Appellate Division, Second Department
Dec 29, 2003
2003 NY Slip Op 19994
Provider prevailed
The insurer's intentional default was not excusable because it sought vacatur only after the provider moved for contempt. The Appellate Division, Second Department, reversed the order, insofar as appealed from, denied the insurer's cross motion, and reinstated the provider's unopposed summary judgment order and resulting judgment. Under CPLR 5015, vacatur requires both a reasonable excuse and a meritorious defense. The insurer knew of the default judgment but took no steps to vacate it until the provider sought contempt relief for noncompliance with an information subpoena issued to enforce the judgment. That conduct constituted an intentional, inexcusable default.
Appellate Division, Third Department
Dec 4, 2003
2003 NY Slip Op 19071
Provider prevailed
The disabled automobile remained in use or operation while its driver sought assistance to retrieve it. The Appellate Division, Third Department, affirmed a judgment after a bench trial awarding no-fault benefits to an injured snowmobile operator under Insurance Law § 5103 (a) (1). The snowmobile struck the locked, unoccupied automobile after it stalled and was pushed to the road's shoulder against a snowbank. The driver activated hazard lights, unsuccessfully attempted a jump start, and left to obtain towing assistance. Unlike voluntary overnight parking, the unplanned stop, unusual parking location, and efforts to retrieve the vehicle as soon as possible constituted ongoing activity relating to the vehicle.
Appellate Term, Second Department
Dec 24, 2003
2003 NY Slip Op 51701(U)
Split result
A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded. The insurer's timely medical-necessity denial was conclusory and lacked a factual basis or medical rationale; a physician's affirmation nine months later did not cure preclusion under 11 NYCRR 65-3.8 (b) (4). The Appellate Term, Second Department, modified the order to grant partial summary judgment to the provider and remanded for statutory interest, attorney fees, and proceedings on the balance. The provider's own motion documents showed that two invoiced items were not prescribed. Having raised that factual issue, the provider was estopped from invoking waiver to defeat that defense. Insurance Law § 5106 (a) governed proof of loss and overdue benefits.
Appellate Term, Second Department
Dec 24, 2003
2003 NY Slip Op 51700(U)
Provider prevailed
A provider need not submit additional medical-necessity evidence to obtain summary judgment when the insurer is precluded from that defense. The insurer failed to pay or deny the claim within 30 days after receiving requested verification under 11 NYCRR 65-3.8 (a) (1) and (c). It nevertheless argued that the provider had to establish medical necessity through admissible evidence beyond its completed claim forms. The Appellate Term, Second Department, rejected that argument and affirmed summary judgment for the provider. Properly completed forms established the fact and amount of loss under Insurance Law § 5106 (a); requiring more would undermine prompt claim resolution. The matter was remanded for interest and attorney fees under 11 NYCRR 65-3.9 (a) and 65-3.10 (a).
Appellate Term, Second Department
Dec 24, 2003
2003 NY Slip Op 23978
Split result
The insurer's investigator's affidavit failed to raise a triable issue that the collision was staged. The Appellate Term, Second Department, modified the order to grant the providers partial summary judgment on claims supported by completed claim forms, while affirming denial as to one claim omitted from the motion papers. Although a staged-accident defense survives an untimely denial, allegations of suspicious prior accidents involving the insured and a recommendation to investigate the assignor were speculative. The insurer failed to prove timely EUO requests under 11 NYCRR 65-3.5 (a); the requests also could not toll the 30-day determination period because former 11 NYCRR 65.12 (d) did not authorize EUOs. The matter was remanded for statutory interest and attorney fees under Insurance Law § 5106 (a) and proceedings on the remaining claim.
Appellate Term, Second Department
Dec 24, 2003
2003 NY Slip Op 51702(U)
Provider prevailed
An insurer that fails to deny a no-fault claim within 30 days of receipt is precluded from asserting lack of medical necessity. The Appellate Term, Second Department, affirmed denial of the insurer's discovery motion and grant of the provider's summary judgment cross motion. The provider's submitted claim established its prima facie case for the reasons stated in the companion appeal decided the same day, Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., No. 2002-999 S C. The insurer's untimely denial triggered preclusion under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The matter was remanded for interest and attorney fees under 11 NYCRR 65-3.9 (a) and 65-3.10 (a).
Appellate Term, Second Department
Dec 22, 2003
2003 NY Slip Op 51681(U)
Provider prevailed
Medical equipment reimbursement is governed by the 150-percent-of-cost fee schedule rather than prevailing local rates. The insurer objected that the provider's equipment prices exceeded prevailing rates in its geographic location. The Appellate Term, Second Department, reversed denial of the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney fees. Reference to prevailing local fees under 11 NYCRR 68.5 (b) applies only when no applicable fee schedule exists. The 150-percent limitation in 11 NYCRR Appendix 17-C, Part E (b) (1) constitutes such a schedule. The court treated the rule as serving Insurance Law § 5108's cost-containment purpose; challenges to its premises call for remedial legislation.
Appellate Term, Second Department
Dec 22, 2003
2003 NY Slip Op 51687(U)
Insurer prevailed
The insurer's affirmed peer review raised a triable issue of medical necessity by supplying a sufficient factual basis and medical rationale. The provider moved for summary judgment on claims for medical services, submitting its claim forms and the insurer's denial based on an affirmed peer review. The Appellate Term, Second Department, affirmed denial of the provider's motion. Under 11 NYCRR 65-3.8 (b) (4), lack of medical necessity may be supported by either a medical examination or a sufficiently detailed peer review. The insurer's file-based review met that standard.
Appellate Term, Second Department
Dec 22, 2003
2003 NY Slip Op 51680(U)
Provider prevailed
The provider's summary judgment motion was granted on appeal despite the insurer's prevailing-local-rate objection to equipment prices. The Appellate Term, Second Department, reversed and remanded for interest and attorney fees. The insurer preserved no other proper defense, and the court relied on the reasons stated in the companion appeal decided the same day, No. 2003-50 S C, concerning 11 NYCRR 68.5 (b).
Appellate Term, Second Department
Dec 22, 2003
2003 NY Slip Op 51693(U)
The petitioning insurer's application to vacate no-fault and uninsured motorist arbitration awards was denied. The Appellate Term, Second Department, affirmed, finding no showing of an unsupported, arbitrary and capricious no-fault award or excess or imperfect execution of power on the uninsured motorist award under CPLR 7511 (b) (1) (iii). The opposing insurer's confirmation cross petition was not reviewed because it had not cross-appealed.
Appellate Term, Second Department
Dec 9, 2003
2003 NY Slip Op 23949
Provider prevailed
A provider need not prove medical necessity at the claim stage or on a subsequent motion for summary judgment. The Appellate Term, Second Department, reversed the order and granted two providers summary judgment on all four claims for which they sought relief. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), the insurer's failure to timely deliver a determination on one chiropractic claim precluded its objections; it showed no action after timely verification responses on the other. The medical provider proved claim mailing on September 24, 2001; the insurer's March 2002 verification requests were untimely under 11 NYCRR 65-3.5 (a) and 65-3.6 (b). The matter was remanded for statutory interest, attorney fees, and further proceedings on the remainder of the action.
Trial court, Second Department
Dec 26, 2003
2003 NY Slip Op 51560(U)
Split result
An insurer must show a timely medical-necessity denial before deposing a provider on that defense. In 48 actions joined for the motion, the District Court, Nassau County, conditionally granted protective orders under CPLR 3103 (a) absent that showing or a good-faith fraud or lack-of-coverage defense, while preserving deposition stipulations. Under CPLR 3101 (a), discovery was available regardless of the burden of proof; the depositions were not merely repetitive of interrogatories. Failure to request an EUO or verification did not bar litigation discovery. The court denied requests to substitute nonparty consultants and for supervision under CPLR 3104 (a), leaving the insurer's deposition witness unresolved pending a proper motion. It denied the insurer's sanctions request under 22 NYCRR 130-1.1 because the providers' motion was not frivolous.
Trial court, Second Department
Dec 23, 2003
2003 NY Slip Op 23923
Provider prevailed
A chiropractor may prescribe TENS units and similar equipment because they are not drugs or medicines under Education Law § 6551 (3). The Civil Court, Queens County, denied the insurer's summary judgment motion against a medical equipment supplier. The court found the prescribed equipment permissible and noted that 11 NYCRR part 68, Appendix 17-C, part E (b) (1) did not prohibit chiropractic prescriptions filled by suppliers. The insurer omitted the complaint, contrary to CPLR 3212 (b), and its cited peer review report. The report, supplied by the provider, questioned prescribing equipment within one day of the accident, but the patient's overall condition was unclear, requiring factual resolution of medical necessity. The court expressly left undecided whether Education Law § 6551 could independently defeat no-fault recovery.
Trial court, Second Department
Dec 12, 2003
2003 NY Slip Op 23915
Insurer prevailed
The provider's default application was denied because service outside Nassau County did not confer personal jurisdiction. The District Court, Nassau County, denied relief under CPLR 3215 and dismissed the action without prejudice. The provider served the insurer in Suffolk County while sending later notices to two Nassau County offices. Under UDCA § 403 and § 404 (d), service outside the county was unauthorized where personal delivery could be made within Nassau County. Neither the complaint nor the moving papers established a basis for long-arm service under UDCA § 404. The action could be renewed upon authorized service.
