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EUO to nowehere December 18, 2021

Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co., 2021 NY Slip Op 51170(U)(App. Term 2d Dept. 2021)

“defendant’s moving papers contain a copy of plaintiff’s assignor’s sworn application for no-fault benefits in which plaintiff’s assignor swore that she was passenger in defendant’s insured’s vehicle when the accident occurred. In addition, although defendant’s moving papers contain a statement by defendant’s attorney that plaintiff’s assignor appeared for an examination under oath, what transpired at the [*2]examination under oath is not set forth. As such, contrary to defendant’s contention, defendant’s moving papers do not establish, prima facie, that plaintiff’s assignor was not a passenger in defendant’s insured’s vehicle when the accident occurred “

An appeal that makes you say why.

Licensure December 18, 2021

Veraso Med. Supply Corp. v Nationwide Ins., 2021 NY Slip Op 51167(U)(App. Term 2d Dept. 2021)

“At trial, defendant sought to prove that plaintiff, a medical supply company located in Brooklyn, New York, is not eligible to recover pursuant to 11 NYCRR 65-3.16 (a) (12), which states, insofar as is relevant here, that “a provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York.” Contrary to plaintiff’s contention, the proof adduced at trial was sufficient to establish by a preponderance of the credible evidence that plaintiff had failed to comply with the [*2]local licensing requirements (see Administrative Code of City of NY § 20-425; 6 RCNY § 2-271). Plaintiff’s remaining contentions are raised for the first time on appeal and we decline to consider them.”

I look at these cases as plainly licensing cases. Compare these to cases where the Appellate Division held the self-referral provision of the PHL does not fit within “(a)(12)” or that a Mallela violation has to be willful and not just technical. I would like to say that services rendered by a practitioner with an accidentally expired license that is subsequently fixed would be treated as a “dejure” corporation and, if fixed, able to bill. But I know that is not the answer, why?

But does anybody remember this beauty: Hu-Nam-Nam v New York Cent. Mut. Fire Ins. Co., 54 Misc. 3d 43 [App. Term 2d Dept. 2016)

“A billing provider seeking to recover no-fault benefits for services rendered to an assignor must provide, at the bottom of the claim form, a taxpayer identification number either in the form of a Social Security number or an employer identification number. Social Security numbers are used to identify individual persons, while employer identification numbers are used to identify employers (see 26 CFR 301.6109-1 [a] [1] [ii]). “An individual . . . who is an employer or who is engaged in a trade or business as a sole proprietor should use an employer identification number” (26 CFR 301.6109-1 [a] [1] [ii] [D]), since an employer identification number is required if the taxpayer “[p]ay[s] wages to one or more employees” (Internal Revenue Service Publication No. 334 [Tax Guide for Small Business], ch 1 [2015]). Thus, it is permissible for a billing provider operating [*45]  as a sole proprietor to use his or her own Social Security number on the claim form if it is the billing provider who rendered the services in question. However, where, as here, a doctor bills for services rendered by a treating provider in that doctor’s employ, it is impermissible for the doctor [***3]  to bill using his or her own Social Security number.

As defendant demonstrated that the claim form submitted by plaintiff was for services performed by plaintiff’s employee, that the claim form was submitted under plaintiff’s Social Security number, and that the denial of claim form based upon improper billing was mailed within 30 days of defendant’s receipt of the claim form, defendant established its entitlement to summary judgment.”

There you go.

When an insured becomes a self insured when it sees fit December 18, 2021

Midwood Total Rehab Med., P.C. v Republic W. Ins. Co., 2021 NY Slip Op 51205(U)(App. Term 2d Dept. 2021)

“A review of the record reveals that defendant has established, as a matter of law, that the vehicle in which plaintiff’s assignor was a passenger when the accident occurred was owned by U-Haul, Inc., that the vehicle was self-insured by U-Haul, Inc., that defendant did not insure the subject vehicle, and that defendant was a third-party claims handler which processed claims on behalf of U-Haul, Inc. In addition, the affidavit by plaintiff’s owner demonstrated that the claim at issue was mailed to defendant on December 22, 2010 and the action was not commenced until November 22, 2016. Consequently, defendant’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations applicable to self-insurers “

I do not know the issue to properly comment. However, is U-Haul a self-insured that hides behind another insurance company solely as a TPA, i.e., has filed a bond with the State? Or, does U-Haul pay Repwest for its paper but acts a self insured? I do not know and, therefore, cannot comment as to whether the 3 or 6 year SOL applies.

I see this issue as Contact Chiropractic being a complete cluster for all of us. Another issue the Legislature needs to ponder.

Unitrin and Lincoln General again December 18, 2021

We will never see an end of Unitrin discussions. I think 14 years ago, it was believed an appellate consensus would have been reached.

Island Life Chiropractic Pain Care, PLLC v 21st Century Ins. Co., 2021 NY Slip Op 21340 (App. Term 2d Dept. 2021)

 On appeal, plaintiff argues that defendant was required to deny all three claims within 30 days of plaintiff’s assignor’s failure to appear for the second scheduled EUO, on January 22, 2015, and therefore that defendant is precluded from raising this defense.

(1) “Plaintiff correctly argues that defendant, by claiming that it had mailed the denial of the November 26, 2014 claim on February 24, 2015, failed to establish, under the circumstances presented, that it had timely denied that claim. A no-fault claim must be paid or denied “within 30 calendar days after the insurer receives proof of claim” (11 NYCRR 65-3.8 [a] [1]; see e.g. New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). While it is not disputed on this appeal that defendant tolled its time to pay or deny the November 26, 2014 claim by timely scheduling an EUO of plaintiff’s assignor (see 11 NYCRR 65-3.8 [a] [1]; see also e.g. Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157 [2013]; Longevity Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 44 Misc 3d 137[A], 2014 NY Slip Op 51244[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), the toll ended when plaintiff’s assignor failed to appear at the second EUO on January 22, 2015 (Quality Health Supply Corp. v Nationwide Ins., 69 Misc 3d 133[A], 2020 NY Slip Op 51226[U], *1-2 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]). As defendant did not demonstrate that it denied the November 26, 2014 claim within 30 days of the end of the toll, it has not demonstrated that it is not precluded from raising its proffered EUO no-show defense (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; see also Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192) as to that claim, and the branch of defendant’s motion seeking summary judgment dismissing the November 26, 2014 claim should have been denied.”

(2) “However, there is no merit to plaintiff’s argument that the branch of defendant’s motion seeking summary judgment dismissing the February 13, 2015 claims should have been denied because defendant was similarly required to deny those claims within 30 days of plaintiff’s assignor’s failure to appear on January 22, 2015. Rather, defendant demonstrated that those claims were properly denied on March 2, 2015, within 30 days of their receipt, based upon the prior nonappearance (see 11 NYCRR § 65-3.8 [a]; ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

(3) “It has been long held that “[t]he failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath . . . is a material breach of the [no-fault] policy, precluding recovery of the policy proceeds” (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014] [internal quotation marks omitted]; see Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d 192 [2018]). While this failure has been termed “a breach of a condition precedent to coverage under the no-fault policy” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011]; see Quality Health Supply Corp. v Nationwide Ins., 2020 NY Slip Op 51226[U]), it is more appropriately characterized as a “breach of an existing policy condition” (Nationwide Affinity Ins. Co. of Am. v Jamaica Wellness Med., P.C., 167 AD3d at 197). It would be contrary to 11 NYCRR 65-3.8 (a) (1), and, in effect, render that subdivision a nullity, if, as plaintiff suggests, a no-show defense were to expire 30 days after the second nonappearance—in this instance, defendant’s time to pay [*3]or deny the February 13, 2015 claims would have expired well before the 30 days permitted by the regulations. Indeed, under plaintiff’s interpretation, an eligible injured person and his or her assignees could simply wait 30 days after failing to appear to submit any new claims, and the insurer would then be prohibited from denying those claims based upon the nonappearance”

(4) “To the extent that plaintiff argues that a failure to timely deny any one claim based upon a nonappearance at an EUO or IME once that defense has accrued constitutes a waiver of the right to thereafter assert that defense as to any and all subsequent claims submitted upon the same covered event, that argument is without merit. In other words, defendant’s failure to timely deny the November 26, 2014 claim based on the January 22, 2015 nonappearance was not a waiver of defendant’s right to timely deny, as it did, the February 13, 2015 claims based upon the same prior nonappearance (see ARCO Med. NY, P.C. v Lancer Ins. Co., 2011 NY Slip Op 52382[U]). Each such claim is treated on an individual basis (cf. Shtarkman v Allstate Ins. Co., 8 Misc 3d 129[A], 2005 NY Slip Op 51028[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005] [a “blanket” or “general” denial purporting to deny all future claims does not constitute a valid denial of any subsequent claim]; A & S Med. v Allstate Ins. Co., 196 Misc 2d 322 [App Term, 1st Dept 2003], affd 15 AD3d 170 [2005]). We note that, in this respect, EUO and IME nonappearances are treated differently from the failure to provide requested written verification, which is only a proper basis for the denial of claims for which the written verification was specifically requested and cannot, based on the regulations and the case law, be asserted as a basis for a denial of any subsequently submitted claim (see 11 NYCRR 65-3.8 [b] [3]; see generally Shtarkman v Allstate Ins. Co., 2005 NY Slip Op 51028[U]; A & S Med. v Allstate Ins. Co., 196 Misc 2d 322).”

So what is happening here? An argument is made that a disclaimer for a no-show has to be made no later than 30-days after the no show. Therefore, a disclaimer within 30-days following receipt of a bill is untimely. The Court correctly observed this contravenes 3.8(a)(1). It also contravenes 5106(a),

The again cites Nationwide as making more sense that Unitrin, That is old news. But the Court stated in essence that the 120-day rule does not apply to verifications that are keyed by an IME or EUO. Interesting.

The New York experience at the Appellate Courts from a PIP perspective: My end of year observations. December 18, 2021

In the post 2020 environment where an expensive record on appeal is necessary to obtain review in the Appellate Term Second Department, the volume of appeals has significantly decreased. While I favor less dumb interlocutory appeals that diminish the Appellate Term, Second Department’s previous atrocious backlog, it is unfair to force litigants to pay $5,000 in record and brief costs on these appeals. While I know the record rules are implicitly geared towards 325(d) matters, no-fault and consumer debt appeals (by the plaintiff), I think the rule has gone overboard.

I believe as we become an electronic filing state in all courts, we should seriously consider a way to compel the clerk to file an electronic record on appeal with the appropriate appellate court and to have the parties pay for the clerk’s time and effort. A modest fee to produce a record on appeal is fair. This is what they do in Florida on final appeals and it works very well. When I seek discretionary relief, I have to assemble an appendix; again, not a terrible adventure because the CPLR and NYCRR rules regarding headings, pagination and bookmarking does not exist. We also do not have Mrs. Garrone who is the most meticulous clerk I have ever met. Parenthetically, I wish I had her attention to detail – it is one of a kind. She is also never wrong. Back to my post, a modest increase in the Notice of Appeal fee should also be considered to balance the equities and to force the appellant to really consider whether the appeal is bona fide or just a delay/harassment tactic. As a litigant, I feel like I am being held hostage to appellate printing companies. This is not right.

Yes, I can generate my own appendix and record on appeal. I have done that many times. Actually, we cannot use an appendix at the Appellate Term (read the rules) and the NYCCCA/UDCA/UCCA/UJCA prevents us from settling our own transcripts (more nonsense). These are two terrible provisions that lower court appellants must endure that Appellate Division practitioners get to avoid.

Additionally, the technical specifications that the rules of Court and the CPLR place on the record producing and appellate brief creating makes it daunting and otherwise problematic to do it yourself. With the new bookmarking, hyperlinking and providing all cases cited in the brief provision of the Rules, the Courts are making it more prohibitive to be a self-serve appellate lawyer on a modest budget. This in turn, I think, raises due process issues and other problems. A CPLR and rule revision committee should be established at this juncture. To me, the Rules and the CPLR are out of touch with 21st century practice. While I understand that vehicles are more difficult to maintain oneself, the opposite should hold true for appellate preparation.

Should we have a new Appellate Department to deal with the Second Department backlogs? It is unfair to wait 2-3 years for matters to be decided. It almost forces litigants who know appellate intervention is necessary to resolve a matter only involving legal issues that will be resoled on de-novo standard to bring the matter in Courts sitting in the First Department because the end of the litigation is always in sight, I can actually forget about cases I have pending in the Second Department because the backlog is tremendous. Now, I do not want anyone at the Second Department to takes this as a slight. With the volume of causes that Court handles, it is impossible for them to do more.

I can also tell you as a practitioner that the backlog makes it highly unlikely that leave applications from the Appellate Term, Second Department will be granted unless the issue involves a very important matter. Think Carothers. Issues that are incorrectly decided by the Appellate Term but not significant to invoke the Appellate Division’s time will often be declined second level appeal. Consider how many times 4518 and the prima facie case requirement escaped Second Department review until Etienne? This should not be the case.

Can we dispense with paper records and paper briefs permanently? Can we compel the Clerk to produce a record on appeal or Appendix (again only when the system becomes an EFC system)? Should we consider transferring certain “technical” portions of the CPLR to the Chief Administrative Judge to allow the fluidity that is necessary to deal with changes that life and practice bring? For instance, why does CPLR 2106 still prevent the use of “declarations” or “affirmations” by all persons? Does a Note of Issue/ Notice of Trial requirement make sense when conditions always change in what is 3-10 year of litigation? The legislature really should not be deciding the hyper-technical procedural rules that are necessary; it is a task best handled by the Judiciary.

My other question is should the types of interlocutory appeals as of right be limited to summary judgment appeals, motions that affect final judgments, certain 3211 issues, class action issues and other issues of great importance that need to be decided on an expedited basis? Perhaps discovery appeals and other procedural applications (denied defaults) should be appealable by permission only? In so doing, a showing of success on the merits and prejudice if one has to wait until the end of litigation would be the standard. This would mean a showing that will not succeed at first blush will have to wait. It would be nice if the stakeholders looked at ways of making practicing in New York less cumbersome and more fluid.

Being a multistate practitioner at this point in my life, I can acutely express where we excel and where we fail. The one feature I do like about our system, and this will sound odd, is that we have an an Appellate Term system. There is something to be said for having trial level judges decide lower court appeals. It adds a level of expertise on nuts and bolts, lower value or specifically delineated matters that we would not see if the cases were routinely handled by the Appellate Divisions. A great example (and I am not going to go into the weeds here) is the First Department’s trying to figure out where to draw the line on “Unitrin’s” no coverage versus adherence to 65-3.5. Every case says something else. The Appellate Terms, whether you like them or not, have given us certain rules in which they usually do not vacillate. Assuming they vacillate (the new severance rule that I fell victim to), they remain consistent with their new rule.

Candidly, I do not think the system is working. Prove me wrong. Or just read this and think to yourself what we should do differently. Finally, the advantage of making this a blog entry and not a submission to the law journal is that I do not have to provide footnotes with authority to support my factual assertions. But, if you think I am factually wrong, let me know: I can support everything I am saying here.