No-Fault Case Law
Valuecare Pharm. Inc v MVAIC (2021 NY Slip Op 50429(U))
May 14, 2021
Untimely discovery objections limit appellate review to privilege or palpable impropriety of the demands. MVAIC failed to object to the provider's interrogatories and notice for discovery and inspection within the 20-day period prescribed by CPLR 3122 (a) and 3133 (a), ignoring them until the provider moved to compel compliance several months later. MVAIC did not argue below that the requested material was privileged under CPLR 3101 or that the demands were palpably improper. The Appellate Term, First Department, therefore affirmed the order, insofar as appealed from, granting the provider's motion to compel discovery in part.
JFL Med. Care, P.C. v ELRAC, Inc. (2021 NY Slip Op 50434(U))
May 14, 2021
The defendant failed to prove mailing of the IME scheduling letters, defeating its summary judgment motion based on nonappearance. Its affidavit did not sufficiently describe an office practice ensuring that the letters were properly addressed and mailed. It therefore failed to establish that the assignor missed duly scheduled IMEs. The provider also failed to establish prima facie entitlement to summary judgment: its affidavit did not show that the claim was untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the defendant's motion to dismiss the complaint and affirmed the denial of the provider's cross motion.
Greenway Med. Supply Corp. v Dollar Rent A Car (2021 NY Slip Op 50439(U))
May 14, 2021
The defendant established lack of coverage, and its out-of-state affidavit's missing certificate of conformity was not fatal. The claims examiner's affidavit established the coverage defense prima facie. Although the affidavit lacked a certificate of conformity required by CPLR 2309 (c) and Real Property Law § 299-a, the defect could be disregarded under CPLR 2001 if no substantial right was prejudiced. The provider showed neither prejudice nor a triable factual issue in opposition. The Appellate Term, Second Department, reversed the order, granted the defendant's motion for summary judgment dismissing the assigned no-fault benefits complaint, and denied the provider's cross motion for summary judgment.
Longevity Med. Supply, Inc. v MVAIC (2021 NY Slip Op 50440(U))
May 14, 2021
The provider's mailing affidavit raised a factual issue as to timely submission of the claims in its second through fifth causes of action. MVAIC established timely denials asserting submission beyond the 45-day limit under 11 NYCRR 65-2.4 (c), but the provider's affidavit created a presumption of timely mailing. The Appellate Term, Second Department, modified the order to deny dismissal of those causes of action. Dismissal of the first cause of action remained affirmed because MVAIC need not attach the medical records reviewed by its peer reviewer. Dismissal of the sixth remained affirmed because the provider's affidavit did not raise a triable issue. The denial of the provider's summary judgment cross motion also remained affirmed.
Excel Prods., Inc. v Farmington Cas. Co. (2021 NY Slip Op 50441(U))
May 14, 2021
The insurer's initial EUO request, sent more than 30 days after receipt of the claims, was a nullity as to those claims. The insurer therefore failed to establish entitlement to summary judgment based on the provider's EUO nonappearance. Its remaining arguments supporting dismissal were raised for the first time on appeal and were not considered. The provider likewise failed to establish entitlement to summary judgment because its proof did not show untimely denials or timely denials that were conclusory, vague, or legally meritless. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and affirmed the denial of the insurer's motion for summary judgment dismissing the complaint.
First Am. Alliance, Inc. v MVAIC (2021 NY Slip Op 50447(U))
May 14, 2021
MVAIC's 30-day period to deny a claim or request verification runs from receipt, regardless of whether it has determined covered-person status. MVAIC obtained summary judgment dismissing the provider's assigned no-fault benefits complaint on lack of medical necessity grounds. The Appellate Term, Second Department, reversed the order and denied MVAIC's motion. The court rejected MVAIC's contention that the period depended on its determination whether the assignor was a covered person under Insurance Law § 5221 (b) (2). MVAIC failed to establish that it was not precluded from asserting its medical necessity defense.
Active Care Med. Supply Corp. v MVAIC (2021 NY Slip Op 50450(U))
May 14, 2021
MVAIC was entitled to dismissal, but conflicting proof of claim receipt required a hearing to determine whether dismissal would be with prejudice. MVAIC showed receipt in February 2012, timely verification requests, and no response, supporting dismissal as premature without prejudice. The provider's affidavit created a presumption of receipt following mailing in October 2010. If receipt preceded the first verification request by more than 30 days, those requests were untimely, but the action commenced in December 2015 was barred by the three-year limitations period, requiring dismissal with prejudice. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denying MVAIC's summary judgment motion and remitted for a hearing under CPLR 2218 on mailing and receipt to determine the dismissal ground.
Unitrin Advantage Ins. Co. v Dowd (2021 NY Slip Op 03012)
May 11, 2021
A provider's failure to attend a timely requested EUO voids coverage for all claims, rather than only the bill prompting the request. The insurer timely requested an EUO concerning the provider's second claim, for shoulder surgery, and denied all of the provider's claims after the provider failed to appear. The Appellate Division, First Department, reversed the order insofar as appealed from, denied the provider's summary judgment motion and granted the insurer's cross motion. EUO nonappearance breached a condition precedent and voided the policy ab initio. The coverage defense applied to every claim and was not determined bill by bill.
Masigla v MVAIC (2020 NY Slip Op 51612(U))
May 3, 2021
MVAIC failed to prove the assignor's ineligibility at trial because the EUO transcript was inadmissible hearsay. The provider sought benefits in three actions joined for trial, and the parties stipulated to its prima facie case. MVAIC argued that the assignor's possession of an uninsured vehicle for more than 30 days made the assignor a de facto owner and thus unqualified under Insurance Law § 5202 (b) (1). The Civil Court, Kings County, rejected the transcript as an admission against the provider under the doctrine excluding assignor declarations against an assignee. MVAIC also failed to establish witness unavailability under CPLR 3117 (a) (3) (iv). With no admissible proof of disqualification, the court directed judgment for the provider in all three actions.
Parisien v Travelers Ins. Co. (2021 NY Slip Op 50396(U))
April 30, 2021
The provider's requests for lengthy EUO adjournments failed to raise a triable issue concerning the two nonappearances. The Civil Court, Kings County, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion. Affidavits established mailing of the scheduling letters and timely denials, and certified transcripts established nonappearance. Although 11 NYCRR 65-3.5 (e) requires reasonably convenient scheduling, the provider offered no specific alternative dates or support for two- to three-month adjournments beyond a booked medical schedule. The demand for a flat, upfront attendance fee was improper. Because both EUO requests preceded receipt of the bills, the verification notification requirements of 11 NYCRR 65-3.5 and 65-3.6 did not apply. The insurer's remaining requests were denied as academic.