No-Fault Case Law
Delta Diagnostic Radiology, P.C. v Kemper Ins. Co. (2016 NY Slip Op 50396(U))
March 23, 2016
The insurer established that the assignor failed to appear for duly scheduled IMEs, and the provider raised no triable issue of fact. In this action for assigned first-party no-fault benefits, the provider challenged the sufficiency of the insurer's affidavits as its sole merits argument on appeal. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at an IME is a condition precedent to the insurer's liability under the policy. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Alleviation Med. Servs., P.C. v Hertz Co. (2016 NY Slip Op 50399(U))
March 23, 2016
The insurer failed to prove IME nonappearance, and the provider failed to establish prima facie entitlement to summary judgment. The insurer submitted an orthopedic examiner's affirmation and a chiropractor's affidavit, but neither established the assignor's nonappearance through personal knowledge or other appropriate proof. The insurer therefore failed to demonstrate breach of a condition precedent to coverage. The provider's affidavit did not establish that the claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order by denying the insurer's cross motion for summary judgment dismissing the complaint and otherwise affirmed, leaving the provider's motion denied. Each side defeated the other's request for summary judgment.
Active Care Med. Supply Corp. v Hartford Ins. Co. (2016 NY Slip Op 50769(U))
March 22, 2016
The insurer failed to establish its defense that it was not the proper no-fault insurer through admissible evidence. The Civil Court, Kings County, denied the insurer's summary judgment motion. Its attorney's affidavit did not establish the defense; an employee affidavit first submitted on reply could not supply new facts. Without the policy, the employee's account of its contents was hearsay, and an uncertified police report was inadmissible. The provider's summary judgment cross motion was denied without prejudice because it asserted that necessary discovery remained incomplete, implicating CPLR 3212 (f). The provider prevailed on its request to compel discovery: absent objections, the insurer had to supply responsive nonprivileged information and documents.
Big Apple Ortho Prods., Inc. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50768(U))
March 22, 2016
The insurer failed to establish that the assignor fell within the exclusion for certain New York residents injured outside the state. The provider sued for assigned no-fault benefits, and the insurer sought summary judgment on the ground that the accident occurred in Georgia. Under 11 NYCRR 65-1.1 (j), the cited exclusion depended on residency and ownership of, or relationship to the owner of, a vehicle insured under another policy providing required New York no-fault coverage. The insurer established neither element. Its unsworn, uncertified police report was inadmissible to establish the accident location. The Civil Court, Kings County, denied the insurer's motion without prejudice.
PR Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50338(U))
March 21, 2016
The insurer's letter delaying payment pending IMEs did not toll the 30-day period, and its medical-necessity defense was precluded. The provider established that its claims were overdue because they had not been paid or denied within 30 days. The insurer failed to raise a triable issue concerning timely denial or tolling through verification requests predating receipt of the claims. The Appellate Term, First Department, reversed the order, insofar as appealed from, denied the insurer's summary judgment motion, reinstated the complaint, and granted the provider's cross motion on the claims at issue. The order was appealable because Civil Court had addressed the merits of reargument and effectively granted it, despite purporting to deny reargument.
Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am. (2016 NY Slip Op 50339(U))
March 21, 2016
The insurer failed to establish IME nonappearance through affidavits that did not explain the doctors' recollections a year later. In the provider's assigned no-fault action, the IME doctors' affidavits lacked probative value because they did not identify the basis for recalling the assignor's absence approximately 12 months after the scheduled examinations. The scheduling vendor's affidavit alone could not establish personal knowledge of nonappearance. Following Matter of Leon RR, routine recording of third-party reports did not guarantee their truth or reliability. The Appellate Term, First Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion.
Hu-Nam-Nam v Infinity Ins. Co. (2016 NY Slip Op 50391(U))
March 18, 2016
The insurer established a valid retroactive rescission of the Florida policy based on material misrepresentations about residence and garaging. The provider sought assigned no-fault benefits for a New York accident, and the Civil Court granted its cross motion because the insurer had not timely denied the claim. Florida Statutes Annotated, title 37, § 627.409 permits rescission for material misrepresentations in an insurance application. The insurer's affidavit and documents demonstrated notice of rescission and return or tender of all premiums within a reasonable time after discovery of the grounds for rescission. The provider raised no triable issue concerning validity under Florida law. The Appellate Term, Second Department, reversed, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Friedman v Allstate Ins. Co. (2016 NY Slip Op 50390(U))
March 18, 2016
The provider proved by a preponderance of the credible evidence that the disputed acupuncture treatments were medically necessary. At a nonjury trial, the insurer's IME examiner testified that the assignor's injuries had resolved and further acupuncture was unnecessary. The treating provider testified that the injuries persisted after the IME and that work as a parking valet exacerbated them and impeded treatment. After the insurer showed lack of medical necessity, the provider met its burden of proving necessity. The insurer was also precluded from asserting possible workers' compensation eligibility because its denials relied solely on the IME. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits.
Natural Therapy Acupuncture, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50389(U))
March 18, 2016
The insurer's affidavit and exhibits established full payment for the disputed services under the workers' compensation fee schedule. The provider sued for assigned first-party no-fault benefits and moved for summary judgment; the insurer cross-moved to dismiss on the ground that it had timely and properly paid the claims. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer's no-fault examiner's affidavit and supporting exhibits established its defense. The provider failed to raise a triable issue of fact. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.
Greenway Med. Supply Corp. v Dollar Rent A Car (2016 NY Slip Op 50392(U))
March 18, 2016
The insurer established nonreceipt of the claims, and the provider's mailing log showed they were sent to a different insurer. The insurer's no-fault representative supplied prima facie proof that the claim forms were not received. Although the provider described its mailing practices, its affidavit identified the recipient only as the insurance carrier and supplied no other proof of mailing to this defendant. The provider therefore failed to raise a triable issue. The absence of a certificate of conformity for the insurer's out-of-state affidavit was curable or could be disregarded under CPLR 2001. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.