Appellate Division, Second Department
May 17, 2004
2004 NY Slip Op 04013
The rental vehicle's no-fault insurer is the primary source of benefits as against the no-fault insurer of a nondriver renter. After paying benefits to occupants injured in the rented vehicle, the petitioning insurer sought contribution from the renter's insurer in compulsory arbitration. The claims were denied. The Appellate Division, Second Department, affirmed the order denying the petition to vacate and granting the respondent insurer's cross petition to confirm the awards, following Matter of Sea Ins. Co. The petitioning insurer's remaining contention was unpreserved.
Appellate Term, Second Department
May 28, 2004
2004 NY Slip Op 50511(U)
Provider prevailed
The insurer's EUO requests did not toll the 30-day denial period because the applicable regulation did not require EUOs. The provider established its prima facie entitlement to assigned no-fault benefits through proper proof of the claim and amount of loss under Insurance Law § 5106 (a). The insurer acknowledged receipt but denied the claim more than 30 days later, contrary to former 11 NYCRR 65.15 (g) (3), and raised no triable issue. 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's fees.
Appellate Term, Second Department
May 26, 2004
2004 NY Slip Op 24194
Provider prevailed
An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on its claims for medical services. The provider established its prima facie entitlement by submitting complete proof of the claims. Although the insurer's timely denials sufficiently asserted lack of medical necessity, its opposition consisted solely of an attorney affirmation, without a sworn peer review report. It therefore failed to raise a triable issue through admissible evidence. The matter was remanded for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and the implementing regulations.
Appellate Term, Second Department
May 26, 2004
2004 NY Slip Op 50507(U)
Provider prevailed
An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial. The providers established their prima facie entitlement through complete proofs of claim, and the insurer's denials acknowledged receipt and established submission. Although the factually specific medical reports sufficed at the claim stage, the insurer furnished no admissible medical evidence, such as an affirmed report, to raise a triable issue concerning the necessity of the services. The Appellate Term, Second Department, affirmed the judgment entered on the grant of summary judgment to the providers for the claims at issue on appeal.
Appellate Term, Second Department
May 26, 2004
2004 NY Slip Op 24210
Provider prevailed
The insurer's peer review supplied no sufficient factual basis or medical rationale, precluding its medical-necessity defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). The billing manager's affidavit, though imprecisely worded, established the provider's prima facie case under CPLR 4518 (a); personal medical knowledge was unnecessary where properly completed claim forms were submitted. Although the denial was timely, the peer reviewer found no medical necessity because information was insufficient to make that determination. The denial therefore failed to state its reasons fully and explicitly or inform the provider of the insurer's position on the disputed matter.
Appellate Term, Second Department
May 26, 2004
2004 NY Slip Op 50510(U)
Provider prevailed
An EUO request did not toll the insurer's 30-day denial period under the regulations then in effect. The provider established submission of a complete claim that the insurer neither paid nor denied within 30 days under Insurance Law § 5106 (a). A letter advising that EUOs were underway did not extend the deadline because the applicable regulations contained no EUO requirement. The untimely denial precluded the insurer's defenses, and no relevant exception or triable issue was shown. The Appellate Term, Second Department, modified the order by granting the provider summary judgment, affirmed it as modified, and remanded for calculation of statutory interest and attorney's fees.
Appellate Term, Second Department
May 26, 2004
2004 NY Slip Op 50550(U)
Provider prevailed
An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial. The providers established their prima facie entitlement through complete proofs of claim, and the insurer's denials acknowledged receipt and established submission. Although the factually specific medical reports sufficed at the claim stage, the insurer furnished no admissible medical evidence, such as an affirmed report, to raise a triable issue concerning the necessity of the services. The Appellate Term, Second Department, affirmed the judgment entered on the grant of summary judgment to the providers for the claims at issue on appeal.
Appellate Term, Second Department
May 25, 2004
2004 NY Slip Op 50517(U)
Insurer prevailed
The providers failed to establish their prima facie case because the billing manager's affidavit did not identify the provider served. The affidavit described its author as the practice and billing manager of "plaintiff," although multiple providers sought assigned no-fault benefits. Without specifying which provider the affiant served in that capacity, the affidavit did not establish that the providers submitted properly completed claim forms. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying their motion for summary judgment. It also stated that the insurer could not assert an EUO nonappearance defense because the applicable regulation did not require claimants to submit to EUOs.
Appellate Term, Second Department
May 25, 2004
2004 NY Slip Op 50515(U)
Insurer prevailed
The providers failed to establish submission of completed claim forms because their billing affidavit did not identify the provider it covered. Two providers with different business addresses sought summary judgment for unpaid no-fault benefits. Their affiant described the position as practice and billing manager and officer of "plaintiff," without specifying either provider or stating that the affidavit applied to both. The court declined to assume the affiant acted for one particular provider or for both, and found the affidavit insufficient to establish their prima facie entitlement to judgment. The Appellate Term, Second Department, affirmed the order denying the providers' motion.
Appellate Term, Second Department
May 20, 2004
2004 NY Slip Op 50447(U)
Provider prevailed
The provider's signed postal ledger and president's affidavit established mailing, and the insurer failed to raise a triable issue of timely denial. A date-stamped ledger naming the insurer and the president's statement that the bills were mailed established the provider's prima facie entitlement under Insurance Law § 5106 (a). The insurer's attorney relied on a denial letter asserting receipt a month after mailing, but lacked personal knowledge of the underlying facts, business records, and mailing practices. The affirmation therefore had no probative value. 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's fees.
Appellate Term, Second Department
May 14, 2004
2004 NY Slip Op 50535(U)
Insurer prevailed
The providers' billing affidavit failed to establish their prima facie case because it did not identify which provider employed the billing manager. Multiple providers sought partial summary judgment for no-fault benefits for services rendered to their assignor. The affiant described the position only as billing manager for "plaintiff," without identifying a particular provider or stating that the affidavit covered all providers. The court declined to assume either relationship and found the affidavit insufficient to establish submission of properly completed claim forms to the insurer. The Appellate Term, Second Department, affirmed the order denying the providers' motion.
Appellate Term, Second Department
May 4, 2004
2004 NY Slip Op 24146
The petitioning insurer timely demanded loss-transfer arbitration within three years of its first no-fault payment. The Appellate Term, Second Department, modified the order to grant vacatur of the award and remanded for arbitration before a different arbitrator. The compulsory reimbursement arbitration arose under Insurance Law § 5105, and the arbitrator had repeatedly dismissed the claim as time-barred despite earlier judicial vacaturs. Applying CPLR 214 (2), the court found the latest dismissal unsupported by the evidence and arbitrary and capricious. Statutorily compelled arbitration receives stricter review than voluntary arbitration, and authority involving common-law subrogation was distinguishable. A separate concurrence criticized repeated disregard of court rulings and stated that the petitioner's request for forum-shopping sanctions was unpreserved.
Trial court, Second Department
May 19, 2004
2004 NY Slip Op 24160
Insurer prevailed
An ambulette company cannot receive assigned no-fault payments under the revised regulation limiting direct payment to health care providers. The District Court, Suffolk County, dismissed the provider's commercial-claims complaint after trial. Under Insurance Law § 5102 (a) (1) and 11 NYCRR 65-4.15 (o) (1) (vi), ambulette transportation was neither an enumerated medical expense nor a licensed professional health service. It could qualify only as other reasonable and necessary expenses, limited to $25 daily under Insurance Law § 5102 (a) (3), but 11 NYCRR 65-3.11 (a) barred direct payment on assignment. The court rejected the insurer's jurisdictional objection: UDCA 1809's prohibition on corporate assignees applied to small claims, while article 18-A permitted this commercial claim.
Trial court, Second Department
May 3, 2004
2004 NY Slip Op 24140
Insurer prevailed
A no-fault provider seeking to avoid a deposition bears the burden of showing that the requested discovery is unnecessary. The Civil Court, Kings County, conditionally granted the insurer's CPLR 3126 dismissal motion unless the provider appeared for a deposition. The insurer had timely denied the equipment claim for lack of medical necessity and sought a deposition after receiving interrogatory responses. Those responses were unverified, failed to identify the responding individual, and omitted medical-necessity information. The provider never sought a protective order under CPLR 3103 and did not establish that the deposition was improper. Because its failure to attend rested on a good-faith legal argument, the court allowed another opportunity to comply, with dismissal available upon a further failure to appear.
