No-Fault Case Law
Irina Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51817(U))
December 19, 2017
The insurer established that the no-fault action was premature because timely requested verification remained outstanding. The Civil Court had denied the insurer summary judgment, reasoning that untimely denial precluded its verification defense, and granted the provider's cross motion. The insurer proved timely mailing of initial and follow-up verification requests and nonreceipt of the requested material, establishing prima facie prematurity under Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. The provider failed to raise a triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion dismissing the complaint and denied the provider's cross motion. It treated the appeal from the order as a premature appeal from the judgment under CPLR 5520 (c).
Comprehensive Psychological Servs. of NY, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51815(U))
December 19, 2017
The provider failed to prove medical necessity after the insurer's expert testimony shifted the burden at trial. In the nonjury trial on assigned no-fault claims, the Civil Court credited the insurer's expert and found that the insurer had demonstrated lack of medical necessity. Under Park Slope Med. & Surgical Supply, Inc. v Travelers Ins. Co., the provider then had to prove by a preponderance of the evidence that the services were medically necessary. It submitted no evidence meeting that burden. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and rejected the provider's challenge to limits on cross-examination of the insurer's expert under Feldsberg v Nitschke.
Khan v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51812(U))
December 19, 2017
The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact. In the provider's action for assigned first-party no-fault benefits, the Appellate Term, Second Department, affirmed the order denying dismissal of the complaint. On review of the record, the appellate court agreed with the Civil Court's determination, citing Zuckerman v City of New York.
Kensington Radiology Group, P.C. v National Am. Ins. Co. (2017 NY Slip Op 51811(U))
December 19, 2017
The insurer's summary judgment motion was denied because medical necessity presented a triable issue of fact. In the provider's action for assigned first-party no-fault benefits, the Appellate Term, Second Department, affirmed the order denying dismissal of the complaint. On review of the record, the appellate court agreed with the Civil Court's determination, citing Zuckerman v City of New York.
Acupuncture Now, P.C. v GEICO Ins. Co. (2017 NY Slip Op 51809(U))
December 19, 2017
The insurer's summary judgment cross motion on fee schedule claims was granted after its mailing and fee schedule proof were upheld. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, following Great Wall Acupuncture, P.C. v Geico Ins. Co. The provider's motion remained denied; dismissal of remaining claims was denied, but timely denials were established under CPLR 3212 (g).
Adelaida Physical Therapy, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51808(U))
December 19, 2017
The insurer failed to establish its fee schedule defense because it did not demonstrate use of the correct conversion factor. The provider appealed the dismissal of its assigned no-fault claims for services billed under CPT codes 97010, 97110 and 97124. Following Rogy Med., P.C. v Mercury Cas. Co., the Appellate Term, Second Department, concluded that the insurer had not established as a matter of law that the charges exceeded the workers' compensation fee schedule. It reversed the order, insofar as appealed from, and denied the branches of the insurer's summary judgment motion addressing those services.
Healthway Med. Care, P.C. v Global Liberty Ins. (2017 NY Slip Op 51807(U))
December 19, 2017
The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the third through tenth causes of action, while affirming denial of the provider's motion on those claims. For the third cause, the insurer did not establish charges exceeding the workers' compensation fee schedule. For the fourth through tenth causes, failure to prove timely mailing of initial and follow-up IME letters defeated proof of duly scheduled IMEs and nonappearance. The provider also failed to establish that the claims were not timely denied or that timely denials were conclusory, vague or without merit as a matter of law.
Faith Acupuncture, P.C. v Global Liberty Ins. (2017 NY Slip Op 51806(U))
December 19, 2017
The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion. For the first three causes of action, the insurer failed to establish as a matter of law that the charges exceeded the workers' compensation fee schedule, following Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home. For the fourth through sixth causes, it failed to prove timely mailing of initial and follow-up IME letters and therefore did not establish that the assignor failed to appear at duly scheduled IMEs.
Metro Psychological Servs., P.C. v Travelers Prop. & Cas. Ins. Co. (2017 NY Slip Op 51804(U))
December 19, 2017
The Workers' Compensation Board must resolve whether the assignor acted as an employee at the time of the accident. The insurer submitted sufficient evidence to raise an issue whether the assignor was injured in the course of employment and workers' compensation benefits might be available. Because the Board has primary jurisdiction over the applicability of the Workers' Compensation Law, the courts could not resolve that issue pending its determination. The record indicated that an application to the Board had been made. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granting the provider's cross motion, and remitted the matter to the Civil Court to be held in abeyance pending the Board's determination.
Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2017 NY Slip Op 51803(U))
December 19, 2017
The insurer established full fee schedule payment for the appealed acupuncture services and untimely submission of two other claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing those claims. The insurer proved full payment for services billed under CPT codes 97813 and 97814 using the workers' compensation fee schedule for acupuncture performed by chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. It also established untimely submission of two claims under 11 NYCRR 65-1.1. The provider did not rebut either showing or challenge the Civil Court's finding that the insurer was otherwise entitled to judgment on these claims.