No-Fault Case Law
Jamaica Med. Plaza, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50475(U))
March 29, 2013
The insurer was entitled to a provider deposition material and necessary to its defense, but factual disputes barred summary judgment. The treating physician's affirmation raised triable issues concerning medical necessity and compliance with the Workers' Compensation fee schedule. The billing administrator's affidavit established admissibility of the claim forms under CPLR 4518 (a), supporting the provider's prima facie finding under CPLR 3212 (g). The insurer also established that it had served a deposition notice and that the examination was warranted under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel a deposition within 60 days and otherwise affirmed, preserving the denial of insurer summary judgment and the provider's prima facie finding.
City Dental Servs., P.C. v Country Wide Ins. Co. (2013 NY Slip Op 50474(U))
March 29, 2013
An insurer that defaults in opposing summary judgment must seek vacatur of the default order rather than renewal of its opposition. The insurer attempted to file opposition almost two months after the stipulated deadline; Civil Court rejected the papers and granted the provider summary judgment on default. The insurer then sought renewal and reargument under CPLR 2221 (d) and (e), and vacatur under CPLR 5015 (a) (1). The Appellate Term, Second Department, dismissed the appeal from denial of reargument because that ruling was not appealable and affirmed the denial of renewal. The vacatur branch remained pending and undecided because the appealed order did not address it.
Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))
March 29, 2013
The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews. The insurer established timely mailing of verification requests and denials. On the third cause of action, the provider failed to show that it supplied responsive information, requiring dismissal as premature under 11 NYCRR 65-3.8 (a). On the first, second, and fourth causes of action, affirmed peer reviews supplied factual bases and medical rationales for finding the services unnecessary. The treating doctor's affidavit did not meaningfully rebut those conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Lancer Ins. Co. v Saravia (2013 NY Slip Op 23095)
March 29, 2013
The insurer's circumstantial evidence did not establish a staged collision as a matter of law. The Supreme Court, Kings County, denied the insurer summary judgment declaring no coverage because competing inferences remained and its supervisor lacked personal knowledge. Default judgment against two passengers was denied because the publication order failed to designate publications under CPLR 316 (a). The provider's assignments preceded the declaratory action, so subsequent assignor defaults would not affect its rights. The court also denied dismissal of the provider's benefits and attorney-fee counterclaims. Insurance Law § 5103 (a) (3) did not make passengers insureds; eligibility for defense expenses depended on the policy's insured and defense provisions. Because the policy was not submitted, the court left fee entitlement unresolved.
Leica Supply, Inc. v GEICO Indem. Co. (2013 NY Slip Op 50478(U))
March 29, 2013
An insurer's delay letters that request no specific verification do not toll its time to pay or deny no-fault claims. After a nonjury trial, the provider's complaint for assigned benefits was dismissed. The sole appellate issue was whether the insurer's letters constituted verification requests. The letters merely notified the provider that payment was being delayed and requested no specific verification. Because the insurer failed to establish any other toll, it was precluded from asserting lack of medical necessity under Presbyterian Hosp. in City of NY v Maryland Cas. Co. The Appellate Term, Second Department, reversed the judgment and remitted for entry of judgment for the provider, with statutory interest and attorney's fees calculated under Insurance Law § 5106 (a).
Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 23098)
March 28, 2013
An insurer must send a follow-up EUO request within 10 calendar days of the missed EUO. The provider failed to comply with initial and follow-up EUO requests, but the insurer's follow-up was untimely. On the insurer's motion to reargue, the Civil Court, Queens County, read 11 NYCRR 65-3.6 (b) and 65-3.8 together and deferred to the Superintendent's interpretation measuring the deadline from the missed appearance. The 30-day verification deadline concerned submission of documents, rather than an appearance scheduled for a specific date. After considering input from the Department of Financial Services, the court granted reargument and adhered to its prior determination awarding the provider summary judgment.
AR Med. Rehabilitation, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50510(U))
March 27, 2013
The provider failed at trial to lay a business-record foundation for bills generated by a separate billing company. Its physician witness inadequately described bill creation and gave inconsistent testimony about supervising billing and checking other professionals' charges. No billing-company witness testified. Under CPLR 4518 (a), the Civil Court, Kings County, rescinded admission of the bills and awarded a verdict to the insurer because the provider failed to establish its prima facie case under Insurance Law § 5106 (a). The court denied the insurer's motion in limine alleging fraudulent incorporation: the prior proceedings supplied no binding finding against this provider, and the motion improperly substituted for summary judgment. The physician's convictions and license revocation could bear on credibility but did not bar testimony.
City Care Acupuncture, PC v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50430(U))
March 27, 2013
The insurer established timely, proper mailing of IME notices and the assignor's failure to appear. The provider did not dispute the nonappearance or raise a triable issue concerning mailing or the reasonableness of the notices. The assignor's denial of receipt alone was insufficient to rebut the insurer's showing. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, the Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in full, and dismissed the provider's complaint for assigned no-fault benefits.
Compas Med., P.C. v Mercury Ins. Co. (2013 NY Slip Op 50459(U))
March 21, 2013
The provider's complaint stated a cognizable cause of action and sufficiently identified the transactions intended to be proved. The insurer moved under CPLR 3211 (a) (7) to dismiss the action for assigned no-fault benefits, arguing that the complaint inadequately described the transactions underlying the claims. Following Leon v Martinez, the court applied liberal construction, accepted the allegations as true, and afforded the provider every favorable inference. The test was sufficient notice of the transactions and discernible elements of a recognized cause of action, which the complaint satisfied. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))
March 21, 2013
An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts. The insurer relied on its attorney's review of an office file and familiarity with office procedures, without demonstrating personal knowledge of the provider's nonappearance. That conclusory submission had no probative value under CPLR 3212 (b). Although 11 NYCRR 65-1.1 makes compliance with requested EUOs a condition precedent to payment, alleged noncompliance still requires admissible proof. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion. It expressly directed that W & Z Acupuncture v Amex Assur. Co. and Points of Health Acupuncture v Lancer Ins. Co. no longer be followed to the extent inconsistent.