No-Fault Case Law
B.Y., M.D., P.C. v Global Liberty Ins. Co. of N.Y. (2012 NY Slip Op 50156(U))
January 24, 2012
The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution. The providers sought summary judgment for assigned no-fault benefits; the insurer asserted workers' compensation eligibility. The Appellate Term, Second Department, modified the order, insofar as appealed from, to remit the providers' motion for determination after final Board resolution, while affirming the abeyance. It required a prompt application under the Workers' Compensation Law. If the providers failed to file proof of that application within 90 days of the appellate order, the District Court was directed to deny their motion and grant the insurer reverse summary judgment dismissing the complaint, unless the providers showed good cause against dismissal.
Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50155(U))
January 24, 2012
The insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing. The District Court had found that the insurer timely denied the assigned no-fault claim but denied summary judgment because it considered the IME report insufficient. The Appellate Term, Second Department, concluded that the report supplied a factual basis and medical rationale for the doctor's determination. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The appellate court reversed the order, insofar as appealed from, and granted the branch of the insurer's motion seeking summary judgment dismissing the complaint.
A.B. Med. Servs., PLLC v National Grange Mut. Ins. Co. (2012 NY Slip Op 50154(U))
January 24, 2012
A provider may wind up its affairs and recover no-fault benefits for services rendered before revocation of its owner's medical license. The Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion, finding that the provider lacked standing because its owner's license had been suspended. It did not reach the insurer's remaining arguments. Following Kipor Medicine, P.C. v GEICO and A.B. Med. Servs., PLLC v Travelers Indem. Co., the Appellate Term, Second Department, accepted the provider's sole appellate argument concerning recovery for earlier services, reversed the order, and remitted both motions for a new determination.
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2012 NY Slip Op 50152(U))
January 24, 2012
The insurer's specific reasons to question the provider's licensing compliance supported discovery of its financial and tax records. In this assigned no-fault action, the provider's notice of trial and certificate of readiness incorrectly stated that discovery was complete. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, conditionally vacating the notice of trial if the provider failed to produce requested records by trial, including W-2 and 1099 forms and federal tax returns and schedules. Under CPLR 3101 (a), those records could reveal reimbursement ineligibility under Mallela. The licensing defense was not precluded, and the insurer had supplied detailed and specific grounds for pursuing it.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50151(U))
January 24, 2012
The insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity. Although the insurer established timely mailing of its denials, the provider objected that the chiropractor's reports were affirmed rather than sworn under CPLR 2106. One report bore a notary's stamp and signature but lacked an attestation that the chiropractor was sworn or appeared before the notary, failing CPLR 2309 (b). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. It also concluded that, even had the reports been in proper form, the provider's osteopath's affidavit would have rebutted them and raised a triable issue.
New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50150(U))
January 24, 2012
The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer reviews finding lack of medical necessity. The Civil Court had found both parties' prima facie showings established and identified medical necessity as the sole issue for trial in the assigned no-fault action. Each affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. Because the opposing affirmation did not rebut those conclusions, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment, 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.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))
January 24, 2012
An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment. The insurer timely denied the medical-supply claim at issue on appeal and submitted an affirmed peer review with a factual basis and medical rationale. The provider's assertion that it lacked underlying documents did not demonstrate a need for discovery to establish a triable issue under CPLR 3212 (f). Its opposition consisted only of counsel's affirmation, without a practitioner's affidavit rebutting the review. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion of the complaint seeking payment of that claim.
Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U))
January 24, 2012
The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review. The insurer submitted an affirmed report supplying a factual basis and medical rationale for finding the services unnecessary. The provider opposed with an affirmation from a doctor identified in its claim forms as its owner. Because the doctor was a principal of the professional corporation that was a party, the affirmation was inadmissible. Even if considered, it did not meaningfully address the peer review's conclusions. The provider did not challenge the insurer's entitlement to judgment on other grounds. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Neomy Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50145(U))
January 24, 2012
The provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review. In this assigned no-fault action, the insurer established a timely denial based on lack of medical necessity and submitted an affirmed peer review report with a factual basis and medical rationale. That showing shifted the burden to the provider, whose doctor's affidavit sufficiently demonstrated a factual dispute over whether the services were medically necessary. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment dismissing the complaint.
First Help Acupuncture, P.C. v General Assur. Co. (2012 NY Slip Op 50142(U))
January 24, 2012
A provider seeking to restore a case more than one year after it was marked off must show a meritorious claim and a reasonable excuse for delay. The parties stipulated to mark this no-fault action off the trial calendar, and the provider moved to restore it approximately 21 months later. Under 22 NYCRR 208.14 (c) and Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., those showings were required. The provider failed to make the requisite showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying restoration, leaving the insurer successful on that motion.