No-Fault Case Law
Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))
August 2, 2019
The provider's tolling challenge failed because the insurer submitted EUO scheduling letters whose sufficiency was not disputed. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint for the assignor's EUO nonappearances and denying the provider's cross motion. The provider correctly argued that certain delay letters did not toll the time to pay or deny the claims. But the insurer also submitted EUO scheduling letters mailed by its retained law firm, and the provider raised no issue concerning those letters' sufficiency. The court declined to consider the provider's remaining contention because it was raised for the first time on appeal.
Nica Acupuncture, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51271(U))
August 2, 2019
The insurer's summary judgment dismissal based on the assignor's failure to appear for duly scheduled EUOs was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co., decided the same day, No. 2017-1778 K C.
NL Quality Med., P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51269(U))
August 2, 2019
The insurer's summary judgment dismissal based on the assignor's failure to appear for duly scheduled EUOs was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co., decided the same day, No. 2017-1778 K C.
SS Med. Care, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51268(U))
August 2, 2019
The insurer's preparation of a declaratory judgment action did not reasonably excuse its failure to oppose the provider's summary judgment motion. The Appellate Term, Second Department, reversed the order vacating the provider's judgment and dismissing the complaint, and denied the insurer's motion to stay execution, vacate, and dismiss. A later declaratory judgment found a founded belief that the collision was intentional. Nevertheless, CPLR 5015 (a) (1) required a reasonable excuse for the earlier default. Counsel's conclusory explanation that the declaratory action was being prepared was insufficient, making consideration of potentially meritorious opposition unnecessary. The Supreme Court's temporary stay under CPLR 2201 and 6301 covered pending lawsuits; the provider's action was no longer pending because judgment had already been entered.
SS Med. Care, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51267(U))
August 2, 2019
The insurer failed to excuse its summary judgment default, and later ministerial entry of judgment did not establish a stay violation. The Appellate Term, Second Department, reversed vacatur and dismissal, denying the insurer's motion to stay execution, vacate, and dismiss. Counsel's conclusory statement that a declaratory action was being prepared did not supply a reasonable excuse under CPLR 5015 (a) (1); potentially meritorious opposition was therefore not reached. Before the Supreme Court issued a temporary stay under CPLR 2201 and 6301, the Civil Court had granted summary judgment and the provider had requested judgment entry. The later entry was a ministerial act, and the record showed no party proceedings violating the stay.
Sure Way NY, Inc. v Travelers Ins. Co. (2019 NY Slip Op 51266(U))
August 2, 2019
The insurer's summary judgment motion based on the provider's failure to appear for duly scheduled EUOs was denied on appeal. The Appellate Term, Second Department, reversed the dismissal order for the reasons stated in the companion appeal, Zen Acupuncture, P.C. v Ameriprise Ins. Co., decided the same day, No. 2017-915 K C.
Merrick Med., P.C. v A Cent. Ins. Co. (2019 NY Slip Op 51264(U))
August 2, 2019
The insurer established proper fee schedule payment of one claim and lack of medical necessity for the remaining claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the complaint. A litigation examiner's affidavit established that the partially paid bill had been reimbursed under the workers' compensation fee schedule. For the other claims, affirmed peer review and IME reports supplied factual bases and medical rationales for finding the services unnecessary, and the provider did not rebut that showing. The provider did not challenge the Civil Court's CPLR 3212 (g) findings that the insurer was otherwise entitled to dismissal. The court reached no other issue.
Zen Acupuncture, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 51262(U))
August 2, 2019
The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims. The Appellate Term, Second Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed, leaving both sides' motions denied. The late initial request prevented the insurer from obtaining dismissal based on the provider's EUO nonappearances. The provider independently failed to establish its prima facie entitlement to summary judgment: its proof showed neither that the claims had been untimely denied nor that timely denial forms were conclusory, vague, or without merit as a matter of law.
Oriental Health Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51261(U))
August 2, 2019
The insurer's summary judgment dismissal based on charges exceeding the workers' compensation fee schedule was affirmed. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion for the reasons stated in the companion appeal, BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., decided the same day, No. 2017-905 K C.
BQE Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2019 NY Slip Op 51260(U))
August 2, 2019
An insurer may use the workers' compensation fee schedule for acupuncture by chiropractors to reimburse a licensed acupuncturist. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the provider's complaint and denying the provider's cross motion. The provider challenged fee reductions based on the schedule for acupuncture performed by chiropractors. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the court rejected that challenge as a matter of law. The insurer's proof also created a presumption that the denial forms had been timely mailed.