No-Fault Case Law
Matter of Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2018 NY Slip Op 08641)
December 19, 2018
The master arbitrator's confirmation of an award denying benefits for exhausted policy limits had evidentiary support and a rational basis. The arbitrator denied the provider's acupuncture claims after finding that the policy was exhausted when the last bill was received and that an award exceeding contractual limits would exceed the arbitrator's authority under 11 NYCRR 65-4.10 (a) (2). The provider sought vacatur under CPLR 7511, arguing that the award was irrational and legally incorrect. The Appellate Division, Second Department, affirmed denial of the petition and confirmation of the award, applying the narrow grounds for vacatur and declining to decide whether the master arbitrator erred in applying the law.
Craniofacial Pain Mgt. v Allstate Ins. Co. (2018 NY Slip Op 51825(U))
December 7, 2018
A no-fault money judgment bears simple interest at nine percent annually from entry until payment under CPLR 5003 and 5004. The Appellate Term, Second Department, modified the order to deny the insurer's request to toll postjudgment interest and remitted its request for entry of satisfaction for a new determination. No evidence showed that the provider prevented payment, so its delay did not justify tolling. The insurer proved payment through a check endorsed by a marshal under CPLR 5021 (a). Any partial satisfaction must be calculated by deducting the marshal's fee, accrued interest, and poundage from payments received as of the relevant date. The provider was entitled only to simple statutory interest, rather than the interest stated in the levy notice.
Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51824(U))
December 7, 2018
The insurer's CPLR 4404 (b) motion to set aside the nonjury trial decision was granted after its expert witnesses were precluded. The Appellate Term, Second Department, reversed for the reasons stated in the companion appeal decided the same day, No. 2017-562 K C. The matter was remitted for a new trial limited to medical necessity and billing under the workers' compensation fee schedule.
Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51823(U))
December 7, 2018
The insurer's CPLR 4404 (b) motion to set aside the nonjury trial decision was granted after its expert witnesses were precluded. The Appellate Term, Second Department, reversed for the reasons stated in the companion appeal decided the same day, No. 2017-562 K C. The matter was remitted for a new trial limited to medical necessity and billing under the workers' compensation fee schedule.
Market St. Surgical Ctr. v Global Liberty Ins. Co. (2018 NY Slip Op 51822(U))
December 7, 2018
Expert testimony may not be precluded merely for late disclosure without intentional or willful nondisclosure and prejudice. At a nonjury trial, the provider obtained preclusion of the insurer's experts because disclosure was untimely and sent by fax despite counsel's rejection of that method. Under CPLR 3101 (d) (1), expert disclosure has no specified deadline, and the record showed neither intentional or willful delay nor prejudice to the provider. Although disclosure should have been earlier and mailed as requested, preclusion was error. The Appellate Term, Second Department, reversed, granted the insurer's CPLR 4404 (b) motion, and remitted for a new trial limited to medical necessity and workers' compensation fee-schedule billing.
Empire Med. & Rehabilitation, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51821(U))
December 7, 2018
The provider's action was dismissed after it missed the CPLR 3216 demand deadline and failed to oppose the insurer's dismissal motion. The provider filed its notice of trial 158 days after receiving a 90-day demand and had not timely moved to vacate the demand or extend the period under CPLR 2004. It therefore had to demonstrate both a justifiable excuse and a meritorious cause of action under CPLR 3216 (e). By submitting no opposition, it established neither ground for denying dismissal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's CPLR 3216 motion.
Bronx Neurodiagnostics, P.C. v GEICO Ins. Co. (2018 NY Slip Op 51820(U))
December 7, 2018
The CPLR 3216 demand period runs from receipt, so the five additional days for mailing under CPLR 2103 (b) (2) do not apply. The provider filed its notice of trial 94 days after receiving the insurer's 90-day demand and had not timely sought vacatur or an extension under CPLR 2004. Under CPLR 3216 (e), it then had to show both a justifiable excuse for delay and a meritorious cause of action. It failed to oppose the dismissal motion and demonstrated no ground to deny it. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to dismiss.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51815(U))
December 7, 2018
The insurer failed to prove that Florida law applied or that admissible payment records established exhaustion of policy limits. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment, while affirming denial of the provider's motion. The insurer offered no admissible evidence establishing the applicability of Florida law and its asserted policy limit. Even assuming that law applied, its affidavits did not establish the annexed payment log as a business record under CPLR 4518 (a). The provider likewise failed to establish that its claims were not timely denied or that timely denials were conclusory, vague, or legally meritless.
A & F Med., P.C. v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51812(U))
December 7, 2018
The insurer was precluded from asserting an EUO nonappearance defense because it failed to send the provider a required delay letter. Under 11 NYCRR 65-3.6 (b), the insurer had to send that letter when it sent the assignor a second EUO scheduling letter. Its failure to do so prevented it from establishing that the time to pay or deny the provider's claims was properly tolled. The Appellate Term, Second Department, affirmed the judgment awarding benefits to the provider, entered after denial of the insurer's summary judgment motion and grant of the provider's cross motion.
Action Potential Chiropractic, PLLC v Travelers Ins. Co. (2018 NY Slip Op 51811(U))
December 7, 2018
The provider failed to establish that its claim was untimely denied or that a timely denial was legally insufficient. The Appellate Term, Second Department, reversed the judgment awarding benefits, denied the provider's summary judgment motion, and remitted the insurer's unresolved EUO nonappearance branch for determination. The insurer also invoked collateral estoppel based on an order in a separate action finding nonappearance at the same EUOs. Civil Court properly found that the insurer had not established that order's preclusive effect. However, it had not addressed the independent proof offered in support of the condition-precedent defense. That branch remained to be decided without reliance on the prior order.