Appellate Division, Third Department
Feb 23, 2006
2006 NY Slip Op 01352
Provider prevailed
A claimant who defaults in opposing a CPLR 3126 motion may seek vacatur under CPLR 5015 (a) (1) rather than appeal the dismissal. The Appellate Division, Third Department, affirmed an order vacating dismissal of the claimant's no-fault action and denying the insurer's discovery-based dismissal motion upon consideration of the merits. The insurer's sole appellate argument was that failure to appeal the dismissal foreclosed vacatur. Although appeal is the sole remedy from an order on a properly contested CPLR 3126 motion, this claimant sought relief from the default in opposing the motion itself. The trial court therefore properly entertained vacatur after finding a reasonable excuse and a potentially meritorious claim.
Appellate Term, Second Department
Feb 28, 2006
2006 NY Slip Op 50858(U)
Insurer prevailed
The defendants' founded belief that the injuries did not arise from an insured incident raised a coverage issue despite an untimely denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. A denial form in the defendants' opposition cured the provider's deficient proof of claim submission. Letters merely stating that the claim was under investigation did not constitute verification requests or toll the 30-day determination period. Although untimeliness precluded other defenses, the alleged fraudulent scheme in the accident's occurrence survived preclusion. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the defendants' submissions raised a triable issue of lack of coverage.
Appellate Term, Second Department
Feb 28, 2006
2006 NY Slip Op 50293(U)
Insurer prevailed
The providers failed to establish submission of the claim forms because their affidavit did not prove proper mailing. In this action for no-fault benefits, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment on the first cause of action. Under Insurance Law § 5106 (a), the providers had to prove claim submission and overdue payment. Their principal's affidavit described no standard office mailing procedure and did not establish personal knowledge of actual mailing; assertions of timely submission and mailing on specified dates were insufficient. The insurer timely served its notice of appeal within the applicable 35-day period, and the court excused its late filing under CPLR 5520 (a).
Appellate Term, Second Department
Feb 28, 2006
2006 NY Slip Op 50861(U)
Insurer prevailed
The provider failed to prove submission of two claims, and the defendants raised a triable coverage issue as to the alleged accident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on all four medical-supply claims. Denial forms established submission and overdue payment for two claims under Insurance Law § 5106 (a), and untimely denials precluded other defenses. For the remaining claims, an officer's statement that mailing proofs were in the officer's possession and an attorney's affirmation lacking personal knowledge did not establish submission. The defendants also demonstrated a founded belief that the injuries did not arise from an insured incident, raising a coverage defense that survived preclusion.
Appellate Term, Second Department
Feb 28, 2006
2006 NY Slip Op 50860(U)
Insurer prevailed
The defendants' founded belief that the injuries did not arise from an insured incident defeated summary judgment despite defective claim handling. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion on two medical-supply claims. Denial forms cured deficient proof of submission. For one claim, investigation letters were not verification requests and did not toll the 30-day determination period, resulting in preclusion of other defenses. For the other, the defendants failed to prove mailing of verification requests for examinations before trial and thus raised no issue concerning noncompliance. Nevertheless, the alleged fraudulent scheme in the accident's occurrence raised a triable coverage issue under Central Gen. Hosp. v Chubb Group of Ins. Cos., a defense surviving preclusion.
Appellate Term, Second Department
Feb 28, 2006
2006 NY Slip Op 50859(U)
Insurer prevailed
The defendants' submissions raised a triable coverage issue based on a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion for summary judgment on its medical-supply claim. A denial form attached to the defendants' opposition cured the provider's deficient proof of claim submission. The defendants' unsworn medical reports were insufficient to establish lack of medical necessity or rebut the provider's prima facie showing. Nevertheless, their evidence of an alleged fraudulent scheme in the accident's occurrence raised a coverage issue under Central Gen. Hosp. v Chubb Group of Ins. Cos., requiring denial of summary judgment.
Appellate Term, Second Department
Feb 27, 2006
2006 NY Slip Op 50306(U)
Insurer prevailed
The provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit. The Appellate Term, Second Department, affirmed denial of summary judgment with leave to renew on proper papers. Establishing a prima facie claim under Insurance Law § 5106 (a) required appending admissible claim forms. Counsel lacked personal knowledge, and the provider's affidavit made no specific reference to the forms. The court also agreed that a nurse's peer review may establish admissible medical opinions if the reviewer's training, observations and actual experience sufficiently demonstrate competence to render them. No other issue was reached.
Appellate Term, Second Department
Feb 27, 2006
2006 NY Slip Op 50307(U)
Insurer prevailed
The insurer's proof of pre-claim IME nonattendance raised a factual issue as to the medical necessity of the supplies. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. The provider established its prima facie entitlement under Insurance Law § 5106 (a) by proving submission of claims stating the losses and overdue payment. In opposition, the insurer's no-fault supervisor described standard office procedures ensuring that IME requests were properly addressed and mailed to the assignor and the assignor's attorney. The majority found that this evidence rebutted the presumption of medical necessity attached to the claim forms. A separate concurrence agreed with the result but disputed propositions in the authorities cited by the majority.
Appellate Term, Second Department
Feb 27, 2006
2006 NY Slip Op 50304(U)
Insurer prevailed
The provider's summary judgment motion was denied because the insurer's investigator affidavit raised a triable coverage issue. The Appellate Term, Second Department, modified the order to deny that motion, left the insurer's cross motion denied, and found a founded belief that the injuries did not arise from an insured incident under GPM Chiropractic. A partial dissent would have granted the insurer summary judgment for deficient assignment and billing proof.
Appellate Term, Second Department
Feb 17, 2006
2006 NY Slip Op 26068
Insurer prevailed
A defense of fraudulent corporate licensure is not precluded by an insurer's failure to timely deny no-fault claims. The Appellate Term, Second Department, reversed the providers' judgment, denied partial summary judgment under CPLR 3212 (f), and granted the insurer's discovery cross motion in part. Although mailing proof failed under 11 NYCRR 65-3.8 (c), discovery concerning corporate structure and licensing remained proper under Mallela and 11 NYCRR 65-3.16 (a) (12) and Business Corporation Law § 1507; demands concerning precluded defenses were improper. The providers' failure to object required disclosure under CPLR 3120 and 3122. The court ordered a hearing on counsel's signatures under 22 NYCRR 130-1.1a, with disclosure required if the complaint survived. A separate concurrence agreed with the disposition but disagreed with certain propositions in cited cases.
Appellate Term, Second Department
Feb 14, 2006
2006 NY Slip Op 50246(U)
Provider prevailed
A provider may rely on denial forms annexed to an insurer's motion to establish the insurer's receipt of the claims. The provider established claim submission, the losses sustained, and overdue payment, satisfying its prima facie burden under Insurance Law § 5106 (a). The insurer failed to prove that it mailed its denials within the 30-day period prescribed by that statute and 11 NYCRR 65-3.8 (c), and was precluded from raising its defenses. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the provider's cross motion for summary judgment.
Appellate Term, Second Department
Feb 14, 2006
2006 NY Slip Op 50243(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for its default or a meritorious defense to the providers' claims. It acknowledged service and asserted that pleadings sent by courier to outside counsel were not received, but supplied no affidavit from anyone with personal knowledge of the circumstances. Its asserted defenses rested solely on conclusory statements in denial forms, without a knowledgeable affidavit, documentary proof of EUO requests, or proof of their mailing. Despite the policy favoring resolution on the merits, the Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion, leaving the default judgment in place.
Appellate Term, Second Department
Feb 14, 2006
2006 NY Slip Op 50245(U)
Split result
The insurer failed to support its EUO defense but raised a triable issue of whether other claims arose from an insured incident. For one assignor's claims, it did not establish that the policy's no-fault endorsement authorized EUOs; a liability-policy EUO provision was distinct. It also failed to follow the follow-up verification procedures under 11 NYCRR 65-3.5 (b), rendering the nonattendance denials ineffective. For the other assignor's claims, its submissions sufficiently supported allegations that the injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed the judgment, vacated the order, and granted the provider summary judgment only on the EUO-denied claims, remanding for statutory interest and attorney fees under Insurance Law § 5106 (a) and further proceedings on the remaining claims.
Appellate Term, Second Department
Feb 6, 2006
2006 NY Slip Op 50148(U)
Provider prevailed
The insurer's medical-necessity defense was precluded by a defective first denial and an untimely second denial. The Appellate Term, Second Department, affirmed summary judgment for the acupuncture provider. The first denial omitted required information and failed to state the factual basis and medical rationale for the IME conclusion; neither party's submitted copy included the report purportedly attached. The second denial was issued more than 30 days after receipt of the claims and was untimely under Insurance Law § 5106 (a). Verification demands made before receipt of the claims did not toll the determination period. The court did not review the provider's prima facie showing because the insurer did not challenge it, and it did not reach the insurer's remaining contentions.
Appellate Term, Second Department
Feb 6, 2006
2006 NY Slip Op 51332(U)
The provider's deficient mailing proof and ambiguous postal documentation left claim submission unresolved, defeating both summary judgment motions. Counsel lacked personal knowledge of mailing, and the corporate officer merely stated that the file contained original mailing proofs. The officer neither asserted personal mailing nor described an office practice ensuring proper addressing and mailing. The provider therefore failed to establish its prima facie case. The same ambiguous postal documentation created a factual issue preventing summary judgment for the insurer. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed the denial of the provider's motion.
Appellate Term, Second Department
Feb 3, 2006
2006 NY Slip Op 50139(U)
Split result
A claimant must comply with MVAIC's statutory notice requirements to qualify for no-fault benefits. The Appellate Term, Second Department, modified the order to deny MVAIC summary judgment on the medical providers' claims for one assignor because timely, properly completed notice was disputed. It affirmed denial of the providers' motion and dismissal of their claims for two other assignors who failed to file notices within 180 days of the accident or obtain leave to file late. Under Insurance Law § 5208 (a) (1) and (3) and § 5221 (b) (2), untimely denials did not preclude the coverage defense. The transportation provider's claims remained dismissed because those benefits were nonassignable under 11 NYCRR 65-3.11 (a) and Insurance Law § 5102 (a) (1).
Appellate Term, Second Department
Feb 3, 2006
2006 NY Slip Op 50143(U)
Provider prevailed
The insurer failed to prove timely mailing of verification requests and therefore failed to establish a toll of the claim determination period. The provider established submission of its statutory claim form and overdue payment under Insurance Law § 5106. The insurer supplied neither an affidavit based on personal knowledge of mailing nor an adequate description of standard mailing procedures. Without proof of tolling the 30-day period under former 11 NYCRR 65.15 (d), now 11 NYCRR 65-3.8, the insurer was precluded from asserting its defenses, including deficiencies in the assignment. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's cross motion for summary judgment and dismissal.
Appellate Term, Second Department
Feb 3, 2006
2006 NY Slip Op 50140(U)
Provider prevailed
The insurer's EUO request did not toll one claim, and its opposition failed to rebut medical necessity on the other. For a claim received in July, the October EUO request was untimely under 11 NYCRR 65-3.5 (b); failure to send a follow-up also abandoned verification under 11 NYCRR 65-3.6 (b). For the MRI claim, the provider submitted a sworn medical report establishing necessity that the insurer's opposition did not address. Assignment defenses were waived because the insurer neither sought verification nor raised deficiencies in its denials. The Appellate Term, Second Department, reversed, granted the provider summary judgment on both claims, and remanded for interest and attorney fees under Insurance Law § 5106 (a); a separate concurrence agreed only with the result.
Appellate Term, First Department
Feb 3, 2006
2006 NY Slip Op 50125(U)
The responding insurer waived its objection to arbitrability of a no-fault subrogation claim by failing to seek a stay before arbitration. In opposing confirmation, it contended that the claim was not arbitrable under Insurance Law § 5105 (a). Following Matter of Liberty Mut. Ins. Co., the Appellate Term, First Department, found that objection waived. The insurer's submission also did not conclusively establish that the U-Haul vehicle failed to meet the statutory weight requirements. The court affirmed the judgment granting the petitioning insurer's application to confirm the arbitration award.
Appellate Term, Second Department
Feb 2, 2006
2006 NY Slip Op 50137(U)
Provider prevailed
The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity. The provider established submission of its claim and overdue payment under Insurance Law § 5106. In opposition, the insurer supplied no documentary proof or affidavit based on personal knowledge that the denial was sent, and no affidavit describing standard procedures sufficient to create a mailing presumption. It neither established denial within 30 days of claim receipt nor effectively extended that period. The Appellate Term, Second Department, affirmed the order granting the provider's motion for summary judgment.
Appellate Term, First Department
Feb 1, 2006
2006 NY Slip Op 50116(U)
Insurer prevailed
The provider and assignor failed to give written accident notice within 90 days or show circumstances beyond their control excusing delay. The provider sought no-fault benefits, and the insurer moved for summary judgment without opposition. The Civil Court denied the motion based on an unspecified triable issue of fact. Because the record established neither timely written notice nor proof excusing noncompliance, the Appellate Term, First Department, reversed, granted the insurer's motion, and directed judgment dismissing the complaint. It also criticized the unexplained denial of the motion.
Appellate Term, Second Department
Feb 1, 2006
2006 NY Slip Op 50129(U)
Provider prevailed
The insurer's EUO and staged-collision defenses lacked sufficient proof to defeat the provider's summary judgment motion. For the EUO-denied claims, its submissions proved neither actual mailing nor standard mailing procedures for scheduling letters, and no admissible evidence established an EUO endorsement. For the other claims, an untimely denial did not preclude the staged-collision defense, but bare representations of another passenger's EUO testimony were insufficient under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed summary judgment for the provider on both claims; a dissent would have denied the motion, reasoning that a sworn affidavit establishing belief founded on a reasonable investigation sufficed without sworn source materials.
Trial court, Second Department
Feb 27, 2006
2006 NY Slip Op 50260(U)
Provider prevailed
The insurer failed to prove that EMG/NCV testing was inconsistent with generally accepted medical practice. Medical necessity was the sole disputed issue at trial, and the insurer bore the burden of proof. Its expert considered testing unnecessary because a diagnosis existed, the patient was improving, and no diagnostic dilemma appeared. The provider submitted a stipulated letter explaining that testing served to refine the diagnosis, localize injury, and exclude other conditions. On cross-examination, the expert acknowledged those potential uses. Following Citywide Social Work & Psy. Serv. v Travelers Indem. Co., the Civil Court, Kings County, found the expert's opinion insufficient to establish that the tests were medically unnecessary and rendered judgment for the provider.
Trial court, First Department
Feb 8, 2006
2006 NY Slip Op 26049
Provider prevailed
An insurer waives technical defects in an assignment of benefits by failing to object within 10 days after receipt. The provider sought summary judgment for unpaid no-fault benefits. The insurer conceded that it neither paid nor denied the claim within 30 days and did not request additional verification within 15 days, but argued that the assignment omitted the assignee, accident date and execution date. Applying Laufer v Lumberman's Mut. Cas. Co. and Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., the Civil Court, New York County, treated those omissions as technical defects and granted the provider's motion. The decision applied Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) and 65-3.5 (b).
Trial court, Second Department
Feb 8, 2006
2006 NY Slip Op 26040
A bench trial ended in a sua sponte mistrial because the trial judge's reassignment prevented completion and substitution was improper. The Civil Court, Kings County, declared the mistrial in a no-fault action after the provider rested and an unexpected administrative reassignment required the judge to move to criminal court. An additional week did not permit completion. Applying CPLR 4402 and Judiciary Law § 21, the court reasoned that a substitute judge could not decide the nonjury case from testimony the substitute had not heard or evaluate the witnesses' credibility. Further delay of reassignment was unavailable, and an indefinite continuance was impracticable. The court found no alternative in the interests of justice; neither party prevailed.
Trial court, First Department
Feb 5, 2006
2006 NY Slip Op 50257(U)
Disputed proof of timely mailing of a medical-necessity denial defeated both sides' summary judgment motions. The Civil Court, New York County, found that the provider established its prima facie case, but the insurer's claims representative raised a triable issue through an affidavit describing office mailing practices. Following Hospital for Joint Diseases v Nationwide Mutual Ins. Co., the court held that the affidavit defeated the provider's motion but did not establish the insurer's entitlement to judgment because the representative lacked personal knowledge of actual mailing. The insurer's peer review report and accompanying sworn affidavit supplied admissible medical-necessity evidence. The court left the insurer's entitlement to judgment on medical necessity unresolved because denial timeliness remained disputed under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c).
