An assignment without proof of partial performance on the EIP’s part necessitates dismissal April 1, 2019

Noel v Nationwide Ins. Co. of Am., 2019 NY Slip Op 02348 (2d Dept. 2019)

(1) ” The Supreme Court denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(1) and (7), and in effect denied those branches of the defendant’s motion which were pursuant to CPLR 3211(a)(3) and CPLR 3212, on the grounds that the motion was premature due to outstanding disclosure. The defendant appeals. “

(2) ” The defendant demonstrated its prima facie entitlement to judgment as a matter of law by submitting evidence that the plaintiff assigned his right to no-fault benefits to 10 different medical providers (see Alvarez v Prospect Hosp., 68 NY2d 320; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851). In opposition, the plaintiff failed to raise a triable issue of fact (cfAbruscato v Allstate Prop. & Cas. Ins. Co., 165 AD3d 1209). “


Abruscato is an interesting case. There, the EIP was sent bills and a causal relationship disclaimer was issued. Often times, we see treatment on a lien based upon a medical necessity denial. Assume that the EIP pays the provider and presents proof of payment, does he or she have a case against the carrier despite the presence of an AOB? My vote is yes, despite the non-existence of a revocation of assignment. We shall see what the Appellate Division says.

Confirmed April 1, 2019

Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 2019 NY Slip Op 02338 (2d Dept. 2019)

“The master arbitrator’s determination of the law need not be correct: mere errors of law are insufficient to set aside the award of a master arbitrator” (Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d at 577). “If the master arbitrator vacates the arbitrator’s award based upon an alleged error of a rule of substantive law,’ the determination of the master arbitrator must be upheld unless it is irrational” (id. at 576; see Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d at 829). Here, we agree with the Supreme Court’s determination vacating the master arbitrator’s determination, as there was no rational basis to support it.

What was the error of substantive law that that Supreme Court felt needed was wrong and required reversal?

Trial De Novo defaults April 1, 2019

Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 2019 NY Slip Op 02317 (2d Dept. 2019)

(1) ” The plaintiff, a no-fault insurance carrier, commenced this action seeking a de novo adjudication of an insurance dispute concerning the denial of a no-fault claim involving the defendant (see Insurance Law § 5106[c]). The plaintiff sought a judgment declaring that the plaintiff is not obligated to pay the claim for no-fault insurance benefits submitted by the defendant on behalf of its assignor John Thomas, on the grounds that the services were not medically necessary, were not related to the subject motor vehicle accident, and/or were billed in excess of the fee schedule. The defendant had been awarded more than $5,000 against the plaintiff as a result of a master arbitration award. “

(2) “On a motion for leave to enter a default judgment pursuant to CPLR 3215, the movant is required to file proof of (1) service of the summons and complaint, (2) the facts constituting the claim, and (3) the other party’s default (see CPLR 3215[f]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768, 769; Liberty County Mut. v Avenue I Med., P.C., 129 AD3d 783, 784-785; Fried v Jacob Holding, Inc., 110 AD3d 56, 59). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602).”

(3) “It also submitted, inter alia, a copy of the complaint verified by its attorney (see CPLR 105[u]; 3020[d][3]; 3215[f]; Clarke v Liberty Mut. Fire Ins. Co., 150 AD3d 1192, 1195; Martin v Zangrillo, 186 AD2d 724), its expert’s affirmed peer review, the arbitration award in excess of $5,000, and the master arbitration award confirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d at 770). The defendant failed to oppose the plaintiff’s motion (see Fried v Jacob Holding, Inc., 110 AD3d at 60).”

Actually, you need to show April 1, 2019

Actual Chiropractic, P.C. v State Farm Ins., 2019 NY Slip Op 50421(U)(App. Term 2d Dept. 2019)

” Contrary to plaintiff’s contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate “as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; Palafox PT, P.C. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; cf. American Tr. Ins. Co. v Jaga Med. Servs., P.C., 128 AD3d 441 [2015]). Here, defendant established that initial and follow-up letters scheduling an EUO had been timely mailed”

I love the “c.f.” to Jaga. It is almost like the proverbial well, you the reader can figure it out. We know what the First Department said in passing and, yes, they are wrong. Having seen Dr. Khait testify, I can see why he went down the proverbial objection letter no-show hell.

EUO’s and the need for a justification to conduct them April 1, 2019

Bronx Chiropractic Care, P.C. v State Farm Ins., 2019 NY Slip Op 50423(U)(App. Term 2d Dept. 2019)

“The record reflects that plaintiff, in effect, objected to defendant’s EUO scheduling letters in connection with assignor Rosemary Leon on the ground that the letters did not set forth the objective standards on which the EUO demands were based or sufficiently specify the reasons for the demands, and further requested that defendant provide both the objective standards and reasons for the demands. Since plaintiff failed to submit proof that it had mailed an objection letter in connection with assignor Adris Maria, plaintiff’s argument with respect to that assignor lacks any basis (see e.g. Professional Health Imaging, P.C. v State Farm Mut. Aut. Ins. Co., 52 Misc 3d 132[A], 2016 NY Slip Op 50997[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Defendant was not required to provide the reason for its demand for an EUO in response to an objection from plaintiff. “No ‘provision of No-Fault Regulations 68 requires an insurer’s notice of scheduling an EUO to specify the reason(s) why the insurer is requiring the EUOs’ ” (Flow Chiropractic, P.C. v Travelers Home & Mar. Ins. Co.,44 Misc 3d 132[A], 2014 NY Slip Op 51142[U], *1 [App Term, 2d Dept, 9th & 10th Jud Dists 2014], quoting Ops Gen Counsel NY Ins Dept No. 06-12-16 [December 2006]). Similarly, “[t]here is no requirement in the [*2]regulation that a No-Fault insurer must provide a copy of their internal guidelines [regarding objective justification] for requiring an EUO upon the request of a claimant for benefits” (Ops Gen Counsel NY Ins Dept No. 02-10-14 [October 2002]). The Department of Financial Services’[FN1]interpretation of the No-Fault Regulations is entitled to deference unless that interpretation is ” ‘irrational’ ” or ” ‘unreasonable’ ” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006], quoting Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996]), which is not the case here. Since defendant was not required to provide—either in its scheduling letters or in response to an objection from plaintiff—the reason for its demand or the objective standards upon which its EUO demands were based, and since that is the only ground for plaintiff’s appeal, there is no basis to disturb the order appealed from.”

This proves to be interesting. A carrier can demand a timely EUO and from another case I read cannot demand prepayment of the attendance fee. I suspect the issue of serial EUO’s where circumstances have not changed may form the next wave of litigation.