No-Fault Case Law
Dowd v Praetorian Ins. Co. (2012 NY Slip Op 51160(U))
June 25, 2012
The insurer established timely and proper mailing of IME and EUO notices and the assignor's failure to appear. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, those showings established prima facie entitlement to summary judgment dismissing the provider's action for assigned first-party no-fault benefits. The provider did not specifically deny the assignor's nonappearance or raise a triable issue concerning nonappearance, mailing or the reasonableness of the notices. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment and dismissed the complaint.
Richard Denise M.D. P.C. v New York City Tr. Auth. (2012 NY Slip Op 04925)
June 19, 2012
The transit authority's statutory obligation to provide no-fault benefits is subject to the three-year limitations period in CPLR 214 (2). Following M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., the Appellate Division, First Department, found the provider's claim time-barred. It reversed the Appellate Term's order, which had overturned the Civil Court's dismissal, granted the transit authority's motion to dismiss, and dismissed the complaint. The provider's remaining contentions were found unavailing.
Bajaj v GEICO (2012 NY Slip Op 51106(U))
June 18, 2012
A substitute medical expert may support a medical necessity defense at trial without admission of the underlying peer review report. The District Court, Nassau County, denied the provider's directed verdict motion, following Appellate Term precedent permitting expert testimony with a facially sufficient factual basis and medical rationale, limited to the original report's grounds. The report was consulted only to restrict the testimony's scope. The insurer nevertheless failed to carry its burden. Cross-examination undermined its expert's rationale that EMG/NCV testing would not aid treatment during conservative care. The treating provider credibly explained that the tests identified nerve damage and informed treatment and possible surgery. The court rendered judgment for the provider.
Back to Back Chiropractor, P.C. v State Farm Mut. Auto. Ins. Co. (2012 NY Slip Op 51088(U))
June 15, 2012
The provider's failure to object to improper verification demands left the payment period tolled and its claim premature. The insurer proved timely mailing of EUO notices, verification requests and denials, and the provider neither responded nor attended either EUO. Although advance demands for corporate and financial documents exceeded permissible verification under 11 NYCRR 65-3.5 (a) and (b), the provider had to object in writing rather than remain silent. Without an objection, the payment period remained tolled under 11 NYCRR 65-3.8. Nonappearance also violated the condition precedent under 11 NYCRR 65-1.1. The District Court, Suffolk County, granted the insurer's motion under CPLR 3211 (a) (1) and (7) and dismissed the complaint.
Matter of MTA Bus Co. v ACE USA (2012 NY Slip Op 51190(U))
June 13, 2012
The bus company's petition to vacate a loss-transfer arbitration award was untimely under CPLR 7511 (a). The Supreme Court, New York County, denied the petition and confirmed the award favoring the workers' compensation carrier under CPLR 7511 (e). The bus company sought judicial review more than 90 days after receiving the award, arguing that a later letter rejecting its attempted administrative appeal started the period anew. Under 11 NYCRR 65-4.11 (a) (3), the PIP panel's decision was final and binding, with no rehearing or appeal apart from correction of clerical or typographical errors. The letter was not an award. The award was electronically signed, and the court did not reach the substantive coverage or liability challenges.
VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51074(U))
June 11, 2012
The insurer proved timely mailing of IME notices and a denial, as well as the assignor's failure to attend the scheduled IMEs. An employee of the outside scheduling entity established mailing of the notices through standard office practices and procedures. The insurer's claims examiner established timely mailing of the denial based on nonappearance, and the examining physicians' affirmations established the missed IMEs. Those submissions established entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider opposed only through counsel's affirmation, which raised no triable issue. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint.
Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51071(U))
June 11, 2012
The insurer's summary judgment motion based on lack of medical necessity was denied because its peer review showing was insufficient. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, stating only that the affirmed peer review report failed to clearly establish a sufficient medical rationale and factual basis to demonstrate that the services lacked medical necessity.
BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51068(U))
June 11, 2012
The insurer's examining chiropractors established IME nonappearance, and the provider's counsel raised no triable issue in opposition. The Civil Court, Kings County, had found that both sides established their prima facie cases and identified the assignor's attendance at scheduled IMEs as the sole trial issue. Both examining chiropractors submitted affidavits stating that the assignor failed to appear. The provider opposed through counsel's affirmation and did not challenge the finding that the insurer was otherwise entitled to judgment. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
PDG Psychological, P.C. v State Farm Mut. Ins. Co. (2012 NY Slip Op 51067(U))
June 11, 2012
The provider failed to establish misrepresentation warranting vacatur of a dismissal for noncompliance with a discovery order. A conditional order required production of the principal owner's personal tax returns within 30 days and provided for dismissal with prejudice upon an affidavit of noncompliance and settlement of an order. The provider did not contest the insurer's noncompliance submission or proposed dismissal order. Seeking relief under CPLR 5015 (a) (3), the provider failed to demonstrate that it had produced the returns. Its appellate objection to the timing of order settlement under 22 NYCRR 208.33 (a) was unpreserved. The Appellate Term, Second Department, affirmed denial of vacatur, leaving the dismissal with prejudice intact.
Yklik, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51066(U))
June 11, 2012
The insurer failed to establish its IME nonappearance defense because its affidavits identified different entities as the IME scheduler. The Civil Court, Queens County, had found timely and proper denial established and left the IME defense as the sole trial issue. The insurer's litigation examiner stated that it asked one entity to schedule the assignor's IME, but no employee of that entity supplied an affidavit. Instead, an employee of an entity managing a medical practice's administrative requirements stated that the insurer hired that practice to schedule the IMEs. This discrepancy defeated the insurer's showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment dismissing the complaint.