Appellate Term, Second Department
Jun 14, 2024
2024 NY Slip Op 50803(U)
Split result
⚠ Reversed by Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. (2025 NY Slip Op 50194(U))
The provider's affidavit raised a presumption that the requested verification had been mailed to and received by the insurer. The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment based on the provider's alleged failure to respond to timely verification requests, while affirming denial of the provider's cross motion. Denial of the insurer's summary judgment motion in a separate declaratory judgment action had no preclusive effect because it was not a final determination on the merits. The court therefore did not reach whether Civil Court properly declined to consider that decision in the provider's amended cross motion.
Appellate Term, Second Department
Jun 14, 2024
2024 NY Slip Op 50804(U)
Insurer prevailed
The provider's challenge to the insurer's fee-schedule defense was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims. Civil Court had granted the insurer's motion on policy-exhaustion and fee-schedule grounds. The insurer failed to lay a sufficient foundation under CPLR 4518 (a) for its payment log to prove that the listed payments to the provider had been made. Nevertheless, the provider's challenge to the alternative fee-schedule ground was unpreserved, and its remaining contention lacked merit.
Appellate Term, Second Department
Jun 7, 2024
2024 NY Slip Op 50799(U)
Split result
MVAIC's time to deny or seek verification runs from claim receipt, regardless of whether it has determined covered-person status. The Appellate Term, Second Department, modified the order to deny MVAIC's cross motion for summary judgment and affirmed denial of the provider's motion. MVAIC failed to establish proper denials within 30 days of the last scheduled EUO and thus failed to show its nonappearance defense was unprecluded. A notarized claim notice listing a Brooklyn address established prima facie New York residency, and a household affidavit also attested to residency on the accident date, defeating MVAIC's alternative ground under Insurance Law §§ 5202 (b) and 5221 (b) (2). The provider failed to establish untimely denials or timely denials that were conclusory, vague, or legally meritless.
Trial court, First Department
Jun 28, 2024
2024 NY Slip Op 50820(U)
Provider prevailed
A no-fault arbitrator deciding medical necessity need not require the provider to submit expert evidence rebutting the insurer's peer review. The Civil Court, New York County, denied the insurer's unopposed petition under CPLR 7511 (b) to vacate an award upheld by a master arbitrator. The insurer argued that its peer review shifted the burden to the provider and that the provider's failure to submit an IME report or peer review rendered the award insufficiently final and definite. Those litigation evidentiary standards did not govern arbitration. The arbitrator rationally found that MRI findings supplied a basis for surgery, and the award clearly resolved the controversy and established the parties' rights and obligations.
Trial court, Second Department
Jun 26, 2024
2024 NY Slip Op 50814(U)
Insurer prevailed
The provider's motion to substitute a different insurer was moot because a settlement and discontinuance had disposed of the action. The Civil Court, Kings County, treated the action as disposed despite a stipulation purporting to preserve the index number for service on the correct carrier. The parties' agreement could not bind the court to preserve an action without a defendant. The court deemed moot the amendment motion under CPLR 305 (c), CPLR 2001 and CPLR 3025 (b), and sua sponte vacated an interim notice order issued without awareness of the discontinuance and prior service on the proposed insurer. Applying CPLR 5019 (a), it characterized the vacatur as correction of a mistake or irregularity affecting no substantial right.
Trial court, Second Department
Jun 12, 2024
2024 NY Slip Op 50723(U)
Insurer prevailed
The insurer obtained sanctions against providers' counsel for withholding partial satisfactions and pursuing contempt to harass it. After judgments confirming no-fault awards, counsel withheld partial satisfactions despite payments received and CPLR 5020 (a)'s filing requirement. The Supreme Court, Kings County, awarded the insurer attorney's fees and imposed sanctions against both attorneys under 22 NYCRR 130-1.1. It calculated postjudgment interest under Insurance Law § 5106 (a) at two percent monthly on overdue benefits and under CPLR 5004 at nine percent annually on the remaining judgment components. The providers withdrew their contempt motions; the insurer's requests to quash subpoenas, obtain protective orders, stay execution and compel satisfactions were denied as academic after complete satisfactions were filed.
Trial court, Second Department
Jun 10, 2024
2024 NY Slip Op 50688(U)
Provider prevailed
The insurer's EUO defense failed because its second scheduling letter was mailed 15 days after the provider's first nonappearance. The Civil Court, Richmond County, denied the insurer's summary judgment motion and granted the provider's cross motion for payment of the equipment bill. The court treated the 15-day interval as violating the follow-up requirements of 11 NYCRR 65-3.6, preventing the insurer from establishing a proper EUO denial. The insurer's own exhibits established receipt of the bill, satisfying the provider's prima facie showing. Because the denial was improper and no triable issue remained, judgment was awarded to the provider.
Trial court, First Department
Jun 10, 2024
2024 NY Slip Op 51364(U)
Split result
The insurer's EUO letters failed to give a specific objective justification tied to the claim, defeating summary judgment for nonappearance. The Civil Court, New York County, denied both parties' summary judgment motions. Although mailing and nonappearance were established, the insurer's letters listed generalized concerns and addressed several injured persons without claim-specific facts, failing 11 NYCRR 65-3.5 (e). Many requested corporate and financial documents appeared directed toward pre-action discovery of a Mallela defense rather than prompt claim resolution; the provider had objected to the request's scope. The provider's cross motion failed under CPLR 3212 because it lacked a party affidavit from someone with personal knowledge of the claim's facts. The court did not address policy exhaustion.
