Appellate Division, Second Department
Mar 29, 2004
2004 NY Slip Op 02359
Provider prevailed
The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue. The Appellate Division, Second Department, affirmed the judgment, insofar as appealed from, awarding no-fault benefits to the hospitals on the first, fourth, fifth, and seventh causes of action. Their evidentiary submissions satisfied the prima facie burden under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The insurer's opposition failed to raise a factual issue as to whether it timely issued a partial denial of one hospital's claim or paid another hospital's claim.
Appellate Division, Second Department
Mar 29, 2004
2004 NY Slip Op 02363
Insurer prevailed
An order denying leave to reargue a provider's summary judgment motion is not appealable. The provider appealed from the denial of a motion concerning its first cause of action for no-fault benefits, contending that it had sought renewal. The Appellate Division, Second Department, dismissed the appeal. The provider had denominated its motion as one for reargument and claimed that Supreme Court overlooked controlling law. It offered neither new facts nor a change in law that would alter the prior determination under CPLR 2221 (e) (2), so the motion was for reargument.
Appellate Division, First Department
Mar 23, 2004
2004 NY Slip Op 02132
Provider prevailed
The insurer's petition to stay underinsured motorist arbitration was untimely under CPLR 7503 (c) and lacked merit on late notice. The Appellate Division, First Department, affirmed the denial of the stay. Although the insurer timely commenced an earlier proceeding in another county, ministerial difficulties transferring it did not excuse commencing this proceeding beyond the 20-day deadline. The claimant immediately reported the accident for no-fault purposes but could not have known that the only personal injury defendant with significant coverage would be absolved of liability. Summary judgment for that defendant therefore marked the start of the obligation to give written notice of the underinsurance claim as soon as practicable.
Appellate Division, Second Department
Mar 15, 2004
2004 NY Slip Op 01750
Split result
The insurer proved policy exhaustion on one hospital claim and absence of coverage on another, requiring dismissal of both. The Appellate Division, Second Department, reversed the judgment and dismissed the first and fifth causes of action for exhausted limits and absence of coverage, respectively; noncoverage remained available despite failure to notify the hospital. It denied hospital summary judgment on the second cause because verification requests raised a factual issue. Hospital summary judgment stood on the third and fourth causes: conclusory hearsay about telephone verification and requests concerning another claim were insufficient. Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) required timely payment or denial, subject to verification tolling. The insurer's improper-joinder argument was unpreserved.
Appellate Division, Second Department
Mar 8, 2004
2004 NY Slip Op 01546
Insurer prevailed
Resubmission of a previously denied no-fault claim does not restart the insurer's 30-day period to deny it. The hospital sued solely on the insurer's failure to pay or deny resubmitted bills within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The insurer established that it had timely denied identical claims previously submitted by the hospital. The Appellate Division, Second Department, affirmed denial of the hospital's summary judgment motion and grant of the insurer's cross motion dismissing the complaint. The hospital could challenge the original denials by suit or arbitration under Insurance Law § 5106 (b); the court did not reach the remaining contentions.
Appellate Term, Second Department
Mar 26, 2004
2004 NY Slip Op 50215(U)
Insurer prevailed
The insurer's peer reviews and the assignor's apparent denial of receiving acupuncture raised factual issues barring partial summary judgment. The provider limited its appeal to benefits for treatment rendered before the IME, conceding factual issues concerning prior diagnostic tests and subsequent tests and treatment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, and remanded for further proceedings. The insurer's timely denials under former 11 NYCRR 65.15 (g) (3) relied on peer reviews supplying a sufficient factual foundation and medical rationale for rejecting certain treatments as unnecessary. For the acupuncture claims, the assignor's apparent denial of receiving treatment, recorded in the medical examination report, separately raised a triable issue whether those claims were appropriate.
Appellate Term, Second Department
Mar 26, 2004
2004 NY Slip Op 50211(U)
Provider prevailed
The provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days. In this action for assigned no-fault benefits for medical supplies, the Appellate Term, Second Department, reversed the order denying the provider's motion and granted summary judgment. Under former 11 NYCRR 65.15 (g) and Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., the insurer was precluded from raising defenses such as lack of medical necessity. The matter was remanded for calculation of statutory interest and attorney fees under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) and 65.17 (b) (6).
Appellate Term, Second Department
Mar 26, 2004
2004 NY Slip Op 50209(U)
Provider prevailed
The insurer's partial, unsworn expert letter failed to support its medical-necessity defense to the provider's summary judgment motion. The provider sought assigned no-fault benefits for medical supplies and established a prima facie case in its moving papers under Amaze Med. Supply Inc. v Eagle Ins. Co. The insurer's submission lacked a factual basis and medical rationale for rejecting the claim. The Appellate Term, Second Department, modified the order to grant the provider summary judgment and remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (h) (1) and 65.17 (b) (6).
Appellate Term, Second Department
Mar 26, 2004
2004 NY Slip Op 50217(U)
Provider prevailed
The insurer's partial, unsworn expert letter failed to support its medical-necessity defense to the provider's summary judgment motion. The provider sought assigned no-fault benefits for medical supplies and established a prima facie case in its moving papers under Amaze Med. Supply Inc. v Eagle Ins. Co. The insurer's submission lacked a factual basis and medical rationale for rejecting the claim. The Appellate Term, Second Department, modified the order to grant the provider summary judgment and remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (h) (1) and 65.17 (b) (6).
Appellate Term, Second Department
Mar 17, 2004
2004 NY Slip Op 50902(U)
Insurer prevailed
The providers' billing affidavit failed to lay a foundation for their claim forms because it did not identify which provider the affiant represented. Three providers sought summary judgment for unpaid no-fault services. The affiant identified being a practice and billing manager and officer of a singular provider, without identifying that entity. The court could not assume authority to act for one or all providers, so the affidavit did not establish submission of complete claims. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Alternatively, the insurer raised a triable fraud issue under the companion appeals decided the same day, Nos. 2003-469, 470, 471 N C.
Appellate Term, Second Department
Mar 17, 2004
2004 NY Slip Op 24181
Insurer prevailed
The insurer's EUO transcripts and investigator's affidavit raised triable fraud issues despite untimely denials. The Appellate Term, Second Department, consolidated three appeals and affirmed the denial of the provider's summary judgment motion. Discrepant accident accounts, identity and address irregularities, and treatment inconsistent with reported injuries or continuing after symptoms abated raised questions of staged-accident or fraudulently provided services. The court distinguished those defenses from a bare medical-necessity defense precluded by late denial under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (d) (1). Independently, two claims belonged to a nonparty provider, while all claims in another action lacked a proper evidentiary foundation because the affiant did not identify which named provider employed the affiant as manager and officer.
Appellate Term, Second Department
Mar 12, 2004
2004 NY Slip Op 50903(U)
Insurer prevailed
The providers' billing affidavit failed to establish submission of completed claim forms because it did not identify the entity represented. Four providers moved for summary judgment for services rendered to their assignor. The affiant described being the practice and billing manager and an officer of a singular provider without specifying which one. The court could not assume that the affiant acted for a particular provider or for all four. The Appellate Term, Second Department, affirmed the denial of the providers' motion because they failed to establish prima facie entitlement to summary judgment.
Appellate Term, Second Department
Mar 4, 2004
2004 NY Slip Op 51041(U)
Provider prevailed
The insurer's EUO request and nonspecific investigation letters did not toll the 30-day period for paying or denying the provider's claim. The provider established submission of a complete claim and overdue payment under Insurance Law § 5106 (a). The applicable regulations did not authorize EUO verification. The insurer's purported verification and follow-up letters also failed to identify the recipient of the requests or the information sought, merely stating that an investigation was underway. They therefore did not constitute proper verification requests under 11 NYCRR 65.15 (e) (2). The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, Second Department
Mar 4, 2004
2004 NY Slip Op 50904(U)
Provider prevailed
The insurer's EUO demands did not toll the 30-day claim period because the applicable regulations imposed no EUO requirement. The provider sought payment for medical supplies furnished in 2001. Under former 11 NYCRR 65.15 (d) (3), an eligible injured person had to submit to medical examinations, but the EUO requirement in 11 NYCRR 65-3.5 (e) did not take effect until April 5, 2002. The assignor therefore had no obligation to attend the requested EUO. Applying Insurance Law § 5106 (a), the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, Second Department
Mar 4, 2004
2004 NY Slip Op 50905(U)
Split result
The insurer's letters announcing delayed bills did not request verification or toll its time to pay or deny the provider's claims. The provider established that certain complete claims submitted in 2001 were not timely paid or denied under Insurance Law § 5106 (a). The court also explained that EUO requests did not toll the period under regulations predating April 5, 2002. The Appellate Term, Second Department, modified the order to grant the provider partial summary judgment and remanded for interest, attorney fees, and proceedings on remaining claims. Summary judgment remained denied for the chiropractic claim lacking proof of claim, the acupuncture claim, and the timely denied portion of the physical therapy claim; the latter two were validly denied for overlapping, excessive, concurrent, or multiple-physician care.
Appellate Term, Second Department
Mar 3, 2004
2004 NY Slip Op 50471(U)
Provider prevailed
A factual affidavit is not rendered defective merely because a nonattorney affiant includes two case citations in a footnote. Although 22 NYCRR 208.11 (b) (1) separates factual affidavits from legal briefs, the provider's affidavit contained facts within the affiant's personal knowledge and warranted consideration on the merits. The provider established a prima facie case. The insurer's attorney lacked personal knowledge of timely mailing of IME requests and supplied no office procedures establishing a mailing presumption. Without proof tolling the 30-day period under Insurance Law § 5106 (a), the insurer's defenses were precluded. The Appellate Term, Second Department, modified the order to grant the provider's summary judgment cross motion and remanded for statutory interest and attorney's fees.
Trial court, Second Department
Mar 29, 2004
2004 NY Slip Op 50203(U)
Provider prevailed
The insurer's late IME-nonappearance denial and unsupported fraud allegations failed to defeat the provider's summary judgment motion. The District Court, Nassau County, granted the provider summary judgment with interest and attorney fees and denied the insurer's discovery-preclusion cross motion as moot. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5 and 65-3.8 (a), timely verification could extend the 30-day payment-or-denial period, but the insurer documented no timely requests. The first IME was scheduled after that period. Unsworn investigators' reports concerning treatment-form signatures supplied no evidentiary support for the asserted staged-accident defense, and the insurer did not explain how alleged treatment fraud established a noncovered accident. Under State Farm v Domotor, repudiating liability also excused further compliance with the insurer's requests.
Trial court, Second Department
Mar 23, 2004
2004 NY Slip Op 50288(U)
Split result
An insurer may recover an index-number fee before judgment when the provider failed to purchase the index number for its action. In three no-fault actions, the insurer purchased index numbers to file answers after the providers failed to do so. The Civil Court, Richmond County, granted reimbursement of the $45 filing fee in each action but dismissed the insurer's sanctions applications; discovery was resolved by stipulation. Relying on CCA 1906, 1908 (a) and 1911 and public policy, the court rejected requiring defendants to subsidize plaintiffs' actions. It also found the commencement-by-service system unconstitutional as applied under the State Constitution's equal protection and due process provisions, while leaving open whether a recurring failure to file summonses constituted a deceptive business practice under General Business Law § 349.
Trial court, Second Department
Mar 16, 2004
2004 NY Slip Op 50141(U)
Insurer prevailed
The provider's trial proof failed to establish an admissible assignment or mailing of its claims, requiring dismissal of the action. The Civil Court, Kings County, dismissed the no-fault action after finding that the provider failed to prove two essential elements of its prima facie case. The office-manager witness neither observed the assignor sign nor knew the signature, and could not date the undated assignment. Under CPLR 4518 (a), the assignment also lacked a business-record foundation because the assignor had no business duty to report. A separate entity prepared and mailed the bills. The witness lacked personal knowledge of that entity's recordkeeping or the claims' mailing and could not establish admissibility of the billing records.
