No-Fault Case Law
T & M Rehab PT, P.C. v Unitrin Auto & Home Ins. Co. (2012 NY Slip Op 52407(U))
December 21, 2012
The provider's renewal motion failed because Excel Imaging, P.C. v MVAIC did not change the law on duplicate denial forms. The prior order found the provider's prima facie case and the insurer's timely denials established, leaving medical necessity for trial. The provider sought renewal under CPLR 2221 (e) (2), arguing that Excel Imaging created a new requirement to issue denial forms in duplicate. Citing 11 NYCRR 65-3.8 (c) (1) and New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., the Appellate Term, Second Department, rejected that asserted change in law and affirmed denial of renewal in the insurer's favor.
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))
December 21, 2012
The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement. The Civil Court awarded the provider summary judgment after treating the denials as nullities under 11 NYCRR 65-3.8 (c) (1). Affidavits established timely mailing of IME scheduling letters, nonappearance, and timely mailing of denials to the provider, assignor, and assignor's attorney. The provider offered no argument explaining why those mailings failed to satisfy the duplicate requirement and raised no triable issue. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Alfa Med. Supplies v GEICO Gen. Ins. Co. (2012 NY Slip Op 52405(U))
December 21, 2012
The insurer's unrebutted peer review supported dismissal of the supply claims except the thermophore claim, which it conceded was payable. The provider appealed denial of its summary judgment motion and dismissal of its complaint on the insurer's cross motion. The affirmed peer review supplied a factual basis and medical rationale for finding the other supplies unnecessary but found the thermophore medically necessary. The provider submitted no doctor's affirmation rebutting the report and raised no triable issue concerning the other supplies. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the thermophore claim and deny the insurer's cross motion as to that claim, while affirming dismissal of the remaining claims.
Essential Acupuncture Servs., P.C. v Ameriprise Auto & Home Ins. (2012 NY Slip Op 52404(U))
December 21, 2012
The insurer failed to prove timely mailing of EUO letters and therefore failed to establish that its EUO defense escaped preclusion. The provider obtained summary judgment, and the insurer's cross motion was denied. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), the insurer had to establish timely mailing of initial and follow-up EUO letters concerning the provider's owner. Its deficient proof did not establish tolling of the 30-day determination period under 11 NYCRR 65-3.8 or timely denials. The Appellate Term, Second Department, affirmed the provider's judgment, without passing on its prima facie showing because the insurer raised no appellate issue concerning that showing.
W & Z Acupuncture, P.C. v Unitrin Auto & Home Ins. Co. (2012 NY Slip Op 52400(U))
December 21, 2012
The insurer's demand for an EBT on independent contractor treatment was improper because its denials omitted that defense. In the provider's action for assigned no-fault benefits, the Civil Court compelled an EBT limited to the relationship between the provider and the treating acupuncturists. The insurer alleged that the acupuncturists were independent contractors rather than employees, making the provider ineligible for reimbursement. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, found the insurer precluded from asserting that omitted ground and the related discovery demand palpably improper. It reversed the order, insofar as appealed from, and denied the branch of the insurer's motion seeking the EBT.
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))
December 21, 2012
Neither party established entitlement to summary judgment on the claims reviewed after reargument. The insurer's litigation examiner affidavit failed to establish timely mailing of the denial forms, defeating its motion to dismiss the complaint. The provider likewise failed to show untimely denials or denials that were conclusory, vague, or without merit as a matter of law, as required for its prima facie showing under Insurance Law § 5106 (a). The Appellate Term, Second Department, dismissed the appeal from the superseded original order and modified the reargument order, insofar as reviewed, to deny the provider's cross motion on the first four causes of action. Denial of the insurer's summary judgment motion remained in place.
Parsons Med. Supply, Inc. v Utica Mut. Ins. Co. (2012 NY Slip Op 52397(U))
December 21, 2012
The insurer failed to establish timely EUO requests and tolling of its time to pay or deny the provider's claims. Seeking summary judgment dismissing the assigned no-fault claims, the insurer relied on the provider's principal's failure to appear for an EUO. It did not show that its initial and follow-up requests were timely sent under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Consequently, it failed to establish that the EUO defense was not precluded and was not entitled to summary judgment. The Appellate Term, Second Department, affirmed denial of the insurer's motion, leaving the provider's action pending.
Infinity Health Prods., Ltd. v Liberty Mut. Fire Ins. Co. (2012 NY Slip Op 52396(U))
December 21, 2012
The provider's action was premature because timely verification requests remained unanswered. The insurer's claim specialist affidavit established timely mailing of initial and follow-up requests and the provider's failure to respond; the provider never alleged a response. Under 11 NYCRR 65-3.8 (a), the 30-day period to pay or deny therefore had not begun. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion, in effect, for summary judgment dismissing the complaint. The court expressly reached no other issue.
Avenue I Med., P.C. v GEICO Indem. Co. (2012 NY Slip Op 52399(U))
December 21, 2012
The provider's affidavit failed to establish that its supporting documents proved the fact and amount of the loss sustained. A provider's prima facie showing requires claim submission, proof of the loss and its amount, and either nonpayment or denial beyond 30 days or a timely denial that is conclusory, vague, or legally meritless under Insurance Law § 5106 (a). The affidavit did not establish the requisite evidentiary basis for the annexed documents under CPLR 4518. The Appellate Term, Second Department, affirmed denial of the provider's motion for summary judgment.
Lenox Hill Hosp. v Tower Ins. Co. of N.Y. (2012 NY Slip Op 52391(U))
December 20, 2012
The provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed the order in the assigned no-fault benefits action, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without explaining the deficiency in the provider's showing.