No-Fault Case Law
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U))
October 8, 2013
An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor. The insurer sought summary judgment or, alternatively, an order compelling the deposition in an action for assigned benefits. Its appeal was limited to denial of the deposition request. CPLR 3101 (a) permits disclosure of material and necessary matters regardless of the burden of proof, including facts that assist trial preparation by sharpening the issues. Because lack of medical necessity was among the insurer's defenses, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's motion compelling the provider to produce its treating chiropractor.
Shara Acupuncture, P.C. v Allstate Ins. Co. (2013 NY Slip Op 51731(U))
October 8, 2013
The insurer proved full fee-schedule payment for acupuncture codes 97810 and 97811 but failed to address the initial evaluation under code 99203. The Appellate Term, Second Department, modified the order to remove summary judgment dismissing the initial-evaluation claim and otherwise affirmed, including denial of the provider's motion. The insurer's office-practice affidavits established timely mailing of the denials, and its proof showed payment for acupuncture services under the workers' compensation fee schedule for chiropractors. Its failure to address code 99203 precluded judgment dismissing that claim upon a search of the record. The provider also failed to establish entitlement to judgment on that claim because it did not show that the timely denial was conclusory, vague or without merit as a matter of law.
Ranbow Supply of N.Y., Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 51729(U))
October 8, 2013
The insurer established that IME scheduling letters were addressed to its insured at the address the insured supplied. In this action for assigned no-fault benefits, the provider challenged dismissal on the ground that the insurer had mailed the letters to an incorrect address. The insurer also demonstrated that copies were addressed to, and received by, the assignor's attorney. The Appellate Term, Second Department, rejected the address challenge and affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint based on the assignor's failure to appear for duly scheduled IMEs. The provider's remaining appellate contentions lacked merit.
American Tr. Ins. Co. v Curry (2013 NY Slip Op 23470)
October 8, 2013
The insurer failed to justify its EUO request or offer admissible proof of the injured claimant's nonappearance. The Supreme Court, New York County, denied the insurer's motion for summary declaratory judgment against a provider and default declaratory judgment against nine other defendants. Under 11 NYCRR 65-3.5 (e), an EUO request requires specific objective justification, which the insurer's submissions lacked. The insurer also omitted the business records purportedly documenting nonappearance; its witness's account of their contents was hearsay. The record left unresolved whether the requests went to the claimant's current address. Although scheduling during business hours was reasonable given the offered accommodations, the insurer failed to establish entitlement to relief under CPLR 3212 (b) or CPLR 3215 (f).
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 23360)
October 8, 2013
The provider established claim submission through the insurer's denials and proved the loss through admissible claim forms. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider's requested finding under CPLR 3212 (g). The denials admitted receipt of the claims, and the provider demonstrated that its claim forms were admissible business records under CPLR 4518 (a), without rebuttal by the insurer. Because the Civil Court had already found timely and proper denials established and limited the trial issues, the appellate court found it appropriate to establish claim submission and the fact and amount of loss for all purposes in the action. Trial was further limited to medical necessity.
A.M. Med. Servs., P.C. v Avis Rent A Car (2013 NY Slip Op 51730(U))
October 8, 2013
The insurer's motion to vacate a settlement-default judgment was unnecessary because the judgment it challenged had never been entered. After missing the settlement payment deadline, the insurer moved to vacate what it believed was a judgment reflecting increased interest, attaching the provider's proposed judgment. No judgment existed when it moved. While the motion was pending, the clerk entered a judgment, unknown to the parties and motion court, for the amounts payable upon compliance with the settlement. The Appellate Term, Second Department, reversed the order granting vacatur and denied the motion as unnecessary; it did not decide whether the clerk's judgment was proper or whether the settlement default was excusable.
Ranbow Supply of N.Y., Inc. v MVAIC (2013 NY Slip Op 51732(U))
October 8, 2013
A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle in which its assignor was a passenger. After a nonjury trial, Civil Court, Kings County, found the submitted documentation sufficient to establish the assignor's entitlement to MVAIC coverage and awarded benefits. The provider and assignor knew the vehicle owner's identity, but the provider did not demonstrate exhaustion of remedies against that owner. The Appellate Term, Second Department, reversed the judgment and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.
Delta Diagnostic Radiology, P.C. v Mvaic (2013 NY Slip Op 51733(U))
October 8, 2013
MVAIC established a timely denial based on the provider's failure to submit written proof of claim within 45 days of the services. MVAIC sought summary judgment dismissing the assigned no-fault claim under 11 NYCRR 65-1.1. The provider's challenge to the timeliness of the denial failed. Its request for discovery under CPLR 3212 (f) did not defeat the motion because the discovery sought was not essential to justify opposition, and it raised no triable issue against MVAIC's prima facie showing. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order granting MVAIC summary judgment dismissing the complaint.
Compas Med., P.C. v Elrac, Inc. (2013 NY Slip Op 51734(U))
October 8, 2013
The insurer established nonreceipt of two bills and the assignor's failure to appear for duly scheduled IMEs. Its affidavit sufficiently demonstrated that it had not received the two claim forms, rather than merely denying receipt in conclusory terms. An employee of the IME scheduling company established timely mailing of the scheduling letters through standard office practices, and the examining healthcare professionals established the assignor's nonappearance. A claims examiner also sufficiently described standard mailing procedures for denial forms. The Appellate Term, Second Department, affirmed Civil Court, Kings County's order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Metropolitan Med. Supplies, LLC v MVAIC (2013 NY Slip Op 51735(U))
October 8, 2013
A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle that struck its assignor. The provider and assignor knew the vehicle owner's identity, but the provider did not demonstrate that it had exhausted remedies against that owner. Civil Court, Kings County, granted the provider summary judgment and denied MVAIC's cross motion, and a judgment followed. Treating the appeal as taken from that judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's motion, and granted MVAIC summary judgment dismissing the complaint.