No-Fault Case Law
GL Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 51239(U))
August 6, 2015
The insurer failed to prove effective cancellation against an assignor outside the named insured's household because timely DMV filing was unproved. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion dismissing the complaint and otherwise affirmed denial of the provider's motion. The insurer did not establish filing of its cancellation notice with the DMV within 30 days of cancellation's effective date, as Vehicle and Traffic Law § 313 (2) (a) requires. It therefore failed to establish cancellation against the assignor under Vehicle and Traffic Law § 313 (3). The provider likewise failed to establish an untimely denial or a timely denial that was conclusory, vague, or legally meritless under Insurance Law § 5106 (a).
Neomy Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51237(U))
August 6, 2015
The insurer's summary judgment motion was denied for lack of proof of timely denial mailing and fees exceeding the applicable schedule. The Appellate Term, Second Department, affirmed denial of dismissal of both providers' claims. For one provider's bills, timely and proper denial mailing was unproved; for the other's, the insurer did not establish charges exceeding the workers' compensation fee schedule, under the cited precedents.
Right Aid Med. Supply Corp. v Hartford Ins. Co. (2015 NY Slip Op 51236(U))
August 6, 2015
The insurer failed to prove EUO nonappearance because its papers did not establish counsel's presence at the designated location. The Appellate Term, Second Department, modified the order to deny the insurer's summary judgment motion dismissing the complaint and otherwise affirmed denial of the provider's cross motion. Counsel asserted that the assignor had failed to appear, but the motion papers did not unequivocally demonstrate counsel's presence on either scheduled date at the court reporting company's office where the assignor was directed to attend. The insurer therefore failed to establish its nonappearance defense. The provider also failed to show that the assignor attended either EUO, so its cross motion remained denied.
GBI Acupuncture, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51235(U))
August 6, 2015
The insurer established timely denials and proper reimbursement under the workers' compensation fee schedule for the acupuncture services. The provider sought summary judgment to recover assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The insurer's affidavits sufficiently proved timely mailing of the denial forms, and its certified professional coder's affidavit established that it properly applied the fee schedule to determine reimbursement. 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.
Alleviation Med. Servs., P.C. v Maya Assur. Co. (2015 NY Slip Op 51238(U))
August 6, 2015
The insurer failed to establish timely mailing of the IME scheduling letters and was denied summary judgment. The insurer sought dismissal of the provider's action for assigned first-party no-fault benefits based on the assignor's failure to appear for scheduled IMEs. Because the motion papers did not establish timely mailing of the scheduling letters, the insurer failed to demonstrate that the IMEs were properly scheduled. The Appellate Term, Second Department, reversed the order granting the insurer's motion and denied summary judgment dismissing the complaint.
Delta Diagnostic Radiology, P.C. v Hertz Co. (2015 NY Slip Op 51242(U))
August 6, 2015
A factual dispute over the address used for IME scheduling letters defeated the insurer's cross motion for summary judgment. The provider sought assigned first-party no-fault benefits, and the insurer relied on the assignor's alleged IME nonappearance. The Civil Court denied both summary judgment motions, made implicit findings for the provider under CPLR 3212 (g), and limited trial to proper mailing of the IME letters and nonappearance if the IMEs were duly scheduled. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The insurer failed to articulate a sufficient basis to strike the findings favoring the provider, and the record raised a triable issue concerning the propriety of the address used for the scheduling letters.
North Bronx Med. Health Care v Praetorian Ins. Co. (2015 NY Slip Op 51231(U))
August 5, 2015
The insurer's motion for summary judgment dismissing the provider's claims on medical necessity grounds was denied. The Appellate Term, Second Department, affirmed the order in this action for assigned no-fault benefits. It found triable issues of fact regarding the insurer's lack of medical necessity defense upon reviewing the record and relied on Zuckerman v City of New York.
Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 51229(U))
August 5, 2015
The insurer's unrebutted mailing evidence established a timely denial based on the provider's failure to appear for EUOs. The provider sought assigned no-fault benefits, and the insurer cross-moved for summary judgment. The insurer's investigator described standard mailing practices, and a certified-mail receipt bearing the claim number showed the provider signed for the envelope containing the denial. The provider submitted no opposing affidavit and did not challenge the Civil Court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, vacated the CPLR 3212 (g) findings favoring the provider, and granted the insurer's cross motion dismissing the complaint.
Lynbrook Med. of NY, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51226(U))
August 5, 2015
The insurer's peer review established lack of medical necessity, and the provider submitted no medical evidence to rebut it. In an action for assigned no-fault benefits, the insurer moved for summary judgment dismissing the complaint. Its evidence established timely mailing of the denial forms, and its affirmed peer review report supplied a factual basis and medical rationale for finding the services unnecessary. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Quality Psychological Servs., P.C. v Esurance Ins. Co. (2015 NY Slip Op 51225(U))
August 5, 2015
The provider's challenges to the insurer's summary judgment motion were unpreserved because they were first raised on appeal. The provider appealed an order granting the insurer summary judgment dismissing its assigned no-fault benefits action and denying its own cross motion. Relying on Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen, the Appellate Term, Second Department, declined to consider the newly raised arguments and affirmed the order in the insurer's favor.