding of insufficient causation evidence raised a factual issue, not an error of law. The Supreme Court, Kings County, dismissed the insurer's vacatur petition and granted the provider's cross-petition confirming an award for a knee MRI. The insurer supplied no supporting medical or expert evidence and failed to identify specific EUO testimony supporting its lack-of-coverage defense. Under 11 NYCRR 65-4.10 (a) (4), factual errors do not constitute errors of law; the master arbitrator properly declined to reweigh evidence. Interest accrued from the arbitration request because it followed the timely denial by more than 30 days. The court also awarded attorney's fees under 11 NYCRR 65-4.10 (j) (4), applying 11 NYCRR 65-4.6 (c) without counsel's time records.
Trial court, Second Department
May 10, 2023
2023 NY Slip Op 50431(U)
Split result
CPLR 3211 (e) bars successive pre-answer motions to dismiss, although dismissal may later be sought by summary judgment. The Civil Court, Richmond County, denied the insurer's renewed motion to dismiss for lack of personal jurisdiction and failure to state a cause of action. Its affidavit predated the accident, and its website screenshot was inadmissible; even absent the single-motion bar, the insurer failed to establish entitlement to dismissal. Summary judgment under CPLR 3212 was also denied because issue had not been joined. The provider's cross-motion for a default judgment was denied because the insurer moved within the 30 days allowed for answering under the prior order. The insurer was directed to answer within 14 days, with leave for the provider to renew upon noncompliance.
