No-Fault Case Law
Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))
December 15, 2015
An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses. The insurer served a deposition notice with its answer and other discovery demands, then moved to compel the provider's appearance. Under CPLR 3101 (a) and CPLR 3102, disclosure devices have no prescribed order of priority, and simultaneous written demands did not make the deposition premature. The provider failed to show unreasonable annoyance, unnecessary expense or prejudice warranting protection under CPLR 3103. The Appellate Term, Second Department, reversed the order, insofar as appealed from, reinstated the insurer's deposition notice and granted the branch of its motion to compel the deposition.
Promed Orthocare Supply, Inc. v AIG Advantage Ins. Co. (2015 NY Slip Op 51886(U))
December 15, 2015
An order authorizing entry of a declaratory judgment has no preclusive effect if it does not declare the parties' rights. After the provider moved for summary judgment in its benefits action, the insurer obtained a default order granting entry of a declaratory judgment in a separate coverage action. The insurer relied on that order to seek dismissal through res judicata and collateral estoppel. Because the order contained no declaration of rights, it was not a conclusive final determination and could not preclude the provider's claims. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment.
GBI Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51882(U))
December 14, 2015
The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in Natural Therapy Acupuncture, P.C. v Geico Ins. Co., the companion appeal decided the same day, No. 2014-1315 Q C. The provider's motion for summary judgment remained denied.
Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51881(U))
December 14, 2015
The insurer's cross motion for summary judgment based on a New Jersey policy's arbitration requirement was denied on appeal. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2014-1315 Q C. The provider's motion for summary judgment remained denied.
Prepetit Med., P.C. v Allstate Ins. Co. (2015 NY Slip Op 51879(U))
December 14, 2015
The insurer's motion to compel the provider to appear for a deposition was granted and upheld on appeal. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in Farshad D. Hannanian, M.D., P.C. v Allstate Ins. Co.
Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 25425)
December 14, 2015
An option to arbitrate no-fault disputes supports a stay upon a motion to compel arbitration, rather than dismissal of the action. The New Jersey policy's choice-of-law clause governed. NJ Stat Ann § 39:6A-5.1 (a) and NJ Admin Code § 11:3-5.1 (a) made dispute resolution optional, as did the policy. Because the insurer had not moved to compel arbitration under CPLR 7503 (a), its dismissal cross motion failed. The provider also failed to establish medical necessity or improper nonpayment within 60 days after written notice of a covered loss and its amount under NJ Stat Ann § 39:6A-5 (g). The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion.
New Way Med. Supply Corp. v Infinity Group (2015 NY Slip Op 51880(U))
December 14, 2015
The insurer failed to prove proper cancellation under Pennsylvania law because it omitted the policy and declarations page. The insurer sought summary judgment based on cancellation for nonpayment of premium before the accident. Under 40 P.S. § 991.2006, cancellation notice must be mailed to the named insured at the address shown in the policy, in strict accordance with Pennsylvania's Act 68. Without the policy or declarations page, the court could not determine whether notice went to that address. The provider abandoned its argument that Pennsylvania law did not control. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.
Matter of Allstate Prop. & Cas. Ins. Co. v New Way Massage Therapy P.C. (2015 NY Slip Op 09184)
December 10, 2015
A provider's fee-sharing arrangement does not furnish a no-fault defense merely because it may constitute unprofessional conduct. The insurer petitioned to vacate a master arbitrator's award. The Appellate Division, First Department, affirmed the order denying vacatur and confirming the award, leaving the provider's award intact. The court left open whether the arrangement constituted unprofessional conduct under 8 NYCRR 29.1 (b) (4), concluding that the matter belonged solely to the appropriate state licensing board, and contrasted Mallela's defense concerning fraudulently incorporated enterprises.
Parkview Med. Advanced, P.C. v Travelers Ins. Co. (2015 NY Slip Op 51873(U))
December 9, 2015
The insurer established that eight claims were premature because timely requested verification remained outstanding. In this assigned-benefits action, the insurer's unopposed cross motion established timely mailing of initial and follow-up verification requests for the first through seventh and ninth causes of action, but not the eighth. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny the eight claims had not begun. The Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment on those claims, granted the insurer summary judgment dismissing them, and remitted for judgment for the provider on the eighth claim with statutory interest and attorney's fees under Insurance Law § 5106. The court did not pass on the provider's uncontested prima facie case.
New Way Med. Supply Corp. v Dollar Rent A Car (2015 NY Slip Op 51794(U))
December 8, 2015
The self-insurer's claims examiner affidavit established its lack-of-coverage defense without detailing each records-search step. The affidavit stated that no vehicle belonging to the self-insurer was involved in the alleged collision, that searches under the assignor's name found no associated accident record, and that the self-insurer issued no automobile policies to individuals or entities. The Appellate Term, Second Department, found that proof sufficient for prima facie entitlement to summary judgment and rejected the provider's demand for a detailed description of the search. The provider raised no triable issue in opposition. The court affirmed the order granting the self-insurer summary judgment dismissing the complaint.