The Appellate Term, Second Department, held an attorney's affirmation that he was present for the scheduled EUOs and the provider did not appear sufficient without transcripts (Brefni Chiropractic v State Farm). Declining to follow East Coast Acupuncture v Hereford, Civil Court, Kings County, held that 11 NYCRR 65-3.8 (g) (1) leaves a fee schedule defense subject to the 30-day rule, as it lacks 65-3.8 (e)'s express nonpreclusion language (Blano Med. v Hereford). Civil Court, Queens County, distinguished Burke Physical Therapy v State Farm, where verification was first sought after the EUO, holding that a request within 15 days after the EUO tolled the insurer's time (Queens Radiology v GEICO).
Our summary of the month’s decisions, not the courts’ words.
Appellate Term, Second Department
Sep 5, 2025
2025 NY Slip Op 51518(U)
Insurer prevailed
The insurer's attorney affirmation alone established the provider's EUO nonappearance; corroborating transcripts were unnecessary. Counsel affirmed presence at the office on both scheduled dates, readiness to conduct the EUOs or assign another attorney, and the provider's failure to appear. The affirmation was not facially unworthy of belief or incredible as a matter of law, and the provider's challenge to counsel's recollection raised no triable issue. The provider also did not challenge the CPLR 3212 (g) findings establishing timely and proper mailing of scheduling letters and denials. 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 29, 2025
2025 NY Slip Op 51540(U)
Provider prevailed
A fee schedule defense remains subject to the 30-day denial requirement under 11 NYCRR 65-3.8 (g) (1). At trial, the insurer abandoned its medical necessity defense and sought to assert a fee schedule defense without having issued a denial on that ground. The Civil Court, Kings County, construed the regulation's text and adoption history as preserving the denial requirement and limiting withholding to the excess portion of a bill. It distinguished the express nonpreclusion language for coverage defenses in 11 NYCRR 65-3.8 (e). Because the insurer conceded that it had issued no fee schedule denial and presented no other defense, the court granted the provider's motion for a directed verdict and entered judgment for the provider.
Trial court, Second Department
Sep 25, 2025
2025 NY Slip Op 51577(U)
Provider prevailed
The insurer's summary judgment motion was denied as untimely because it failed to show good cause for filing beyond the 120-day deadline. The insurer sought dismissal based on the assignor's failure to appear for EUOs, but moved more than two years after the provider filed its notice of trial. Applying CPLR 3212 (a) and Brill v City of New York, the Civil Court, Kings County, required a satisfactory explanation for the delay. The insurer's reliance on court-system and private docketing records did not establish due diligence in monitoring the case. Its request for an extension and good-cause arguments also appeared only in reply, depriving the provider of an adequate opportunity to respond. The court denied the motion and set the matter for trial.
Trial court, Second Department
Sep 21, 2025
2025 NY Slip Op 51823(U)
Insurer prevailed
The insurer established that the provider failed to complete verification within 120 days, warranting summary judgment. Written verification requests preceded the EUO, distinguishing Burke Physical Therapy, P.C. v State Farm Mut. Auto. Ins. Co. The Civil Court, Queens County, found that timely additional verification after the EUO tolled the 30-day payment period under 11 NYCRR 65-3.5 (b), notwithstanding 11 NYCRR 65-3.8 (a) (1). Follow-up was timely under 11 NYCRR 65-3.6 (b), verification remained outstanding, and denial was justified under 11 NYCRR 65-3.5 (o). The provider raised no triable issue and lacked a personal-knowledge affidavit establishing timely, overdue bills. The court granted the insurer's motion and denied the provider's cross-motion as moot.
Trial court, Second Department
Sep 18, 2025
2025 NY Slip Op 51476(U)
Split result
The provider was permitted to add the transit authority absent prejudice; the uninvolved bus defendant obtained dismissal. The Civil Court, Kings County, dismissed the complaint with prejudice against MTA Bus because no vehicle it owned, operated or insured was involved, and MTA agencies were not responsible for each other's claims. It granted the provider's cross-motion to add the New York City Transit Authority under CPLR 1003 and CPLR 3025 (b), finding no prejudice or surprise. Expiration of the limitations period was not apparent; filing the motion with a supplemental summons and amended complaint tolled that period under Perez v Paramount Communications. The court disregarded the missing affidavit of cross-motion service as nonprejudicial under CPLR 2001.
