No-Fault Decisions, July 2006

Appellate Term, First Department Jul 27, 2006 2006 NY Slip Op 51470(U) Provider prevailed

Cosmopolitan Med. Acupuncture Servs., P.C. v Allstate Ins. Co.

The insurer's independent-contractor defense presented factual issues about the treating acupuncturists' employment status. In nine actions consolidated for appeal, the Appellate Term, First Department, modified the orders granting the insurer summary judgment to deny its cross motions and affirmed the orders already denying that relief. Employment status generally depends on the purported employer's control over both the results of the work and the means used to achieve them. The providers' letter did not resolve that inquiry. Reporting annual compensation on IRS 1099 forms could be significant, but under Bynog v Cipriani Group it was only one factor in assessing the relationship.

Appellate Term, Second Department Jul 26, 2006 2006 NY Slip Op 26319 Insurer prevailed

Metroscan Imaging, P.C. v GEICO Ins. Co.

A fraudulently incorporated medical provider cannot recover unpaid no-fault benefits even for services predating the licensing regulation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining the insurer's position. Reading Mallela, the court held that 11 NYCRR 65-3.16 (a) (12) codified the common-law bar against compensation for services requiring a license obtained through fraudulent means. Licensed practitioners' treatment did not establish the billing corporation's eligibility under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c). The court distinguished unpaid claims from recoupment: an insurer could not recover payments made before the regulation took effect, but could pursue fraud or unjust-enrichment claims for payments made afterward.

Appellate Term, Second Department Jul 26, 2006 2006 NY Slip Op 26360 Insurer prevailed

Midborough Acupuncture P.C. v State Farm Ins. Co.

An insurer's fraudulent-incorporation defense survives an untimely denial, and discovery into provider ownership and licensing is material. Although the provider established its prima facie case and the insurer failed to prove timely denial or verification tolling, eligibility under Mallela remained contested. Under 11 NYCRR 65-3.16 (a) (12), Education Law § 8212 and Business Corporation Law §§ 1503 (b) and 1507, licensing information bore on reimbursement eligibility. The Appellate Term, Second Department, reversed, denied the provider summary judgment as premature under CPLR 3212 (f), and granted the insurer's dismissal cross motion only to compel material discovery under CPLR 3101 within 30 days of the resulting order or another reasonable period stipulated in writing; a separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 26, 2006 2006 NY Slip Op 26318 Split result

A.B. Med. Servs. PLLC v Peerless Ins. Co.

A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials. The insurer's medical-necessity peer review omitted reports supplied by the medical provider; its IME defense lacked follow-up proof under 11 NYCRR 65-3.6 (b), and its remaining denial was incomplete under 11 NYCRR 65-3.4 (c) (11). The Appellate Term, Second Department, modified the order to grant the medical provider summary judgment and the chiropractic provider partial summary judgment on one claim, remanding for interest, fees and remaining proceedings. The chiropractor's other three claims lacked mailing proof because receipts named the medical provider. The acupuncture provider's appeal was dismissed under CPLR 5511 as unaggrieved; a partial dissent would have required proof of properly executed assignments.

Appellate Term, Second Department Jul 26, 2006 2006 NY Slip Op 51556(U) Insurer prevailed

Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co.

The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt. The Appellate Term, Second Department, affirmed the denial of the provider's cross motion for summary judgment, with leave to renew after discovery. Under Insurance Law § 5106 (a), the provider had to establish submission and overdue payment. Its officer's affidavit and attachments did not prove mailing, its attorney lacked personal knowledge, and the denial form omitted the claim-receipt information. The appeal from the discovery directive was dismissed under CPLR 5511 because the provider had defaulted by failing to oppose that relief. A separate concurrence agreed only with the result and disputed propositions in cited authorities.

Appellate Term, Second Department Jul 26, 2006 2006 NY Slip Op 51557(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v GEICO Ins. Co.

The insurer's timely denials and reasoned peer reviews raised triable issues of medical necessity. Although the motion court found the provider's prima facie showing deficient, its supporting affidavit permitted consideration of the attached claim forms, mailing receipts, denials acknowledging receipt, and other documents. Those submissions established entitlement under Insurance Law § 5106 (a), shifting the burden to the insurer. The claims examiner's affidavit established timely denial mailing through routine office practices, and the affirmed peer reviews supplied factual bases and medical rationales for their conclusions. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion because the insurer's evidence raised triable issues.

Appellate Term, Second Department Jul 19, 2006 2006 NY Slip Op 51599(U) Provider prevailed

Accessible & Advance Med. P.C. v Allstate Ins. Co.

The insurer's timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review. Denial forms cured the provider's deficient mailing proof under Insurance Law § 5106 (a). The denials and explanations of benefits merely referred to a peer review to be sent separately. Without evidence it was sent within 30 days, the majority found the medical necessity defense precluded. Searching the record, the Appellate Term, Second Department, modified the order, insofar as appealed from, granted judgment on both claims, and remanded for interest and attorney's fees. A separate concurrence agreed only with the result, citing 11 NYCRR 65-3.8 (b) (4) as requiring release of the report upon written request.

Appellate Term, Second Department Jul 18, 2006 2006 NY Slip Op 51434(U) Insurer prevailed

Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer raised a triable coverage issue through the provider's affidavit attributing the injuries to multiple motor vehicle accidents. The Appellate Term, Second Department, reversed the order granting the plaintiffs summary judgment and denied their motion. The insurer's acknowledgment of claim receipt supplied missing submission proof for the prima facie showing under Insurance Law § 5106 (a). It failed, however, to establish timely verification requests tolling the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8. Although most defenses were precluded, a defense that the injuries were unrelated to the insured accident survived. The provider principal's affidavit supported a founded belief that the injuries did not arise from an insured incident.

Appellate Term, Second Department Jul 18, 2006 2006 NY Slip Op 51439(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co.

The insurer raised a triable issue of medical necessity through detailed peer reviews and timely denials following verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion upon reargument. Contrary to the lower court's reasoning, the provider's affidavit permitted consideration of the claim forms, and the insurer's acknowledgment of receipt in its denial forms cured deficient proof of submission. The insurer nevertheless demonstrated timely verification requests and requisite follow-up requests under 11 NYCRR 65-3.5 (b), followed by timely denials after verification was received. The peer reviews supported the medical-necessity defense. A separate concurrence agreed only with the result while expressing disagreement with propositions in cited authorities.

Appellate Term, Second Department Jul 18, 2006 2006 NY Slip Op 51437(U) Insurer prevailed

Fair Price Med. Supply Corp. v ELRAC Inc.

The defendants raised triable issues concerning partial payment and a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. A denial form acknowledging receipt cured inadequate mailing proof and established a prima facie case under Insurance Law § 5106 (a). Documentary evidence raised a partial-payment issue, and evidence of an alleged fraudulent scheme in the accident's occurrence raised a coverage defense surviving preclusion. Under CPLR 5511, the court dismissed the appeal from the discovery portion because the provider had not submitted written opposition to the cross motion and that portion was entered on default. A separate concurrence agreed with the result while disputing propositions in cited cases.

Appellate Term, Second Department Jul 18, 2006 2006 NY Slip Op 51438(U) Provider prevailed

Fair Price Med. Supply Corp. v Liberty Mut. Ins. Co.

The insurer failed to prove timely mailing of its denial and was precluded from asserting its excessive-charge defense. The Appellate Term, Second Department, reversed the order denying the provider summary judgment, granted the motion, and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). The denial form's acknowledgment of claim receipt cured deficient proof of submission. Although the form showed receipt of verification and bore a subsequent denial date, the insurer supplied neither an affidavit based on personal knowledge of mailing nor a sufficiently detailed office-mailing procedure. It therefore raised no factual issue concerning payment or denial within the 30-day period under 11 NYCRR 65-3.8 (c). A separate concurrence agreed only with the result and disputed propositions in cited authorities.

Appellate Term, Second Department Jul 17, 2006 2006 NY Slip Op 51428(U) Provider prevailed

SZ Med. P.C. v Clarendon Natl. Ins. Co.

The insurer's timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense. The Appellate Term, Second Department, reversed the denial of the provider's summary judgment motion, granted the motion, and remanded for statutory interest and attorney fees under Insurance Law § 5106. The provider established its prima facie case. The denial merely referred to a peer review finding treatment unnecessary, and no evidence showed that the report was sent within the 30-day claim-determination period. A separate concurrence agreed only with the result and disputed the majority's requirement, reasoning that 11 NYCRR 65-3.8 (b) (4) requires release of a peer review report only upon written request.

Appellate Term, Second Department Jul 17, 2006 2006 NY Slip Op 51426(U) Split result

A.M. Med. Servs., P.C. v Allstate Ins. Co.

The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue. The Appellate Term, Second Department, modified the order to grant partial summary judgment for unpaid portions of four claims, leaving the claim denied for exhaustion unresolved. The denial forms cured deficient submission proof but supplied no factual basis or medical rationale; no evidence showed delivery of the promised peer review within 30 days. The matter was remanded for interest and attorney fees under Insurance Law § 5106 and further proceedings. The discovery appeal was dismissed under CPLR 5511 because the provider defaulted in opposing discovery. A separate concurrence disputed requiring delivery of the report absent a written request under 11 NYCRR 65-3.8 (b) (4).

Appellate Term, Second Department Jul 17, 2006 2006 NY Slip Op 51427(U) Split result

Benson Med., P.C. v Progressive Northeastern Ins. Co.

An untimely denial precludes fee-schedule defenses even when the insurer characterizes billing-code disputes as coverage issues. The Appellate Term, Second Department, modified the order to reduce the provider's partial summary judgment award. The first set of claims remained payable because the untimely denial precluded fee-schedule defenses. Timely denials on the second and third sets were sufficiently specific except for codes EX022, EX028, and X322, which asserted inadequate documentation of medical necessity. Those denials lacked a particularized factual basis and medical rationale; further documentation should have been sought through verification. Summary judgment remained granted for those items but was denied for the portions supported by effective denials. A separate concurrence agreed only with the result and disputed propositions in cited authorities.

Appellate Term, Second Department Jul 17, 2006 2006 NY Slip Op 51430(U) Insurer prevailed

Doshi Diagnostic Imaging Servs. v Progressive Ins. Co.

The provider's failure to sign the assignment form left verification outstanding and tolled the time to pay or deny the claim. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint for the insurer and denial of the provider's cross motion. The insurer timely requested verification and followed up under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). The provider responded with an NF-AOB form but left the provider-signature section blank, contrary to 11 NYCRR 65-3.11 (b) (2) (iii). After objecting, the insurer requested a signed assignment, which remained unprovided. Payment therefore was not overdue, and the provider's remaining challenges to the form's validity lacked merit.

Appellate Term, Second Department Jul 17, 2006 2006 NY Slip Op 51432(U) Split result

PDG Psychological P.C. v Progressive Cas. Ins. Co.

The provider obtained summary judgment on one claim because the insurer failed to prove timely denial; two claims lacked submission proof. The Appellate Term, Second Department, modified the order to grant partial summary judgment on the claim whose receipt the insurer acknowledged in its denial form. The claims representative's affidavit established neither actual mailing nor a sufficiently detailed office procedure, precluding the medical-necessity defense under 11 NYCRR 65-3.8 (c). For the other two claims, the provider's officer established neither actual mailing nor an office procedure, and certified mail receipts were not linked to those claims. The matter was remanded for interest and attorney fees under Insurance Law § 5106 (a) and proceedings on the remaining claims. A separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 14, 2006 2006 NY Slip Op 51425(U) Split result

A.M. Med. Servs., P.C. v Nationwide Mut. Ins. Co.

The insurer's EUO transcripts supported a founded belief of fraud, raising a coverage issue that defeated both summary judgment motions. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the provider's motion. Under the regulations preceding April 5, 2002, EUO requests did not toll the 30-day period under 11 NYCRR 65-3.8 (c). The fraud defense survived the late denial. Suspicious accident histories and claim withdrawals supported a factual coverage dispute, although an assignor cannot unilaterally revoke an assignment after services under 11 NYCRR 65-3.11 (d). The court directed a hearing under 22 NYCRR 130-1.1 (c) on whether provider counsel's continued pursuit of summary judgment warranted sanctions.

Appellate Term, First Department Jul 14, 2006 2006 NY Slip Op 51374(U) Provider prevailed

West Tremont Med. Diagnostic, P.C. v Allstate Ins. Co.

The insurer failed to establish that the policy contained an endorsement authorizing EUOs. The provider proved submission of a claim stating the fact and amount of the loss and overdue payment under Insurance Law § 5106 (a). Although the claim was submitted after the revised regulations took effect, 11 NYCRR 65-1.1 (d) applied only upon issuance of a new or renewal policy containing the revised endorsement. The policy's cooperation requirement did not independently authorize an EUO because conditions in the liability portion could not qualify statutory no-fault protection. The Appellate Term, First Department, affirmed summary judgment for the provider.

Appellate Term, Second Department Jul 14, 2006 2006 NY Slip Op 51424(U) Insurer prevailed

Ocean Diagnostic Imaging P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer's investigator established a founded belief of fraud sufficient to raise a triable issue of coverage despite a late denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment. The insurer missed the 30-day period under 11 NYCRR 65-3.8 (c), but the alleged fraudulent-collision defense survived preclusion. The affidavit described five accidents involving the same vehicle within seven months, an ownership transfer to an adverse driver from a prior accident, and denials of acquaintance between the participants. Those facts and additional affidavit details raised a coverage issue. The court directed a hearing under 22 NYCRR 130-1.1 (c) concerning provider counsel's continued prosecution of the appeal.

Appellate Term, Second Department Jul 12, 2006 2006 NY Slip Op 51412(U) Insurer prevailed

Amaze Med. Supply Inc. v Allstate Ins. Co.

The insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for medical supplies. The provider established submission and overdue payment under Insurance Law § 5106 (a), but the insurer timely denied the claims based on the peer review. Under the facts presented, the reviewer's references to unavailable reports and notes did not imply that the available information was inadequate or that further verification was required before determining medical necessity. A separate concurrence agreed only with the result and expressed disagreement with propositions in cited authorities.

Appellate Term, Second Department Jul 12, 2006 2006 NY Slip Op 51415(U) Provider prevailed

A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co.

A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale. The Appellate Term, Second Department, reversed and granted the provider summary judgment, remanding for interest and attorney fees under Insurance Law § 5106 (a). Purported verification letters on three claims were insufficient to toll the denial period, rendering those denials late; one claim had been partially paid. Two other denials were timely but factually insufficient. The insurer's affirmed peer review raised a medical-necessity issue but could not cure them. Failure to supply the report within 30 days did not itself preclude the defense because 11 NYCRR 65-3.8 (b) (4) provides no sanction for that omission. A separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 12, 2006 2006 NY Slip Op 51418(U) Insurer prevailed

Fair Price Med. Supply Corp. v ELRAC Inc.

The provider's willful noncompliance with unappealed discovery orders warranted an amended response and denial of a protective order. The Appellate Term, Second Department, affirmed the order granting the defendants relief under CPLR 3126. An earlier order denied the provider summary judgment and required discovery responses within 45 days. After the provider failed to comply, it received an additional month, but its eventual response still objected to two demands despite expiration of the objection period. Following Kihl v Pfeffer, the court held that the provider was obligated to supply the discovery because it had not appealed the original order. Its continued noncompliance had necessitated two additional enforcement motions.

Appellate Term, Second Department Jul 12, 2006 2006 NY Slip Op 51417(U) Insurer prevailed

Fair Price Med. Supply Corp. v ELRAC Inc.

The provider lacked submission proof for one claim, while the defendants' founded belief of noncovered injuries defeated judgment on the other. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. A denial form cured deficient submission proof and established overdue payment for one claim under Insurance Law § 5106 (a); no proof or admission established submission of the other. Despite an untimely denial, the defendants raised a triable coverage issue based on an alleged fraudulent scheme in the accident's occurrence. The court dismissed the appeal from the discovery order under CPLR 5511 because the provider had not opposed the cross motion and that portion was entered on default. A separate concurrence agreed only with the result and disputed propositions in cited cases.

Appellate Term, Second Department Jul 7, 2006 2006 NY Slip Op 51354(U) Provider prevailed

Bronxborough Med., P.C. v New Hampshire Ins. Co.

The insurer failed to raise a triable issue on IME nonappearance because it did not establish mailing of the scheduling requests. The provider established its claim and overdue payment under Insurance Law § 5106 (a), with the insurer's denial form confirming receipt. Objections to the assignment and NF-3 form were waived by failure to seek timely verification. The insurer's conclusory allegations lacked personal knowledge and described no office mailing practice. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's cross motion for summary judgment, and remanded for statutory interest and attorney's fees. A separate concurrence agreed only with the result and disagreed with certain propositions in cited cases.

Appellate Term, Second Department Jul 6, 2006 2006 NY Slip Op 51351(U) Provider prevailed

Psychology & Massage Therapy Assoc., PLLC v Progressive Cas. Ins. Co.

The insurer's conclusory assertion that the assignor did not reside with the insured failed to raise a coverage issue. The provider established claim submission and overdue payment under Insurance Law § 5106 (a). Although the untimely denial did not preclude a lack-of-coverage defense, the insurer offered no competent evidence that the assignor was ineligible under the household-residency provisions of 11 NYCRR 65-1.1 (d) and (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the provider partial summary judgment on the ninth cause of action and denying the insurer's cross motion on that claim. A partial dissent would have denied the provider's motion because its own documents listed an address different from the insured's.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 26269 Insurer prevailed

Fair Price Med. Supply Corp. v ELRAC Inc.

An improper self-referral defense survives a late denial when a health care provider seeks benefits through an entity in which it has an interest. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and an order compelling discovery. Although the provider established its prima facie case, defendants showed a founded belief that the injuries did not arise from an insured incident. Defendants also sought discovery concerning prohibited self-referrals under Public Health Law § 238-d (1) and 10 NYCRR part 34. The majority held that this defense was not precluded by an untimely denial. The discovery was neither privileged under CPLR 3101 nor palpably improper, and no timely objection appeared. A separate concurrence disputed propositions concerning the provider's prima facie case.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51286(U) Provider prevailed

M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co.

⚠ Not followed by A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)

The insurer failed to prove mailing of its EUO transcript request, leaving its denials untimely and fraudulent-claim defenses precluded. The Appellate Term, Second Department, affirmed provider summary judgment. Denial forms cured deficient claim-submission proof. Under 11 NYCRR 65-3.8 (c), 65-3.5 (b) and 65-3.6 (b), the insurer failed to establish tolling; the court left open whether a properly mailed transcript-signature request would toll time. The nonwaivable independent-contractor defense lacked admissible support. Assignment authentication was not a cognizable defect, and assignment objections were also waived by failure to seek verification or include them in denials. A separate concurrence agreed only with the result and disputed preclusion for billing allegedly unperformed services.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51288(U) Insurer prevailed

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co.

A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor. Of three NF-3 forms supporting the provider's motion, one identified an independent contractor as the treating provider and two left the relevant portion blank. Under 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services performed by an independent contractor rather than the entity or its employees. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion because its submissions raised factual issues. It reached no other issues, and a separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51290(U) Provider prevailed

Ocean Diagnostic Imaging P.C. v General Assur. Co.

The insurer's postappeal renewal motion failed because its IME mailing affidavits were not new evidence and it had not exercised due diligence. The Appellate Term, Second Department, affirmed denial of renewal of the insurer's opposition to the provider's summary judgment motion. A prior appeal granted the provider summary judgment because the insurer had not proved mailing of pre-claim IME requests. Vendor affidavits submitted with the appellate brief were outside the record. On renewal, those affidavits merely supplied competent support for facts previously asserted. Although a trial court may entertain renewal after an appellate decision, the insurer failed to explain why it could not present the affidavits earlier and instead awaited the appeal's outcome.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51287(U) Insurer prevailed

Hempstead Turnpike Open Mri & Imaging v Progressive Ins. Co.

The insurer's affirmed peer review raised a triable issue whether a CAT scan was medically necessary after an MRI of the same area. The reviewer relied on examination and test reports and explained that the available documentation did not establish the scan's necessity. That analysis supplied a factual basis and medical rationale sufficient to defeat the provider's cross motion for summary judgment. Merely referring to unavailable reports did not require an inference that the reviewer lacked enough information to assess necessity or needed further verification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's cross motion.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51289(U)

Psychological Practice, P.C. v Kemper Auto & Home Ins. Co.

The insurer's mailed denial and attached peer review raised a triable issue of medical necessity requiring denial of both summary judgment motions. The provider established claim submission and overdue payment under Insurance Law § 5106 (a). The insurer proved actual mailing of its denial through an affidavit based on personal knowledge and established that the peer review report was attached. The report supplied sufficient facts and a medical rationale supporting lack of medical necessity, requiring a trial on that issue. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed denial of the insurer's cross motion. A separate concurrence agreed only with the result.

Appellate Term, Second Department Jul 3, 2006 2006 NY Slip Op 51297(U)

State Farm Mut. Auto. Ins. Co. v Crete Carrier Corp.

The subrogated insurer established the truck driver's sole fault, but factual issues concerning a release prevented liability summary judgment. Seeking recovery of excess no-fault benefits, the insurer submitted its insured's affidavit that the truck backed into a legally stopped vehicle. That proof satisfied its initial burden on negligence under Vehicle and Traffic Law § 1121 (a). The opposing parties submitted no driver affidavit and raised no factual issue on fault. The Appellate Term, Second Department, modified the order under CPLR 3212 (g) to establish the driver's sole culpability for all purposes in the action. It otherwise affirmed because unresolved issues concerning the insured's release in favor of the defendants barred summary judgment on liability.

Trial court, Second Department Jul 19, 2006 2006 NY Slip Op 51446(U) Insurer prevailed

Globe Surgical Supply v GEICO Ins. Co.

⚠ Modified by Globe Surgical Supply v GEICO Ins. Co. (2008 NY Slip Op 10583)

The provider failed to establish four prerequisites for class certification of claims challenging reduced equipment reimbursements. The Supreme Court, Nassau County, denied certification under CPLR 901 and 902, while extending the motion deadline and deeming the motion timely. The provider established typicality but supplied no evidence of class size, and individualized proof of assignments, billing, equipment costs, denial timeliness, and damages defeated predominance. Repeated use of invoices and missing proof of the specific purchase and payment undermined adequacy. The provider did not show superiority over individual litigation or arbitration, with interest and attorney fees available under Insurance Law § 5106 (a) and (b). All five CPLR 902 considerations weighed against certification, including existing proceedings and the difficulty of managing separate claim adjudications.

Trial court, Second Department Jul 14, 2006 2006 NY Slip Op 51398(U) Insurer prevailed

PDG Psychological, P.C. v State Farm Ins. Co.

⚠ Not followed by Seaside Med., P.C. v General Assur. Co. (2007 NY Slip Op 27258)

A notice to admit cannot establish a provider's prima facie case by admitting the contents of bills and an assignment. The Civil Court, Kings County, granted the insurer's reserved directed-verdict motion after a defense jury verdict because the provider failed to prove its prima facie case. The prior summary judgment denial established no such finding, and motion exhibits required an evidentiary foundation at trial. Although initially admitted through an inadequate response to a notice to admit, the documents concerned material issues requiring proof. The court also explained that the provider retained the burden of persuasion on coverage by a preponderance of the evidence, but found the insurer's staged-accident proof inadmissible or insufficient to rebut the coverage presumption.

Trial court, Second Department Jul 13, 2006 2006 NY Slip Op 51397(U) Insurer prevailed

Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co.

A provider must prove a properly executed assignment at trial to recover assigned no-fault benefits. The Civil Court, Kings County, directed judgment for the insurer and dismissed the complaint after a bench trial because no assignment evidence was introduced. The billing witness identified bills and correspondence but was never asked about an assignment. Under 11 NYCRR 65-3.11 (b) (2) (i), complete absence of assignment proof differed from technical defects that may be waived by an untimely or insufficient denial. The insurer's initial dismissal motion based on provider eligibility under 11 NYCRR 65-3.11 (a) failed because it offered no competent proof of independent-contractor status and did not establish that it sought verification of the challenged claim-form information.

Trial court, Second Department Jul 12, 2006 2006 NY Slip Op 51368(U) Provider prevailed

Bronx Radiology, P.C. v Liberty Mut. Ins. Co.

The insurer's motion to vacate an unopposed summary judgment order and resulting default judgment was denied as untimely. The insurer had appeared and obtained two adjournments to oppose the provider's motion, but submitted no opposition after a third adjournment was denied. It sought vacatur under CPLR 5015 (a) (1) nearly a year later. The District Court, Nassau County, applied Achampong v Weigelt and concluded that the insurer's remedy was an appeal, renewal or reargument within the applicable 30-day period under CPLR 5513. The provider's judgment remained intact, and the court did not reach whether the assignor's IME nonappearances barred recovery for services rendered before the first scheduled IME.

Trial court, Second Department Jul 3, 2006 2006 NY Slip Op 51349(U) Insurer prevailed

Marigliano v State Farm Mut. Auto Ins. Co.

A provider must introduce its NF-3 claim forms or their functional equivalent at trial to establish exactly what the insurer received. Neither party called a witness, and the provider relied solely on an unanswered notice to admit. The Civil Court, Richmond County, found the notice proper under CPLR 3123 (a) and deemed its factual requests admitted after the insurer failed to respond within 20 days. Nevertheless, admissions of receipt and nonpayment did not establish the provider's prima facie case without the claim forms or their equivalent in evidence. The provider also had not attached the forms to the notice and sought admissions of genuineness. The court directed judgment for the insurer dismissing the action.