Appellate Division, Second Department
May 23, 2005
2005 NY Slip Op 04234
An interinsurer priority-of-payment award survived vacatur because it had a reasonable basis in the failure to prove another driver's negligence. The petitioning insurer challenged an award assigning it full responsibility for first-party benefits, arguing that physical contact with the pedestrian was an improper sole basis in the priority dispute under Insurance Law § 5105 (b). The Appellate Division, Second Department, affirmed denial of the CPLR article 75 petition. The award could rest on the absence of proof that the other insurer's driver was negligent. Even assuming legal error, a reasonable hypothesis supported the award, which did not contradict settled law and was not subject to vacatur under CPLR 7511 (b) (1).
Appellate Division, Second Department
May 2, 2005
2005 NY Slip Op 03671
Insurer prevailed
A master arbitrator's correction of an alleged substantive legal error must be upheld unless irrational. Under 11 NYCRR 65.19 (a) (4), the master arbitrator could review whether the underlying award was legally incorrect. The determination limiting lost earnings to the claimant's earnings level at the accident, including reasonably projected future earnings, had a rational basis under Insurance Law § 5102 (a) (2) and 11 NYCRR 65.15 (o) (2) (iii). Although the proceeding was ripe under 11 NYCRR 65.19 (i), contrary to the lower court's ruling, the Appellate Division, Second Department, modified the order to confirm the master arbitrator's award and dismiss the proceeding on the merits, and otherwise affirmed the order, insofar as appealed from.
Appellate Term, Second Department
May 23, 2005
2005 NY Slip Op 50785(U)
Provider prevailed
The insurer's attorney affirmation and unsworn reports failed to raise a triable staged-collision issue without an excuse for inadmissibility. The providers separately identified their claims within one cause of action, making dismissal under CPLR 3014 unwarranted absent prejudice. The insurer's late denial under 11 NYCRR 65-3.8 (c) precluded provider-fraud defenses, but not staged-collision coverage objections. The Appellate Term, Second Department, reversed, reinstated the complaint, granted the providers summary judgment, and remanded for interest and attorney fees under Insurance Law § 5106 (a). Citing anti-fraud policy, it stayed judgment entry for 45 days and permitted renewal with proper papers under CPLR 2221. A dissent would have found the insurer's submissions sufficient to raise a factual issue.
Appellate Term, Second Department
May 23, 2005
2005 NY Slip Op 50790(U)
The insurer's affidavits raised a factual issue whether the claimed injuries arose from an insured incident. The provider established overdue claims under Insurance Law § 5106 (a). The insurer waived assignment defenses by neither seeking verification nor identifying assignment deficiencies in its denials. Nevertheless, an untimely denial did not preclude its defense that the collision furthered an insurance fraud scheme. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., affidavits from an investigator and claims representative demonstrated a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed denial of both parties' summary judgment motions because factual issues remained. A separate concurrence agreed only with the result and disputed propositions in cited cases.
Appellate Term, Second Department
May 19, 2005
2005 NY Slip Op 50743(U)
Provider prevailed
The insurer failed to prove mailing of IME requests and failed to follow up on unanswered verification requests. The provider established that its claims were overdue under Insurance Law § 5106 (a). The insurer's attorney lacked personal knowledge of mailing, and its claims specialist's affidavit did not address the IME letters. The submissions therefore did not establish proper notice to the assignors. Alternatively, failure to exhaust follow-up verification requirements under 11 NYCRR 65-3.6 (b) and 65-3.5 (d) defeated the IME nonappearance 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. A separate concurrence agreed only with the result and disputed propositions in cited cases.
Appellate Term, Second Department
May 19, 2005
2005 NY Slip Op 50744(U)
Split result
The insurer's investigator affidavit raised a triable coverage issue, but the assignor's EUO nonattendance did not warrant insurer summary judgment. The provider established claim submission and overdue payment under Insurance Law § 5106 (a). The insurer failed to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 (c), but its defense that the injuries did not arise from a covered accident survived preclusion. The investigator supported a founded belief of noncoverage under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, modified the order to deny the provider's motion and affirmed denial of the insurer's cross motion; a separate concurrence agreed only with the result.
Appellate Term, Second Department
May 19, 2005
2005 NY Slip Op 50745(U)
Insurer prevailed
The insurer's motion to vacate a default judgment in the providers' no-fault action was granted and upheld on appeal. The Appellate Term, Second Department, affirmed, concluding that the totality of the circumstances disclosed no improvident exercise of discretion. It cited Braddy v 601 Crown St. Corp. for the discretionary standard governing vacatur without describing the circumstances that justified relief.
Appellate Term, Second Department
May 19, 2005
2005 NY Slip Op 50746(U)
Insurer prevailed
The insurer's motion to vacate a default judgment in the providers' no-fault action was granted and upheld on appeal. The Appellate Term, Second Department, affirmed, finding no improvident exercise of discretion under the totality of the circumstances. It relied on Braddy v 601 Crown St. Corp. for the discretionary standard governing vacatur but did not identify the circumstances supporting relief.
Appellate Term, Second Department
May 19, 2005
2005 NY Slip Op 50747(U)
Insurer prevailed
The insurer's investigator affidavit raised a triable staged-collision coverage issue despite its failure to deny the claim within 30 days. The provider established its prima facie case under Insurance Law § 5106 (a). Although the insurer's late denial under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 (c), precluded other defenses, its coverage defense remained available. The investigator supported a founded belief that the injuries did not arise from an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment. It rejected the insurer's asserted entitlement to summary judgment for EUO nonattendance; a separate concurrence agreed only with the result.
Trial court, Second Department
May 23, 2005
2005 NY Slip Op 25200
Provider prevailed
The provider recovered for a knee MRI prescribed by a chiropractor because the record did not establish lack of medical necessity. The Civil Court, Kings County, entered judgment for the provider after trial, with statutory interest and attorney's fees. The insurer argued that a chiropractor's inability to treat the knee made the prescription automatically unnecessary. Education Law § 6551 did not prohibit using MRIs diagnostically, and the insurer's expert acknowledged that knee problems could produce spinal symptoms. No evidence showed that this MRI was unhelpful to the treating chiropractor. The licensed imaging provider reasonably filled the prescription on these facts, and the court found no authority imposing an investigative duty, while recognizing that an unusual or extraordinary prescription might require inquiry.
Trial court, Second Department
May 13, 2005
2005 NY Slip Op 25183
Provider prevailed
The insurer's motion to compel a treating physician's deposition was denied because the timeliness and basis of denial were not addressed. The District Court, Nassau County, applied CPLR 3101 (a), through UDCA 1101 (a), to limit disclosure to material and necessary matters. An insurer may examine a provider about a timely, specifically asserted medical-necessity defense, but cannot obtain discovery on precluded defenses. Except for pedigree and background information and nonprecludable defenses, deposition inquiry must be confined to defenses specifically stated in the NF-10; affirmative defenses in an answer are insufficient. Neither party addressed whether a timely denial had issued or its grounds. The request to strike the complaint for failure to provide a bill of particulars was moot because sufficient responses had been supplied.
Trial court, First Department
May 12, 2005
2005 NY Slip Op 25180
Insurer prevailed
⚠ Not followed by Long Is. Radiology v Allstate Ins. Co. (2006 NY Slip Op 51090(U))
A radiology provider's reliance on referrals does not exempt its services from the medical-necessity requirement for no-fault reimbursement. The Civil Court, New York County, granted the insurer summary judgment under CPLR 3212 (b). An affirmed peer review explained that spinal MRIs were unnecessary without recommended postpartum x-rays and a follow-up neurological examination to distinguish pregnancy-related symptoms from accident-related symptoms. The provider offered no rebuttal evidence, arguing only that it filled referrals. Applying Insurance Law § 5102 (a) (1) and 11 NYCRR 65-1.1, the court rejected West Tremont Med. Diagnostics, P.C. v GEICO and found no exception for radiology facilities. The insurer's separate independent-contractor standing defense was waived because it was omitted from the denial, but medical necessity had been timely asserted.
Trial court, Second Department
May 9, 2005
2005 NY Slip Op 50725(U)
Provider prevailed
The insurer's CPT-code reductions lacked a sufficiently detailed factual basis and medical rationale to defeat provider summary judgment. The insurer partially paid the claims at lower service codes and denied the balances without peer review or other supporting proof. Following Amaze Medical Supply Inc. v Eagle Insurance Co., the District Court, Nassau County, found those denials ineffectual. The insurer opposed summary judgment solely as untimely under CPLR 3212 because more than 120 days had elapsed after service of the notice of trial. The court granted the provider's unopposed motion to strike that notice, found summary judgment timely, and granted the provider's motion because the insurer supplied no evidence raising a triable issue.
