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April 24, 2007

New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)

https://www.beynensonlaw.com/case-law/new-york-univ-hosp-rusk-inst-v-government-empls-ins-co-2007-ny-slip-op-03671/

Court
Appellate Division, Second Department
Decided
April 24, 2007
Citation
2007 NY Slip Op 03671 · 39 AD3d 832
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Contrasted (cf., but see) in 1 and followed in 7 later decisions (see Cited by)
Issues
Medical necessity Staged accidents, lack of coverage
Legal questions
No covered accident (founded belief) · Claimant's prima facie case on motions (see the maps)
Cite as
New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 (2d Dept 2007)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report. The hospital established a prima facie claim, but the insurer raised factual issues through timely verification requests and a timely denial based on a peer review attributing treatment to a preexisting condition unrelated to a covered accident. Under 11 NYCRR 65-3.8 (b) (4), the report must be released upon written request; the regulation does not require its rationale in the prescribed denial form under 11 NYCRR 65-3.4 (c) (11). The Appellate Division, Second Department, reversed and denied the hospital summary judgment on the second cause of action, while declining to award the insurer summary judgment by searching the record.

Reported in New York Official Reports at New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)

New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co.
2007 NY Slip Op 03671 [39 AD3d 832]
April 24, 2007
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, June 6, 2007
New York University Hospital Rusk Institute et al., Plaintiffs, and Nyack Hospital, as Assignee of Flora Schnee, Respondent,
v
Government Employees Insurance Company, Appellant.

—[*1] Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated May 12, 2006, which granted the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action is denied.

In support of its motion for summary judgment on the second cause of action, the plaintiff Nyack Hospital, as assignee of Flora Schnee (hereinafter Nyack), made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and an affidavit of its biller attesting to the facts that, among other things, the defendant Government Employees Insurance Company (hereinafter GEICO) failed to either pay the bill or issue a timely denial of claim form in 30 days (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). However, in opposition to the motion, GEICO raised triable issues of fact by demonstrating that it timely requested medical verification of the claim, and timely denied it based upon a peer review report concluding that the subject treatment was the result of a preexisting [*2]medical condition and did not arise from a no-fault-covered accident (see Insurance Law § 5102 [a] [1], [b]; 11 NYCRR 65-3.8 [a] [1]; [b] [4]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Accordingly, the Supreme Court should have denied Nyack’s motion for summary judgment on the second cause of action.

Contrary to the Supreme Court’s conclusion, GEICO was not required to set forth a medical rationale in its denial of claim form. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007] [decided herewith]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]).

We decline GEICO’s request to search the record and award summary judgment in its favor on the second cause of action (see Gonzalez v Plain Edge High School Dist., 300 AD2d 540 [2002]).

GEICO’s remaining contention is improperly raised for the first time on appeal (see Castro v Homsun Corp., 34 AD3d 616 [2006]).

Motion by the respondent Nyack Hospital, as assignee of Flora Schnee, on an appeal from an order of the Supreme Court, Nassau County, dated May 12, 2006, to strike Point III of the appellant’s brief, and the addendum thereto, on the ground that they contain and refer to material dehors the record. By decision and order on motion of this Court dated January 12, 2007, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is, [*3]

Ordered that the motion is denied. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

Legal questions (2)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried

Held the insurer raised a triable issue by showing a timely denial based on a peer review concluding the treatment resulted from a preexisting condition and did not arise from a covered accident, so the hospital's summary judgment was reversed.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 16
  • Appellate TermApp Term 170
  • Trial courtsTrial 46
2011, Court of Appeals: 1 decision (1 Defense not shown)2023, Appellate Division: 1 decision (1 Defense established)2022, Appellate Division: 1 decision (1 Defense established)2016, Appellate Division: 1 decision (1 Insurer's motion fails)2015, Appellate Division: 1 decision (1 Insurer's motion fails)2009, Appellate Division: 1 decision (1 Defense not shown)2008, Appellate Division: 1 decision (1 Defense not shown)2007, Appellate Division: 3 decisions (2 Triable issue, 1 Defense not shown)2006, Appellate Division: 1 decision (1 Insurer's motion fails)2005, Appellate Division: 2 decisions (2 Defense not shown)2004, Appellate Division: 3 decisions (3 Defense not shown)2026, Appellate Division: 1 decision (1 Defense not shown)2021, Appellate Term: 1 decision (1 Insurer's motion fails)2019, Appellate Term: 4 decisions (2 Defense established, 1 Triable issue, 1 Insurer's motion fails)2018, Appellate Term: 5 decisions (4 Defense established, 1 Triable issue)2017, Appellate Term: 8 decisions (2 Defense established, 2 Triable issue, 3 Insurer's motion fails, 1 Defense not shown)2016, Appellate Term: 1 decision (1 Insurer's motion fails)2015, Appellate Term: 1 decision (1 Defense established)2014, Appellate Term: 1 decision (1 Defense established)2012, Appellate Term: 3 decisions (2 Defense established, 1 Defense not shown)2011, Appellate Term: 4 decisions (2 Triable issue, 2 Insurer's motion fails)2010, Appellate Term: 2 decisions (1 Defense established, 1 Triable issue)2009, Appellate Term: 13 decisions (5 Defense established, 5 Triable issue, 3 Defense not shown)2008, Appellate Term: 9 decisions (3 Triable issue, 6 Defense not shown)2007, Appellate Term: 23 decisions (13 Triable issue, 2 Insurer's motion fails, 8 Defense not shown)2006, Appellate Term: 30 decisions (21 Triable issue, 9 Defense not shown)2005, Appellate Term: 37 decisions (1 Defense established, 24 Triable issue, 12 Defense not shown)2004, Appellate Term: 22 decisions (16 Triable issue, 6 Defense not shown)2003, Appellate Term: 1 decision (1 Defense not shown)2024, Appellate Term: 1 decision (1 Insurer's motion fails)2025, Appellate Term: 2 decisions (1 Defense established, 1 Insurer's motion fails)2013, Appellate Term: 1 decision (1 Defense established)2023, Appellate Term: 1 decision (1 Triable issue)2023, Trial courts: 2 decisions (2 Insurer's motion fails)2020, Trial courts: 1 decision (1 Insurer's motion fails)2019, Trial courts: 3 decisions (1 Defense established, 1 Triable issue, 1 Defense not shown)2016, Trial courts: 1 decision (1 Insurer's motion fails)2013, Trial courts: 1 decision (1 Triable issue)2011, Trial courts: 2 decisions (2 Defense not shown)2010, Trial courts: 2 decisions (1 Triable issue, 1 Defense not shown)2008, Trial courts: 5 decisions (1 Defense established, 2 Triable issue, 2 Defense not shown)2007, Trial courts: 3 decisions (1 Defense established, 2 Triable issue)2006, Trial courts: 7 decisions (2 Defense established, 5 Defense not shown)2005, Trial courts: 7 decisions (1 Defense established, 6 Defense not shown)2004, Trial courts: 5 decisions (5 Defense not shown)2026, Trial courts: 6 decisions (2 Defense established, 3 Triable issue, 1 Insurer's motion fails)2014, Trial courts: 1 decision (1 Defense not shown)This decision
20052010201520202025
Defense establishedTriable issueInsurer's motion failsDefense not shownThis decision

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the hospital made its prima facie showing with the billing form, certified mail and return receipts referencing the patient, and its biller's affidavit of nonpayment, though the insurer raised triable issues.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 80
  • Appellate TermApp Term 843
  • Trial courtsTrial 138
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 15 decisions (12 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 14 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.

Cited in this decision

  • Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 08214)An insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification.
  • A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
  • A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)An insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.

Cited by (33)

A label shows how the later decision treated this one.

  • New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376) Contrasted (cf., but see)The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.
  • A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635) FollowedAn insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.
  • Dilon Med. Supply Corp. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 52454(U)) FollowedAn insurer may call a substitute medical expert, subject to cross-examination, to address the original peer reviews' rationale.
  • Westchester Med. Ctr. v Lancer Ins. Co. (2012 NY Slip Op 02867) FollowedThe insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received.
  • Quality Health Prods., P.C. v Progressive Ins. Co. (2008 NY Slip Op 51757(U)) FollowedThe insurer failed to prove IME nonappearance on two claims, but its peer review raised a medical-necessity issue on the third.
  • Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166) FollowedAn insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.
  • Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28341) FollowedAn insurer's failure to supply a requested peer review report does not preclude its medical-necessity defense.
  • Krishna v Liberty Mut. Ins. Co. (2009 NY Slip Op 51312(U)) FollowedThe insurer's amplified peer review raised a triable issue as to the medical necessity of the provider's services and diagnostic tests.
  • Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 08038)The hospital's claim was premature because unrebutted proof showed that it ignored timely verification and follow-up requests.
  • A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
Show all 33 citing decisions
  • Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2008 NY Slip Op 04867)
  • Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)
  • NYU Hosp. for Joint Diseases v Country Wide Ins. Co. (2011 NY Slip Op 04219)
  • Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2007 NY Slip Op 09770)
  • New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. (2014 NY Slip Op 03812)
  • New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co. (2009 NY Slip Op 52211(U))
  • JYW Med., P.C. v IDS Prop. Ins. Co. (2017 NY Slip Op 51800(U))
  • NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))
  • Andrew Carothers, M.D., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51613(U))
  • Med-Tech Prods., Inc. v Geico Ins. Co. (2009 NY Slip Op 52111(U))
  • IAV Med. Supply, Inc. v Progressive Ins. Co. (2010 NY Slip Op 50433(U))
  • LVOV Acupuncture, P.C. v GEICO (2011 NY Slip Op 51844(U))
  • Richard Morgan D.O., P.C. v GEICO Indem. Co. (2009 NY Slip Op 50332(U))
  • Astoria Quality Med. Supply v MVAIC (2007 NY Slip Op 52275(U))
  • Odessa Med. Supply, Inc. (b) v Government Employees Ins. Co. (2007 NY Slip Op 27542)
  • Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 50869(U))
  • Struhl v Alea N. Am. Ins. Co. (2008 NY Slip Op 51113(U))
  • Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51858(U))
  • Al Correa, Neurologist, P.C. v Progressive Northeastern Ins. Co. (2009 NY Slip Op 51356(U))
  • Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2009 NY Slip Op 52122(U))
  • Richmond Radiology, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52210(U))
  • Staten Is. Advanced Surgical Supply v GEICO Ins. Co. (2009 NY Slip Op 52633(U))
  • Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co. (2010 NY Slip Op 50445(U))

Similar decisions

  • New York & Presbyt. Hosp. v Countrywide Ins. Co. (2007 NY Slip Op 07675)The insurer raised verification and billing-date issues on one claim, but failed to rebut proof of receipt of verification on another.
  • New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co. (2006 NY Slip Op 06223)The insurers were precluded from contesting a hospital claim because they failed to establish that their denial letter met regulatory requirements.
  • Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 08447)The hospital failed to establish that the insurer's timely NF-10 denial was too vague or deficient to constitute a proper response.
  • Mount Sinai Hosp. v Government Empls. Ins. Co. (2011 NY Slip Op 05679)The insurer raised a triable issue as to whether it issued a denial of claim form to the hospital.
  • New York & Presbyt. Hosp. v Government Empls. Ins. Co. (2005 NY Slip Op 02813)A hospital raised a triable issue whether the insurer's first verification request preceded submission of its claim.
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