No-Fault Case Law
Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50106(U))
January 20, 2017
The insurer's motion to dismiss was granted, and the provider's cross motion to renew its summary judgment motion was denied. The Appellate Term, Second Department, affirmed both rulings for the reasons stated in the companion appeal decided the same day, No. 2015-1649 Q C, involving the same parties.
Flatbush Chiropractic, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50105(U))
January 20, 2017
The provider's database search did not justify renewal or excuse noncompliance with an order requiring Workers' Compensation Board review. Civil Court stayed the no-fault action pending resolution of whether the assignor was injured during employment, allowing dismissal absent a Board filing within 90 days or good cause. The provider later sought renewal based on a search finding no benefits application. Under CPLR 2221 (e) (2) and (3), renewal requires new facts changing the prior determination and reasonable justification for their earlier omission. Workers' Compensation Law §§ 28 and 33 require the injured worker to file within two years and prohibit assignment. The provider showed neither a proper application nor good cause. The Appellate Term, Second Department, affirmed dismissal and denial of renewal.
Integral Assist Med., P.C. v Tri-State Consumer Ins. Co. (2017 NY Slip Op 50103(U))
January 20, 2017
The insurer's motion for summary judgment dismissing the provider's no-fault complaint was granted and affirmed on appeal. The Appellate Term, Second Department, rejected as meritless the provider's argument that the insurer took an adversarial position during claims processing in violation of 11 NYCRR 65-3.2 (b), without explaining its reasoning.
Bronx Acupuncture Therapy, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50101(U))
January 20, 2017
The insurer failed to establish a fee-schedule defense for codes 97039 and 99199 because it did not request needed verification. The provider billed moxibustion and acupressure under codes designated "By Report," which have no assigned relative value and require supporting documentation to determine reimbursement. Although the provider omitted that documentation, the insurer did not request additional verification within 15 business days under 11 NYCRR 65-3.5 (b) and did not demonstrate that it requested the needed information. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment dismissing the claims under those two codes.
Longevity Med. Supply, Inc. v State Farm Fire & Cas. Co. (2017 NY Slip Op 50118(U))
January 20, 2017
The provider showed an excusable default but a potentially meritorious opposition only for the claim the insurer denied receiving. Under CPLR 5015 (a) (1), counsel's detailed, credible account of law office failure excused untimely opposition. The billing supervisor's affidavit of personal, timely mailing created a presumption of receipt of three claims. It rebutted nonreceipt for one claim but did not rebut the insurer's showing on two claims timely denied for EUO nonappearance. The Appellate Term, Second Department, modified the order to vacate dismissal and deny the insurer summary judgment on the disputed-receipt claim, and remitted for consideration of the provider's cross motion on that claim. It affirmed denial of vacatur for the two EUO claims.
Daily Med. Equip. Distrib. Ctr., Inc. v MVAIC (2017 NY Slip Op 50039(U))
January 6, 2017
The provider failed to exhaust remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. A rental company's letter stated that no first-party no-fault coverage had been offered when the vehicle was rented in New Jersey. That letter was not dispositive because Insurance Law §§ 370 and 5107 may deem the insurance to include such coverage in appropriate circumstances. Following Hauswirth v American Home Assur. Co., the court also rejected the contention that Insurance Law § 5221 (b) (6) required MVAIC to pay and pursue recovery through arbitration under Insurance Law § 5105. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Healthway Med. Care, P.C. v Infinity Group (2017 NY Slip Op 50042(U))
January 6, 2017
The insurer established rescission of the Pennsylvania policy from inception based on the insured assignor's application misrepresentations. The insured represented residence and vehicle garaging in Pennsylvania, but the insurer discovered residence and garaging in the Bronx. The insurer submitted facts demonstrating rescission in accordance with Pennsylvania law under Erie Ins. Exch. v Lake and Klopp v Keystone Ins. Cos. The provider failed to rebut that showing, and issues raised for the first time on appeal were unpreserved and not considered. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment and granting the insurer's cross motion dismissing the complaint.
Alleviation Med. Servs., P.C. v Hertz Co. (2017 NY Slip Op 50046(U))
January 6, 2017
The defendant established untimely accident notice, and the provider offered no evidence of timely notice or reasonable justification. The defendant timely denied the claim under 11 NYCRR 65-2.4 (b), advising that reasonable justification could excuse notice given beyond 30 days. Counsel's speculation that the defendant might have learned of the accident otherwise raised no factual issue, and the provider did not show that 11 NYCRR 65-3.4 (a) required a different result. The NF-3 form was also submitted beyond 30 days; the court left open whether such a form could otherwise satisfy the written-notice requirement. The Appellate Term, Second Department, reversed the order and granted the defendant's motion for summary judgment dismissing the complaint.
City Care Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 50037(U))
January 5, 2017
The insurer established that the alleged injuries did not arise from an insured incident through the driver's certified EUO transcript. The driver testified that the insured livery vehicle carried the assignors but was not involved in the reported accident. The unsigned transcript was admissible because it was certified. The providers' collateral estoppel argument failed because they did not establish that prior actions necessarily decided the identical coverage issue, that those determinations were decisive here, or that there was a full and fair opportunity to litigate coverage. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer established its defense, and the providers raised no triable issue. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2017 NY Slip Op 50031(U))
January 5, 2017
The insurer's cross motion for summary judgment dismissing the complaint for the provider's EUO nonappearance was granted on appeal. Treating the appeal as taken from the judgment under CPLR 5512 (a), the Appellate Term, Second Department, reversed, vacated the underlying order and denied the provider's summary judgment motion. It relied on the reasons stated in an earlier Bay LS Med. Supplies, Inc. v Allstate Ins. Co. decision.