Appellate Division, Second Department
Jul 12, 2004
2004 NY Slip Op 06025
Provider prevailed
The defendants offered no evidence of a timely denial or of their asserted lack of causal relation between the accident, injury, and treatment. The provider established its prima facie entitlement to summary judgment for no-fault medical payments. The Appellate Division, Second Department, reversed the order denying the provider's motion and granted summary judgment. The defendants' unsupported assertions failed to raise a triable issue of fact in opposition. The parties' remaining contentions were rendered academic.
Appellate Division, Second Department
Jul 12, 2004
2004 NY Slip Op 06024
Provider prevailed
The defendants submitted no evidence supporting their claim that the injury and treatment were unrelated to the motor vehicle accident. The provider established its prima facie entitlement to summary judgment for no-fault medical payments. The Appellate Division, Second Department, reversed the denial of that provider's motion and granted it, while affirming the denial of the defendants' cross motion to dismiss the complaint. The unsupported causation contention neither established a defense as a matter of law nor raised a triable issue. The other provider's appeal was dismissed under CPLR 5511 because it was not aggrieved by the challenged portion of the order. The defendants' remaining arguments were unpreserved because they were first raised on appeal.
Appellate Division, Second Department
Jul 12, 2004
2004 NY Slip Op 06034
Provider prevailed
The order starting the injured claimant's UM claim period upon service of the order with notice of entry was affirmed. The Appellate Division, Second Department, relied on the circumstances of the case and Matter of Allstate Ins. Co. v Giordano without further explanation. It granted leave under CPLR 5701 (c) to appeal the sua sponte directive in the declaratory judgment action.
Appellate Division, Fourth Department
Jul 9, 2004
2004 NY Slip Op 05880
Insurer prevailed
Service of an arbitration demand by Federal Express is jurisdictionally defective under CPLR 7503 (c). The Appellate Division, Fourth Department, reversed denial of the insurer's petition and permanently stayed arbitration of the injured claimant's no-fault claims. The demand had been sent by overnight Federal Express delivery with a signature required. The majority held that this method was not among those permitted by CPLR 7503 (c). Two justices dissented, treating the delivery as equivalent to authorized mail service and favoring a trial on whether prior arbitration participation waived the insurer's limitations defense to the lost-wage claim.
Appellate Division, Third Department
Jul 8, 2004
2004 NY Slip Op 05832
Insurer prevailed
The injured claimant's unexcused nine-year delay barred retroactive judicial approval of a third-party settlement. The Appellate Division, Third Department, reversed and denied the application under Workers' Compensation Law § 29 (5). The claimant settled a work-related automobile action without the workers' compensation carrier's written consent and did not seek judicial approval within three months. Late approval required a delay free from the claimant's fault or neglect, a reasonable settlement, and no carrier prejudice. Despite notice of the consent requirement, benefit suspension, and refusal of retroactive consent, the claimant waited nine years. Even assuming reasonableness and no significant prejudice, the court found the asserted excuse unpersuasive.
Appellate Division, Second Department
Jul 6, 2004
2004 NY Slip Op 05783
Insurer prevailed
The insurer raised factual issues concerning denial of one hospital's late claim and timely verification requests for another's incomplete claim. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and denied summary judgment on both hospital claims. Despite the deficient submissions, each hospital made a prima facie showing that its claim had not been paid or denied within the period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). The insurer's opposition raised factual issues about denial of the untimely claim and timely verification of the incomplete claim under 11 NYCRR 65.12 and 65.15 (d) (1). A timely verification demand tolls payment or denial until the requested verification is supplied.
Appellate Term, Second Department
Jul 21, 2004
2004 NY Slip Op 24284
Insurer prevailed
The provider failed to establish a sum certain for default judgment because its equipment billing used an inapplicable fee schedule. The Appellate Term, Second Department, affirmed denial of the provider's unopposed default judgment motion, with leave to renew upon compliance with CPLR 3215. The billing manager's affidavit relied on Workers' Compensation Law fee schedules, although 11 NYCRR Appendix 17-C, part E (b) (1) capped equipment and supply charges at 150 percent of documented provider cost. That assertion raised an issue about the amount due, defeating proof of a sum certain under CPLR 3215 (a) and sufficient claim facts under CPLR 3215 (f). The court declined to reach possible fraud because the EUO transcript offered at oral argument was outside the record.
Appellate Term, Second Department
Jul 21, 2004
2004 NY Slip Op 50833(U)
Provider prevailed
The insurer failed to defeat partial summary judgment with an inadmissible chiropractor's peer review and late medical-necessity denials. The provider established its prima facie case for medical supplies by submitting a properly completed claim. Although one claim was timely denied, the chiropractor's affirmation was not competent evidence under CPLR 2106. Two other claims were not denied within 30 days of receipt, precluding the medical-necessity defense under Insurance Law § 5106 and 11 NYCRR 65.15 (g) (3). The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider partial summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, Second Department
Jul 8, 2004
2004 NY Slip Op 50779(U)
Insurer prevailed
The providers' billing-manager affidavit failed to establish their prima facie case because it did not identify which provider it covered. Two providers sought summary judgment for assigned no-fault benefits, relying on an affidavit identifying its author as the practice and billing manager of "plaintiff." The affidavit did not state which provider the author served or whether the author acted for both. The court could not assume the scope of that role, so the affidavit did not prove submission of properly completed forms. The Appellate Term, Second Department, affirmed denial of the motion on that ground, rather than the lower court's rationale of denying it without prejudice to renewal after discovery.
Appellate Term, Second Department
Jul 1, 2004
2004 NY Slip Op 50745(U)
Split result
The provider failed to prove timely mailing of the earlier service claim, while the insurer's receipt established timeliness of the later claim. The insurer sought dismissal under the 180-day submission requirement in 11 NYCRR 65.12 (e). Its acknowledged receipt on June 11, 2002, was within 180 days of the December 19, 2001 services, but outside that period for the December 5, 2001 services. The provider's manager merely asserted timely mailing without describing office procedures or a basis for personal knowledge. The Appellate Term, Second Department, modified the order to grant the insurer partial summary judgment dismissing the December 5 claim and affirmed denial of dismissal of the December 19 claim.
Trial court, Second Department
Jul 30, 2004
2004 NY Slip Op 24415
The no-fault arbitration regulations permitting supplemental submissions withstand a facial due process challenge. The Supreme Court, Kings County, granted the regulatory defendants' motion to dismiss the arbitration applicants' declaratory judgment complaint. Read together, 11 NYCRR 65-4.5 (o) (1) and 11 NYCRR 65-4.2 (b) (3) permit arbitrators to raise relevant issues and authorize additional submissions. Because those provisions can be constitutionally applied, the applicants could not establish invalidity in every circumstance. Due process required an opportunity to be heard and submit evidence; master arbitration and judicial review supplied further safeguards under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10. The as-applied challenge also failed because the applicants neither exhausted master arbitration remedies nor challenged any specific application of the regulations.
Trial court, Second Department
Jul 22, 2004
2004 NY Slip Op 50987(U)
Insurer prevailed
A transportation provider's direct-payment authorization did not assign the patient's right to sue for no-fault benefits. The provider sought summary judgment for unpaid transportation charges and submitted invoices, an employee or officer affidavit, and a purported assignment. The Civil Court, Kings County, applied 11 NYCRR 65.15 (j) (1), which permitted assignment to other service providers under the regulations governing the accident. Nevertheless, language merely authorizing direct payment and retaining the patient's personal liability did not transfer the right to sue. The provider also failed to attach the verification forms referenced in its affidavit. Because it failed to establish a prima facie entitlement to judgment, the court denied its motion.
Trial court, First Department
Jul 16, 2004
2004 NY Slip Op 50854(U)
Insurer prevailed
The injured claimant's approximately 30-month delay in giving notice of a potential uninsured motorist claim lacked a reasonable excuse. The Supreme Court, Bronx County, granted the insurers a permanent stay of arbitration. Efforts to identify the fleeing vehicle did not excuse failing to notify the insurers when unsuccessful inquiries already indicated a potential uninsured motorist claim. The one-month disclaimer interval was reasonable under Insurance Law § 3420 (d) because the insurers needed to investigate and locate the older policy, and notice had been sent to the wrong affiliated insurer. The stay application was timely under CPLR 7503 (c) and General Construction Law § 25 (a), since the 20-day deadline fell on Sunday and service occurred the next business day.
