Appellate Division, Second Department
Feb 22, 2005
2005 NY Slip Op 01332
Insurer prevailed
The insurer established a reasonable excuse for its default and a meritorious defense of exhausted no-fault benefits. An inexperienced claims adjuster reasonably believed that advising the provider's counsel by telephone and letter that benefits were exhausted would end the action. The letter enclosed the denial and requested withdrawal of the summonses. The Appellate Division, Second Department, reversed the denial of vacatur, vacated the default judgment, and remitted for further proceedings with additional time to answer. The reasonable excuse, exhaustion defense, brief delay, and absence of prejudice warranted relief, consistent with the policy favoring resolution on the merits.
Appellate Division, Second Department
Feb 22, 2005
2005 NY Slip Op 01329
Split result
The insurer raised factual issues about exhaustion of policy limits and compliance with payment-priority requirements on the first claim. Although the provider established submission of the required documents and the insurer's failure to pay or deny, an insurer need not pay after policy limits are exhausted. Questions remained whether other no-fault payments exhausted coverage and complied with 11 NYCRR 65.15 (n). The Appellate Division, Second Department, modified the order to grant another provider summary judgment on the third cause of action, its own claim, and otherwise affirmed the order, insofar as appealed from. Denial of summary judgment on the first cause of action remained in place. A separate provider's appeal was dismissed because it was not aggrieved.
Appellate Division, First Department
Feb 1, 2005
2005 NY Slip Op 00505
Provider prevailed
An insurer must timely respond to a provider's first assigned claim despite an earlier blanket denial sent to the insured. The insurer denied further orthopedic benefits based on an IME but did not respond within 30 days to the provider's subsequent claim for orthopedic services. It later rejected the portion covering treatment after the cutoff. Under Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), the earlier denial to the insured did not excuse that failure or permit silent reliance on the cutoff. The Appellate Division, First Department, affirmed the Appellate Term's order granting the provider summary judgment because the untimely response precluded the medical-necessity defense.
Appellate Term, Second Department
Feb 18, 2005
2005 NY Slip Op 50210(U)
Insurer prevailed
The provider's service at another insurance company's office failed to obtain jurisdiction over the defendant insurer. The provider sought a default judgment after serving the summons and complaint at an office used by Kemper Casualty Insurance Company. The insurer asserted that the office was unaffiliated with it and cross-moved to serve a late answer. There was no showing that Kemper was the same legal entity as the insurer. Consequently, the insurer did not need to demonstrate a meritorious defense to defeat the default motion. The Appellate Term, Second Department, affirmed denial of the provider's motion and permission to answer late, because the insurer requested that relief rather than dismissal.
Appellate Term, Second Department
Feb 17, 2005
2005 NY Slip Op 50189(U)
Provider prevailed
The insurer's conclusory submissions failed to raise a triable issue of staged-accident fraud. The provider established submission of its claim and overdue payment under Insurance Law § 5106 (a). The insurer failed to pay or deny within 30 days or demonstrate a toll, precluding defenses other than those surviving untimeliness. Its coverage defense remained available, but required a fact or founded belief that the injuries did not arise from an insured incident. Counsel's affirmation lacked personal knowledge and contained unsubstantiated hearsay; the claims representative merely asserted that a file review revealed staging. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment.
Appellate Term, Second Department
Feb 17, 2005
2005 NY Slip Op 50188(U)
Provider prevailed
The insurer's unsworn investigator's report did not supply admissible evidence supporting its staged-accident defense. The provider established submission of a claim stating the fact and amount of loss and overdue payment under Insurance Law § 5106 (a). Failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3) precluded defenses subject to that deadline, while the insurance-fraud coverage defense remained available. The insurer nevertheless failed to support that defense with admissible proof and offered no excuse for the unsworn report. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for statutory interest and attorney's fees.
Appellate Term, Second Department
Feb 17, 2005
2005 NY Slip Op 50454(U)
Insurer prevailed
The insurer's investigator affidavit raised a triable coverage issue based on suspected collision fraud despite an untimely denial. The provider established its prima facie entitlement to summary judgment under Insurance Law § 5106 (a) by proving submission of a claim stating the fact and amount of loss and overdue payment. Failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3) precluded other defenses, but did not bar the defense that the collision furthered an insurance fraud scheme. The investigator's affidavit established a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion.
Appellate Term, Second Department
Feb 17, 2005
2005 NY Slip Op 51053(U)
Provider prevailed
The insurer's unsworn peer review report was inadmissible and failed to rebut the provider's prima facie entitlement to payment. The provider established its claim for medical supplies by proving submission of a claim stating the fact and amount of the loss and that payment was overdue under Insurance Law § 5106 (a). Although the insurer timely denied the claim, it still needed admissible evidence opposing summary judgment. Its unsworn report did not meet that requirement. The Appellate Term, Second Department, reversed the order denying the provider's motion, granted summary judgment, and remanded for calculation of statutory interest and assessment of attorney fees.
Appellate Term, First Department
Feb 7, 2005
2005 NY Slip Op 50134(U)
Split result
The insurer's verification requests presented triable issues as to compliance with the required timetable and procedures. The Appellate Term, First Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed, leaving intact denial of the insurer's CPLR 3211 (a) (7) motion to dismiss. The record did not resolve whether initial and follow-up requests complied with 11 NYCRR 65.15 (d) (1) and (e) (2). Following Presbyterian Hosp. v Aetna Cas. & Sur. Co., the court explained that an ultimate finding of untimely verification requests would allow the 30-day payment-or-denial period to run even before verification was obtained, rather than merely shorten it.
Appellate Term, Second Department
Feb 2, 2005
2005 NY Slip Op 50114(U)
Provider prevailed
An insurer cannot defeat summary judgment with a peer review citing insufficient information without showing it sought verification. The insurer timely denied the provider's claims based on a peer review that attributed its medical-necessity conclusion to insufficient information. That deficiency alone did not raise a triable issue without proof of requests under the verification procedures in former 11 NYCRR 65.15 (d) and (e), now 11 NYCRR 65-3.5 (b) and 65-3.6 (b). The Appellate Term, Second Department, reversed the order, granted the provider's summary judgment motion, and remanded for calculation of statutory interest and assessment of attorney fees. The insurer was precluded from asserting lack of medical necessity.
Appellate Term, Second Department
Feb 2, 2005
2005 NY Slip Op 50110(U)
Split result
An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity. Following Stephen Fogel Psychological, PC v Progressive Cas. Ins. Co., the Appellate Term, Second Department, modified the order to award the provider partial summary judgment on three untimely denied claims under Insurance Law § 5106 (a), and otherwise affirmed. The late denials precluded the IME and reimbursement-limit defenses to those claims. For the remaining claims, nonappearance defeated the provider's motion because it supplied no reasonable excuse, showing that the requests were unreasonable, or independent proof of medical necessity. The insurer's cross motion remained denied. The matter was remanded for interest, attorney fees, and further proceedings; a dissent would have dismissed the remaining claims.
Appellate Term, Second Department
Feb 2, 2005
2005 NY Slip Op 50103(U)
Insurer prevailed
The providers failed to establish overdue payment because their proof did not identify when the claims sued upon were submitted. The Appellate Term, Second Department, affirmed the denial of their summary judgment motion. Their billing manager stated that claim forms and medical reports had been submitted but gave no submission dates for the fifteen annexed claims. The insurer's acknowledgment letters did not identify the particular claims received. Under Insurance Law § 5106 and former 11 NYCRR 65.15 (g) (1), now 11 NYCRR 65-3.8 (a) (1), benefits become overdue 30 calendar days after receipt of proof of claim, including requested verification. Without evidence connecting receipt dates to the claims at issue, the providers failed to make a prima facie showing.
Appellate Term, Second Department
Feb 2, 2005
2005 NY Slip Op 50115(U)
Provider prevailed
The moving providers established entitlement to summary judgment on the papers identified in the order as the sole papers considered. The Appellate Term, Second Department, reversed the denial of summary judgment and granted the motion. Under CPLR 2219 (a), review was limited to the moving papers because the order recited no opposition papers. The providers established submission of claim forms stating the fact and amount of loss and overdue payment under Insurance Law § 5106 (a), with no material factual issue shown. The transportation provider's appeal was dismissed under CPLR 5511 because it had withdrawn from the motion and was not aggrieved. The insurer could seek relief below if it had served and filed opposition papers; other issues were not reached.
Appellate Term, Second Department
Feb 1, 2005
2005 NY Slip Op 50088(U)
Provider prevailed
MVAIC's 30-day period to pay or deny begins upon receipt of proof of claim, rather than after it qualifies an eligible insured. The providers established claim submission and overdue payment. MVAIC's denial of receipt did not rebut the presumption arising from one provider's proof of proper mailing. Under 11 NYCRR 65.15 (g) (3), failure to pay or deny timely precluded the defenses of late claim submission against that provider and lack of medical necessity against the other. The unsworn peer review report also was inadmissible. The Appellate Term, Second Department, reversed, granted both providers summary judgment, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Trial court, Second Department
Feb 28, 2005
2005 NY Slip Op 25090
Provider prevailed
The insurer failed to prove that EMG/NCV testing was medically unnecessary because its peer review lacked an adequate rationale. After a trial limited by stipulation to medical necessity under Insurance Law § 5102 (a) (1), the Civil Court, Kings County, directed judgment for the provider on the unpaid diagnostic-testing claims. The insurer bore the burdens of production and persuasion. Its peer reviewer deemed testing three weeks after the accident premature but cited no medical authority or accepted practice, had not examined the patient, and did not explain the positive findings of nerve damage. The provider's expert rebutted that opinion with authoritative guidelines supporting the timing of the tests.
Trial court, Second Department
Feb 23, 2005
2005 NY Slip Op 25176
Provider prevailed
⚠ Reversed by West Tremont Med. Diagnostic, P.C. v Geico Ins. Co. (2006 NY Slip Op 51871(U))
⚠ Not followed by Precision Diagnostic Imaging, P.C. v Travelers Ins. Co. (2005 NY Slip Op 25180)
The insurer failed to prove lack of medical necessity where its expert confirmed that the diagnostic center did not decide which tests to order. The Civil Court, Richmond County, awarded the provider judgment after trial for MRIs performed on a treating physician's referral. Although the expert considered the MRIs unnecessary, the testimony established that diagnostic centers customarily perform prescribed tests without independently examining patients or assessing necessity. Applying Insurance Law § 5106 and the prompt-payment principles of 11 NYCRR 65-3.2, the court found the defense unavailable on these facts. It stated that a proven nexus imputing the referring physician's knowledge to the center could yield a different result. Judgment included statutory interest and attorney's fees.
Trial court, Second Department
Feb 22, 2005
2005 NY Slip Op 50201(U)
Provider prevailed
A provider's cashing of partial-payment checks does not establish accord and satisfaction without clear notice that acceptance settles the claim. The Civil Court, Kings County, granted the provider's cross motion for summary judgment and denied as moot the insurer's motion to dismiss for discovery noncompliance. Neither the checks nor accompanying denials expressly offered settlement of outstanding disputes, so the insurer failed to establish accord and satisfaction. The provider proved submission of statutory claim forms and overdue payment. The insurer waived objections to claim-form adequacy by failing to object within 10 days under 11 NYCRR 65.15 (d), and regulations did not require authentication of the assignors' signatures. Judgment included interest and attorney's fees under Insurance Law § 5106 (a).
Trial court, Second Department
Feb 18, 2005
2005 NY Slip Op 50287(U)
Insurer prevailed
A party need not record a deposition default to enforce stipulated preclusion when its opponent announces and admits nonappearance. The provider failed to attend a deposition required by a so-ordered stipulation specifying full evidentiary preclusion as the sanction. Its counsel had advised the insurer's counsel beforehand that no witness would appear, and the provider did not dispute its noncompliance. Following Hoss Medical Services v Government Employees Insurance Co., the Civil Court, Queens County, enforced the agreed sanction rather than allowing another opportunity to comply. It granted the insurer's motion, precluded all of the provider's evidence, and dismissed the complaint.
Trial court, Second Department
Feb 17, 2005
2005 NY Slip Op 25063
Provider prevailed
An insurer moving to compel no-fault discovery must supply its denial or verification demand, absent a compelling reason for omission. The Civil Court, Queens County, denied the insurers' motions in all six actions to compel disclosure, preclude evidence, or strike complaints, although the providers neither opposed the motions nor sought protective orders. The insurers omitted NF-10 denials under 11 NYCRR 65-3.8 and timely verification demands under 11 NYCRR 65-3.5, preventing review of the demands against preserved defenses. The court also found palpably improper requests, misuse of bills of particulars to seek evidence, and duplicative interrogatory and deposition demands. Providers' defaults did not entitle insurers to enforcement of oppressive discovery.
Trial court, Second Department
Feb 17, 2005
2005 NY Slip Op 50327(U)
Split result
A denial based on a pending investigation does not preserve defenses outside the regulatory verification procedures. The Civil Court, Kings County, found three claims paid and excluded them from the summary judgment motion. Untimely or defective denials waived defenses to unpaid claims under Insurance Law § 5106 (a) and 11 NYCRR 65.15, including provider fraud and assignment defects. Health Department orders raised a factual issue about whether a suspended principal performed services underlying two assignors' claims, defeating summary judgment on that issue. The court left corporate standing unresolved and extended discovery 45 days, limited to provider and principal licensing and who performed those services. It stated that the provider would be entitled to summary judgment on unpaid claims if standing were established.
Trial court, Second Department
Feb 10, 2005
2005 NY Slip Op 50150(U)
Provider prevailed
The insurer's delay notices did not request verification, and its proof failed to establish mailing or fraud in the provider's claim. The provider sought summary judgment for unpaid psychological services. The Civil Court, Kings County, granted the motion with statutory interest and attorney fees. Under 11 NYCRR 65-3.3 and 11 NYCRR 65-3.8, the notices did not toll the 30-day payment-or-denial period because they merely announced a delay pending IME results without asking the provider to verify the claim. The insurer also supplied no affidavit establishing actual mailing or its mailing procedures. Although a lack-of-coverage defense could survive an untimely denial, the insurer's fraud evidence concerned other assignors and claims and did not substantiate fraud in this claim.
Trial court, Second Department
Feb 10, 2005
2005 NY Slip Op 50326(U)
Provider prevailed
The insurer's unsworn EUO report and hearsay submissions failed to support a founded belief that the injuries arose outside an insured accident. The provider established claim submission and nonpayment under Insurance Law § 5106 (a). The insurer offered no competent proof that verification requests or its denial were timely mailed under 11 NYCRR 65.15 (g) (3), precluding nonfraud defenses. Although the denial adequately identified fraud, the insurer's unsworn report, employee affidavit, and counsel affirmation did not supply admissible evidence satisfying Central General Hosp. v Chubb Group of Ins. Cos. The Civil Court, Kings County, granted the provider summary judgment, denied the insurer's partial summary judgment motion, and denied its discovery motion as moot.
Trial court, Second Department
Feb 9, 2005
2005 NY Slip Op 50273(U)
Provider prevailed
The insurer's unaffirmed and unsworn peer review report was inadmissible and did not defeat the provider's summary judgment motion. The insurer denied payment for two MRIs based on a peer review concluding that physical examination and monitoring could adequately evaluate the injuries. Although a medical-necessity defense requires a sufficient factual foundation and medical rationale, the report also had to be sworn or affirmed to oppose summary judgment. Contrary to counsel's representation, it was neither. The Civil Court, Kings County, granted the provider's motion in full because the insurer offered no other basis for opposition, and awarded statutory interest and attorney's fees.
Trial court, Second Department
Feb 9, 2005
2005 NY Slip Op 50329(U)
Provider prevailed
The provider obtained summary judgment because two denials were late and the third relied on an unavailable IME nonappearance defense. For the first claim, the insurer denied payment more than 30 days after receiving requested verification; scheduling IMEs afterward did not extend its time under 11 NYCRR 65.15 (c) (3). For the second, the insurer failed to prove mailing of a verification request, so the 30-day period was not extended. The third denial was timely but relied on missed IMEs scheduled before receipt of that claim. Following Urban Medical Diagnostics v Liberty Mutual Insurance Co. and Millenium Medical Diagnostics v Liberty Mutual Insurance Co., the Civil Court, Kings County, granted the provider summary judgment on all three claims with statutory interest and attorney's fees.
Trial court, Second Department
Feb 8, 2005
2005 NY Slip Op 50127(U)
Insurer prevailed
A professional corporation lacking authorization to practice acupuncture cannot recover no-fault benefits for acupuncture services. The Civil Court, Kings County, affirmed the arbitrator's and master arbitrator's awards denying the provider's claim for lack of standing. A licensed acupuncturist performed the treatments, but the corporation's physician owner was neither licensed nor certified in acupuncture, and the provider offered no proof that its license encompassed those services. Applying Business Corporation Law § 1503 and 11 NYCRR 65-3.16 (a) (12), the court treated proper licensing as a condition precedent to reimbursement. The provider's petition did not address the licensing issue raised sua sponte in arbitration. The court found it unnecessary to address the grounds for vacating arbitration awards.
Trial court, First Department
Feb 4, 2005
2005 NY Slip Op 50636(U)
Insurer prevailed
The supplier lacked standing because its assignor neither received the supplies nor incurred an obligation to pay for them. The supplier furnished electrodes to a treating medical facility and sought no-fault benefits through the patient's purported assignment. The assignment was unauthenticated and omitted the assignee and relevant dates. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.11 (b) (2), the supplier had to establish a loss and an effective assignment. The Civil Court, New York County, denied the supplier's summary judgment motion and granted the insurer's unopposed cross motion dismissing the action, holding that the late disclaimer could not create coverage for expenses incurred between the supplier and facility. It did not reach whether the facility itself was an uncovered injured party.
