Appellate Division, Second Department
Dec 27, 2005
2005 NY Slip Op 10114
Split result
A hospital's no-fault claim was dismissed because it was submitted more than 45 days after medical services were rendered. The Appellate Division, Second Department, upheld summary judgment for the insurer on the first cause of action under 11 NYCRR 65-1.1. It modified the order to deny the insurer's cross motion on the second hospital's cause of action and reinstated that claim, while leaving the denial of the hospitals' motion intact. Questions of fact concerning processing of the second claim, whether a workers' compensation carrier should pay it, and its correct amount prevented either side from establishing entitlement to summary judgment on that claim.
Appellate Division, Second Department
Dec 12, 2005
2005 NY Slip Op 09484
Insurer prevailed
An insurer need not pay or deny a no-fault claim until it receives all relevant verification requested. One hospital admitted receiving the initial verification request but did not state whether it responded, entitling the insurer to dismissal under 11 NYCRR 65-3.8 (a) (1) and (b) (3). Another hospital's principal claim had been paid, leaving interest and attorney fees. Although that hospital disputed receipt of the mailed requests, it supplied verification later, defeating its assertion of untimely payment under 11 NYCRR 65-3.8. The Appellate Division, Second Department, affirmed the denial of the hospitals' motion, reversed the denial of the insurer's cross motion, and dismissed the complaint.
Appellate Division, Second Department
Dec 5, 2005
2005 NY Slip Op 09274
An arbitrator's authority under 11 NYCRR 65-4.5 (o) (1) to raise relevant issues independently does not violate procedural due process. Providers challenged the regulation, used with 11 NYCRR 65-4.2 (b) (3) (i), in arbitration under Insurance Law § 5106. Applying Mathews v Eldridge, the Appellate Division, Second Department, found that prompt claim resolution justified arbitrator discretion and that administrative and judicial review adequately mitigated erroneous denials. It affirmed dismissal under CPLR 3211 (a) (7), including dismissal of the as-applied challenge for failure to exhaust administrative remedies, and remitted for entry of a declaration that the regulation does not violate procedural due process.
Appellate Term, Second Department
Dec 30, 2005
2005 NY Slip Op 52201(U)
Insurer prevailed
The providers failed to establish submission of their claims because their affidavits did not adequately prove mailing. Affidavits from the treating practitioners stated that their offices mailed claim forms within five business days, but did not describe procedures ensuring proper addressing and mailing. They also failed to establish responsibility for compliance or actual knowledge of compliance. Without competent proof of submission, the providers failed to establish prima facie entitlement to overdue benefits under Insurance Law § 5106 (a), and the burden never shifted to the insurer. The Appellate Term, Second Department, reversed the order and denied the providers' summary judgment motion; a separate concurrence distinguished the proof needed to obtain summary judgment from that needed to defeat it.
Appellate Term, Second Department
Dec 30, 2005
2005 NY Slip Op 52204(U)
Severance of unrelated no-fault claims was upheld because they shared no insurance contract or connection beyond allegedly late payment. Eleven providers sought attorney fees and interest on 14 claims involving unrelated assignors and accidents. The Appellate Term, Second Department, found no abuse of discretion in the sua sponte severance under CPLR 603. However, the first provider's cause of action remained under the original index number, so its summary judgment motion required determination. The appellate court modified the order to remand that motion and otherwise affirmed; the providers' remaining contentions were academic.
Appellate Term, Second Department
Dec 30, 2005
2005 NY Slip Op 52205(U)
Insurer prevailed
The self-insurer established a lack of causal nexus between the accident and the injuries through an unrebutted bus driver's affidavit. The provider made a prima facie showing of overdue payment for medical supplies under Insurance Law § 5106 (a). Although failure to pay or deny within 30 days under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 (c), precluded most defenses, causal noncoverage remained available under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the self-insurer's cross motion dismissing the complaint. A separate concurrence agreed only with the result and disputed propositions in cited cases.
Appellate Term, Second Department
Dec 30, 2005
2005 NY Slip Op 52200(U)
Insurer prevailed
The insurer's investigator affidavit raised a triable issue whether the alleged injuries arose from a covered accident despite untimely denials. The provider established prima facie entitlement to summary judgment for overdue no-fault benefits under Insurance Law § 5106 (a). The insurer failed to pay or deny within the 30-day period prescribed by 11 NYCRR 65-3.8 (c), precluding most defenses. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., however, the coverage defense remained available. The special 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
Dec 30, 2005
2005 NY Slip Op 52206(U)
Insurer prevailed
The insurer raised a triable coverage issue through a founded belief that the alleged injuries did not arise from an insured incident. The provider established its prima facie entitlement to summary judgment for overdue no-fault benefits under Insurance Law § 5106 (a). Although the insurer's failure to deny within 30 days under 11 NYCRR 65-3.8 (c) precluded most defenses, the lack-of-coverage defense remained available under Central Gen. Hosp. v Chubb Group of Ins. Cos. A claims specialist's affidavit and the assignor's EUO transcript supported that defense. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion; a separate concurrence agreed only with the result.
Appellate Term, Second Department
Dec 15, 2005
2005 NY Slip Op 25545
Provider prevailed
The insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely. The Appellate Term, Second Department, reversed the order, granted the medical-supply provider summary judgment, and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). Both sides submitted the same completed denial form, effectively conceding receipt. Earlier denial forms omitted required information, and the insurer's submissions did not establish mailing of those forms or the IME notices. Under 11 NYCRR 65-3.8 (c), the insurer was precluded from asserting excessive or unnecessary treatment. Its fraud proof was inadmissible; alternatively, the unsworn reports alleged fraudulent billing or excessive treatment, provider-fraud defenses subject to preclusion under Fair Price Med. Supply Corp. v Travelers Indem. Co.
Appellate Term, Second Department
Dec 12, 2005
2005 NY Slip Op 52088(U)
Provider prevailed
A factually specific, unaffirmed peer review report can support a denial for lack of medical necessity but is inadmissible on summary judgment. The provider established prima facie entitlement to overdue no-fault benefits for medical supplies under Insurance Law § 5106 (a). The insurer's timely denials included a factually specific peer review report sufficient to assert lack of medical necessity, but the unaffirmed report could not rebut the provider's showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from by the provider, granted its summary judgment motion and remanded for statutory interest and attorney fees. The insurer's cross appeal was dismissed in accordance with its brief.
Trial court, First Department
Dec 31, 2005
2005 NY Slip Op 52302(U)
Provider prevailed
The out-of-state insurer failed to supply facts establishing that the arbitrator lacked power to award no-fault benefits. The Supreme Court, Bronx County, denied the CPLR 7511 (b) (1) (iii) petition and dismissed the proceeding, leaving the provider's award intact. Arbitral power was distinct from judicial personal jurisdiction. Even if Insurance Law § 5107 did not apply, financial-security compliance, a filed declaration, or an out-of-state policy clause might support benefits and arbitration under Insurance Law §§ 5102 (g) and 5106 (b), Vehicle and Traffic Law §§ 311 (4) (c) and 344 (a), and 11 NYCRR 65.18 (a) (1) and 65-1.8 (c). The record omitted the vehicle's registration, the owner's residence, and the policy, leaving compliance, declarations, and relevant policy terms unresolved.
Trial court, Second Department
Dec 30, 2005
2005 NY Slip Op 52168(U)
Provider prevailed
The insurer failed to raise a triable staged-accident defense or establish tolling of its time to deny the provider's claim. The Civil Court, Kings County, granted the provider summary judgment for no-fault benefits, statutory interest and attorney fees. The insurer did not demonstrate that the policy authorized an EUO or that a timely, proper verification request tolled the 30-day period. Its untimely denial precluded medical-necessity defenses, although a staged-accident defense remained available under Central Gen. Hosp. v Chubb Group of Ins. Cos. The claims adjuster's assertions about aggressive treatment, delayed treatment and a prior accident were insufficient to establish a founded belief of fraud. The insurer offered no proof specific to the accident's circumstances, and counsel's assertions lacked personal knowledge.
Trial court, Second Department
Dec 22, 2005
2005 NY Slip Op 52142(U)
Insurer prevailed
A party that fails to timely seek master arbitration review cannot obtain judicial review of the underlying no-fault arbitration award. The Civil Court, Kings County, dismissed the provider's petition under CPLR 7511. Its request for master arbitration review was mailed beyond the 21-calendar-day period in 11 NYCRR 65-4.10 (d) (2). The master arbitrator properly denied review as untimely, and failure to exhaust that remedy barred judicial review under Insurance Law § 5106 (c). The provider's assertion that it deposited the request for mailing earlier could not be considered because it had not been raised before the master arbitrator. The court found no vacatur ground and declined to address the insurer's remaining arguments.
Trial court, Second Department
Dec 20, 2005
2005 NY Slip Op 52071(U)
Provider prevailed
⚠ Not followed by Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)
⚠ Not followed by Allstate Ins. Co. v Belt Parkway Imaging, P.C. (2006 NY Slip Op 26024)
Mallela's bar on reimbursement to fraudulently organized providers does not apply retroactively to services predating the licensing regulation. The Civil Court, Queens County, denied the insurer's summary judgment motion in an action concerning services rendered before 11 NYCRR 65-3.16 (a) (12) took effect. The court reasoned that the Court of Appeals could have expressly directed retroactivity in Mallela but did not. Retroactive application would subvert providers' expectations of prompt payment for services allegedly furnished under the no-fault system and effectively alienate a property right. The court also expressed concern that retroactivity would prompt litigation seeking to recapture payments already made.
Trial court, Second Department
Dec 19, 2005
2005 NY Slip Op 52069(U)
⚠ Not followed by Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)
⚠ Not followed by Allstate Ins. Co. v Belt Parkway Imaging, P.C. (2006 NY Slip Op 26024)
The insurer failed to establish grounds for dismissal, and the provider failed to prove mailing of its psychological-services claim. The Civil Court, Queens County, denied both summary judgment motions. Although the provider was fraudulently organized, 11 NYCRR 65-3.16 (a) (12) did not apply retroactively to its claim; licensing-defense preclusion was academic. The independent-contractor defense survived untimely denial under former 11 NYCRR 65.15 (j) (1), but the insurer did not establish that an independent contractor treated this assignor. Because no denial was issued, fraudulent-billing and defective-assignment defenses were precluded. The policy's fraud provision could not qualify the mandatory no-fault endorsement. The provider's affidavit failed to describe its mailing procedures or method, defeating its prima facie showing.
Trial court, Second Department
Dec 19, 2005
2005 NY Slip Op 52209(U)
Insurer prevailed
⚠ Not followed by Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)
⚠ Not followed by Allstate Ins. Co. v Belt Parkway Imaging, P.C. (2006 NY Slip Op 26024)
A billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than the provider or its employees. The Civil Court, Queens County, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The provider failed to establish a business-records foundation under CPLR 4518 or mailing of its claims. The insurer's EUO transcript, tax forms and owner's admission established that the treating psychologist was an independent contractor. Under former 11 NYCRR 65.15 (j) (1), that defense was nonwaivable and not subject to preclusion. Although fraudulent incorporation was also established, the court declined to apply 11 NYCRR 65-3.16 (a) (12) retroactively to the services rendered before its effective date and did not address the insurer's remaining grounds.
Trial court, Second Department
Dec 16, 2005
2005 NY Slip Op 52058(U)
Insurer prevailed
The provider failed to establish grounds to vacate an award deferring its no-fault claim pending a workers' compensation determination. The arbitrator denied the medical-supply claim without prejudice pending the Workers' Compensation Board's determination of whether the assignor was injured during employment, and the master arbitrator affirmed. Although the insurer had not timely denied the claim, the arbitrators found the workers' compensation defense unprecluded and sufficient indicia of employment to require Board review. Applying CPLR 7511 and the rationality standard for compulsory arbitration, the Civil Court, Kings County, found no basis to disturb those factual and legal determinations. It dismissed the provider's petition and granted the insurer's dismissal motion to that extent.
Trial court, Second Department
Dec 7, 2005
2005 NY Slip Op 51987(U)
Insurer prevailed
An action against MVAIC for first-party no-fault benefits is subject to the three-year limitations period for statutory liabilities. The provider sued more than five years after the last alleged services, and MVAIC sought dismissal on limitations grounds. The Civil Court, Kings County, applied CPLR 214 (2) because MVAIC's payment obligation arose by statute rather than contract, following Motor Vehicle Accident Indemnification Corporation v Aetna Casualty & Surety Company. It rejected the provider's proposed six-year period under CPLR 213, distinguishing DeLuca v MVAIC because no operative insurance policy existed here. MVAIC's dismissal motion was granted, and the provider's summary judgment motion was deemed moot.
Trial court, Second Department
Dec 1, 2005
2005 NY Slip Op 25512
Provider prevailed
⚠ Not followed by Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)
⚠ Not followed by Allstate Ins. Co. v Belt Parkway Imaging, P.C. (2006 NY Slip Op 26024)
The licensing bar in 11 NYCRR 65-3.16 (a) (12) does not apply retroactively to treatment provided before April 4, 2002. The insurer sought summary judgment based on alleged fraudulent organization, submitting corporate records and EUO testimony that a listed licensed member had never owned or joined the provider. The Civil Court, Queens County, denied the motion because the services preceded the regulation's effective date. Mallela did not resolve its application to unpaid earlier claims, and the regulation contained no language requiring retroactive effect. Excessive-billing and assignment defenses were also unavailable because the insurer failed to show preservation by a timely denial. The motion additionally lacked a complete copy of the pleadings required by CPLR 3212 (b).
