No-Fault Case Law
Quality Psychological Servs., P.C. v Hartford Ins. Co. (2013 NY Slip Op 50045(U))
January 15, 2013
The insurer established proper EUO requests, timely mailing, and the provider's nonappearances, defeating its no-fault claim. The investigation justified a treating-physician EUO under 11 NYCRR 65-3.5 (e) and 65-1.1; the provider waived location objections by not objecting. Detailed insurer and courier affidavits established timely mailing despite absent certified-mail receipts, and counsel established two nonappearances. The provider did not rebut receipt. Certificates of conformity were governed by CPLR 2309 (a) and (c), with Real Property Law § 299 (3) and § 311 (5), rather than CPLR 2106; defects were disregarded under CPLR 2001 absent prejudice. The Civil Court, Kings County, denied the provider's summary judgment cross motion, granted the insurer's motion, and dismissed the complaint with prejudice.
Flatlands Med., P.C. v State Farm Mut. Auto. Ins. Co. (2013 NY Slip Op 50071(U))
January 14, 2013
The provider's EUO nonappearances defeated coverage, and its objections to the requests could not be considered absent any alleged response. The insurer established timely mailing of the scheduling letters and denials and the provider's failure to attend duly scheduled EUOs, a condition precedent under 11 NYCRR 65-1.1. The Civil Court gave notice before converting the insurer's CPLR 3211 dismissal motion into one for summary judgment under CPLR 3211 (c). Because the provider did not allege responding to the EUO requests in any way, its objections should not have been considered. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment.
Y & W Acupuncture PLLC v Chubb Indem. Ins. Co. (2013 NY Slip Op 50070(U))
January 14, 2013
The provider's appeal from an order compelling discovery became academic after dismissal of the complaint. The insurer had moved to dismiss under CPLR 3126, and the Civil Court granted relief only to the extent of compelling the provider to respond to discovery demands in its assigned no-fault action. The Appellate Term, Second Department, dismissed the appeal because a subsequent Civil Court order dismissed the complaint.
All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))
January 14, 2013
The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action. The provider showed nonpayment but failed to establish an absent or legally insufficient denial as required for summary judgment under Insurance Law § 5106 (a). The insurer proved timely initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b); the provider's nonresponse was uncontroverted, so the payment period had not commenced under 11 NYCRR 65-3.8 (a). Although the insurer had not cross-appealed, the Appellate Term, Second Department, searched the record and granted its cross motion for summary judgment. The order, insofar as appealed from, was modified to strike compelled discovery; the court passed on no other issue.
Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50068(U))
January 14, 2013
The insurer's IME reports established lack of medical necessity, and the provider offered no medical affidavit or affirmation in rebuttal. The insurer supported its cross motion with proof of timely mailing of the denials and two affirmed IME reports. Each report supplied a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider's failure to submit a medical professional's affidavit or affirmation rebutting those conclusions left no triable issue. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, entered after denial of the provider's summary judgment motion and grant of the insurer's cross motion.
Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50067(U))
January 14, 2013
The insurer's IME report established lack of medical necessity, and the provider offered no medical affidavit or affirmation in rebuttal. In seeking summary judgment dismissing the assigned no-fault claims, the insurer proved timely mailing of its denials and submitted an affirmed IME report. The report provided a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider submitted no medical professional's affidavit or affirmation rebutting the report, and thus raised no triable issue. The Appellate Term, Second Department, affirmed the dismissal judgment entered after denial of the provider's motion and grant of the insurer's cross motion for summary judgment.
Axis Chiropractic, PLLC v Geico Gen. Ins. Co. (2013 NY Slip Op 50066(U))
January 14, 2013
The provider failed to raise a triable issue against an IME report establishing lack of medical necessity. The insurer's cross motion was supported by proof of timely mailing of its denials and an affirmed IME report giving a factual basis and medical rationale for the chiropractor's determination that the services were unnecessary. The provider submitted no affidavit or affirmation from a medical professional rebutting the report's conclusions. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining the insurer's cross motion for summary judgment on the assigned no-fault claims.
Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50065(U))
January 14, 2013
The insurer's IME report established that the supplies lacked medical necessity, and the provider submitted no medical rebuttal. The insurer proved timely mailing of the denial and supplied an affirmed IME report stating a factual basis and medical rationale for the chiropractor's determination. The provider offered no affidavit or affirmation from a medical professional rebutting the report's conclusions and therefore failed to raise a triable issue. Its remaining contentions either lacked merit or were improperly raised for the first time on appeal. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint entered upon the insurer's summary judgment motion.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2013 NY Slip Op 50064(U))
January 14, 2013
The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's summary judgment cross motion. The insurer established timely mailing of its denial and submitted a sworn peer review report providing a factual basis and medical rationale for finding the supplies unnecessary. That showing shifted the burden to the provider. In opposition, the provider's medical affidavit sufficiently demonstrated a question of fact concerning medical necessity. The Appellate Term, Second Department, reversed the judgment dismissing the assigned no-fault claim, vacated the portion of the order granting the insurer summary judgment, and denied the insurer's cross motion.
Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U))
January 14, 2013
The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment. The psychologist could not affirm the report under CPLR 2106, and its notary stamp and signature lacked any attestation that the psychologist was sworn or appeared before the notary, failing CPLR 2309 (b). The insurer's motion was therefore properly denied despite proof of a timely denial. The provider showed nonpayment but did not establish an absent or legally insufficient denial, failing its prima facie burden under Insurance Law § 5106 (a). The Appellate Term, Second Department, modified the order to deny the provider's cross motion and otherwise affirmed, leaving both sides without summary judgment.