No-Fault Case Law
Acuhealth Acupuncture, P.C. v New York City Tr. Auth. (2016 NY Slip Op 50297(U))
March 1, 2016
The provider failed to establish grounds to vacate an award denying reimbursement because the no-fault policy was exhausted. The arbitrator found late partial denials but declined to award unpaid acupuncture charges beyond policy limits, and the master arbitrator sustained that determination. The provider argued that the priority-of-payment rule in 11 NYCRR 65-3.15 required reimbursement. The Supreme Court, Kings County, found a reasonable basis for the master arbitrator's interpretation that payment beyond policy limits exceeded arbitral authority. It distinguished Nyack Hosp. v General Motors Acceptance Corp., which involved a de novo court proceeding, and found the asserted legal error insufficient under the limited review standard. The court denied vacatur under CPLR 7511 (b) and confirmed the award under CPLR 7511 (e), favoring the self-insurer.
Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2016 NY Slip Op 26062)
February 26, 2016
Written accident notice mailed within 30 days satisfies the no-fault notice requirement, even if the insurer receives it later. The Appellate Term, Second Department, read 11 NYCRR 65-1.1 (d) with the prescribed cover letter required by 11 NYCRR 65-3.4 (b); an NF-2 satisfies written notice under 11 NYCRR 65-3.3 (d). Because day 30 fell on Saturday, General Construction Law §§ 20, 25 and 25-a extended timely mailing through Monday, when the insurer received the application. Receipt then did not establish untimely notice. The court modified the order to deny the insurer's cross motion for summary judgment. The provider's motion remained denied because it failed to establish untimely payment or denial under Insurance Law § 5106 (a), or a legally deficient timely denial.
Metropolitan Diagnostic Med. Care, P.C. v American Commerce Ins. Co. (2016 NY Slip Op 50216(U))
February 23, 2016
The provider's no-fault action was barred by res judicata following a default declaratory judgment denying coverage for the same claims. The insurer had obtained a judgment in Supreme Court, New York County, declaring that it owed no benefits to the provider or assignor under the claim number at issue, based on alleged EUO nonappearances. It then sought summary judgment dismissing the provider's Civil Court action. The insurer's answer had pleaded res judicata, collateral estoppel, and another pending action, contrary to the provider's contention that pendency had not been asserted. The Appellate Term, Second Department, affirmed dismissal on res judicata grounds and rejected the provider's equitable estoppel argument.
Gaetane Physical Therapy, P.C. v 21st Century N. Am. Ins. Co. (2016 NY Slip Op 50215(U))
February 23, 2016
The provider failed to establish a reasonable excuse for defaulting on the insurer's summary judgment motion. Despite a stipulated schedule for opposition and reply papers, the provider did not oppose the insurer's motion alleging lack of medical necessity. The provider sought vacatur almost seven months later, asserting law office failure. Under CPLR 5015 (a) and CPLR 2005, law office failure may constitute a reasonable excuse when supported by a detailed, credible explanation. The provider's conclusory, unsubstantiated claim did not satisfy that standard. The Appellate Term, Second Department, affirmed denial of vacatur and found it unnecessary to determine whether the provider had potentially meritorious opposition.
Apollo Chiropractic Care, P.C. v MVAIC (2016 NY Slip Op 50212(U))
February 23, 2016
MVAIC's defense that an assignor failed to file a timely notice of intention to make a claim is not subject to preclusion. The parties submitted agreed facts establishing timely claim submission and misaddressed verification requests, but not whether the assignor satisfied the coverage prerequisites. Insurance Law § 5208 (a) makes timely notice a condition precedent, and Insurance Law § 5221 (b) (2) requires compliance with article 52 for covered-person status. MVAIC had no duty to notify the claimant of untimely notice and could not be estopped from raising that failure. The Appellate Term, Second Department, reversed the provider's judgment and remitted for a more definite stipulation or trial on coverage; neither side obtained a final merits determination.
Lenox Hill Radiology v Great N. Ins. Co. (2016 NY Slip Op 50206(U))
February 22, 2016
The provider's mailing affidavit raised a triable issue over submission of the claim form despite the insurer's proof of nonreceipt. The insurer moved for summary judgment dismissing an action for assigned no-fault benefits and made a prima facie showing that it had not received the claim form. An affidavit from the mailing supervisor in the provider's attorneys' offices established mailing to the insurer. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. It also rejected the insurer's contention that untimely submission of the claim form, by itself, entitled the insurer to summary judgment.
Careplus Med. Supply, Inc. v Allstate Ins. Co. (2016 NY Slip Op 50196(U))
February 22, 2016
A provider need not establish claim forms' admissibility under CPLR 4518 as part of its prima facie entitlement to summary judgment. Following Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., the provider established mailing and receipt of statutory billing forms and overdue payment. Renewal based on changed law was timely because no final judgment had been entered. The insurer failed to prove timely mailing of one assignor's EUO follow-up notice under 11 NYCRR 65-3.6 (b), and denied the other assignor's claims more than 30 days after the EUO. It therefore failed to establish tolling or avoid preclusion of its defenses. The Appellate Term, Second Department, recalled its prior affirmance, reversed the District Court's order, and granted the provider summary judgment.
EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U))
February 18, 2016
The insurer failed to prove the provider's EUO nonappearances through evidence from anyone with personal knowledge. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits. Its attorney's affirmation neither described personal knowledge of office procedures when a claimant failed to appear nor alleged that the attorney was assigned to the file and would have conducted the EUO had the provider's principal appeared. The Appellate Term, First Department, affirmed denial of the insurer's motion on grounds different from those relied on by the Civil Court and expressly declined to reach any other issues.
Kraemer Bldg. Corp. v Scottsdale Ins. Co. (2016 NY Slip Op 01233)
February 18, 2016
The liability insurer owed no defense or indemnity because suit notice was late under a policy predating the prejudice requirement. The construction firm's timely accident notice did not excuse failure to notify the insurer of the ensuing personal injury action. The insurer learned of the suit from the injured claimant's counsel about four months after service. Nonreceipt of process resulted from failure to replace a defunct registered agent and was insufficient as a matter of law. Applying Argo Corp. v Greater N.Y. Mut. Ins. Co., the court required no showing of prejudice; the policy preceded the amendments to Insurance Law § 3420. The Appellate Division, Third Department, reversed, denied the firm's motion, granted the insurer's cross motion, dismissed the complaint and declared no coverage obligation.
Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U))
February 18, 2016
The insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion. The examiner's affidavit lacked probative value because the examiner maintained no records of nonappearances and did not explain the basis for recalling the assignor's absence approximately 18 months later. Under Gogos v Modell's Sporting Goods, Inc., the affidavit's proponent had to establish the basis of the affiant's knowledge. The scheduling vendor's affidavit alone could not establish personal knowledge of nonappearance, since routine recording of third-party statements did not guarantee their truth or reliability.