No-Fault Case Law
Adelaida M. Laga, P.T. v GEICO Ins. Co. (2017 NY Slip Op 51715(U))
December 8, 2017
The provider failed to establish its prima facie case, and the insurer failed to prove fee schedule excesses or IME nonappearance. The provider's summary judgment proof did not establish that the claim was not timely denied or that a timely denial was conclusory, vague, or legally meritless. The insurer's cross motion did not establish as a matter of law that the fees exceeded the workers' compensation fee schedule or that the assignor failed to appear for IMEs. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied that motion. Denial of the insurer's cross motion remained undisturbed.
Adelaida M. Laga, Pt v GEICO Ins. Co. (2017 NY Slip Op 51713(U))
December 8, 2017
The insurer failed to establish the correct fee schedule conversion factor or proper application of Ground Rule 11. That failure defeated its defense that charges for the first, second, and fourth causes of action exceeded the workers' compensation fee schedule. The provider also failed to establish prima facie entitlement to summary judgment: its affidavit did not show that the claims were not timely denied or that timely denials were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion for summary judgment dismissing those causes of action and affirmed the denial of the provider's motion on them.
Daily Med. Equip. Distrib. Ctr., Inc. v Global Liberty Ins. (2017 NY Slip Op 51710(U))
December 8, 2017
An order holding a summary judgment motion in abeyance pending a Workers' Compensation Board determination is not appealable as of right. The insurer sought dismissal of the provider's assigned no-fault benefits action based on the assignor's alleged eligibility for workers' compensation benefits. The Civil Court held the motion pending a Board determination whether the assignor was acting in the course of employment at the accident and whether benefits might be available. Because the order did not decide the motion, CPLR 5701 (a) (2) afforded no appeal as of right. The Appellate Term, Second Department, declined leave to appeal and dismissed the provider's appeal, leaving the insurer's motion in abeyance.
KHL Acupuncture, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51709(U))
December 8, 2017
The insurer failed to prove timely mailing of verification requests and denials, and the provider failed to establish its prima facie case. The insurer sought dismissal based on the assignor's failure to appear for EUOs. Its affidavits did not sufficiently describe a standard office practice or procedure ensuring timely mailing of the verification requests and denial forms. The provider's affidavit did not establish that the claims were not timely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment dismissing the complaint and affirmed denial of the provider's summary judgment motion.
AVM Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51708(U))
December 8, 2017
The insurer proved full fee schedule payment of three claims but failed to justify Ground Rule reductions of seven others. The provider challenged summary judgment dismissing the first through eighth causes of action and findings reducing the ninth and tenth claims under an eight-unit fee schedule defense. The insurer adequately proved full payment of the first, fourth, and fifth claims under the workers' compensation fee schedule. It did not demonstrate proper Ground Rule reductions for the second, third, and sixth through tenth claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny dismissal of the second, third, and sixth through eighth causes and vacate the CPLR 3212 (g) findings on the ninth and tenth, while affirming the three dismissals.
Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51711(U))
December 8, 2017
The defendant's proof established a presumption that the denial forms were timely mailed in support of its EUO nonappearance defense. The provider appealed summary judgment dismissing its complaint for assigned no-fault benefits based on the assignor's failure to attend duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's mailing challenge and declined to consider its remaining contention because it was raised for the first time on appeal. The order was affirmed in the defendant's favor.
Maria S. Masigla, P.T. v ELRAC, Inc. (2017 NY Slip Op 51712(U))
December 8, 2017
The provider's own papers showed that its claims were submitted more than 45 days after the services were rendered. In this action for assigned no-fault benefits, the provider challenged summary judgment dismissing the complaint. The Appellate Term, Second Department, affirmed in favor of the defendant. For claims denied as untimely under 11 NYCRR 65-2.4 (c), the provider's submissions established late billing. Its challenge to the completeness of the denial forms was raised for the first time on appeal and was also without merit.
Right Aid Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51714(U))
December 8, 2017
The provider's affidavit raised a triable issue as to whether its action was premature for failure to supply requested verification. The defendant obtained summary judgment dismissing the assigned no-fault complaint on that ground. In opposition, the provider submitted an affidavit sufficient to create a presumption that the requested verification had been mailed to and received by the defendant. The Appellate Term, Second Department, reversed the order and denied the defendant's motion, leaving the disputed verification issue for resolution.
Brand Med. Supply, Inc. v ELRAC, Inc. (2017 NY Slip Op 51723(U))
December 8, 2017
The provider failed to show that use of a pseudonym for an IME scheduling contact would change the prior summary judgment determination. After dismissal for the assignor's IME nonappearances, the provider sought renewal based on an unrelated trial transcript showing that the named rescheduling contact was fictitious. CPLR 2221 (e) (2) and (3) require new facts that would change the determination and reasonable justification for not presenting them earlier. No evidence showed that the assignor attempted to reschedule. The Appellate Term, Second Department, affirmed denial of renewal in favor of the defendant, expressly leaving the propriety of using the pseudonym undecided.
TAM Med. Supply Corp. v MVAIC (2017 NY Slip Op 51725(U))
December 8, 2017
MVAIC established that the provider had not timely filed the notice-of-intention affidavit required for no-fault payment. In the provider's action for assigned benefits, the untimely filing under Insurance Law § 5208 (a) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to seeking payment from MVAIC therefore remained unsatisfied. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in MVAIC's favor and did not reach the provider's remaining contention.