No-Fault Decisions, August 2006

Appellate Term, Second Department Aug 22, 2006 2006 NY Slip Op 51673(U) Insurer prevailed

Booth Chiropractic & Acupuncture PLLC v State Farm Mut. Auto. Ins. Co.

The provider's inconsistent treating-physician affidavits raised a triable issue and defeated its summary judgment motion. The provider sought assigned first-party no-fault benefits, and the insurer cross-moved for summary judgment dismissing the action. The appeal concerned only the denial of the provider's motion. Relying on the inconsistency in the provider's own submissions, the Appellate Term, Second Department, affirmed the order, insofar as appealed from.

Appellate Term, Second Department Aug 18, 2006 2006 NY Slip Op 51672(U) Provider prevailed

Prestige Med. & Surgical Supply, Inc. v Clarendon Natl. Ins. Co.

The insurer's adjuster affidavits failed to establish timely mailing of denials, precluding its defenses. Denial forms and adjuster admissions cured deficiencies in the provider's mailing proof, establishing its prima facie case. The adjusters asserted timely denial without personal knowledge of mailing or facts supporting a mailing presumption under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer acknowledged receiving requested records but failed to prove denial within the renewed 30-day period. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remanded for interest and attorney's fees. The majority left open whether delay letters constituted verification requests; a separate concurrence agreed with the result but considered the letters effective verification requests.

Appellate Term, Second Department Aug 17, 2006 2006 NY Slip Op 26350 Insurer prevailed

Fair Price Med. Supply Corp. v ELRAC Inc.

The provider's appeal from denial of summary judgment and compelled discovery became academic when Civil Court later dismissed the action. The Appellate Term, Second Department, dismissed the appeal in the action for assigned no-fault benefits for medical supplies. The appealed order denied the provider's motion and required its representative to appear for a deposition and produce requested records. Following Livny v Rotella, the court held that the subsequent dismissal rendered the appeal academic and disapproved S&M Supply Inc. v Progressive Ins. Co. to the extent it suggested otherwise.

Appellate Term, First Department Aug 15, 2006 2006 NY Slip Op 26322

Cross Cont. Med., P.C. v Allstate Ins. Co.

A provider cannot challenge the reliability of its own principal's treatment records as the source of an insurer's expert opinion. At trial, the sole defense was lack of medical necessity for computerized range-of-motion and muscle tests. The trial court precluded the insurer's peer review doctor's testimony because the underlying records were not in evidence and directed judgment for the provider. The records were prepared by the provider's principal, who treated the assignor and performed the tests, and the expert used them only to document injuries, diagnosis and treatment. The Appellate Term, First Department, reversed the order and remanded for a new trial.

Appellate Term, First Department Aug 15, 2006 2006 NY Slip Op 51579(U) Provider prevailed

Mid Atl. Med., P.C. v Travelers Indem. Co.

An insurer is precluded from asserting untimely proof of claim unless it timely denies the claim. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment. The provider concededly failed to submit proof within the 45-day period prescribed by 11 NYCRR 65-1.1 (d). However, the claims representative's affidavit neither stated that the representative actually mailed the denial nor described the insurer's office mailing practices and procedures. The insurer therefore failed to establish timely denial and entitlement to judgment on the late-submission defense. Its reply affidavit could not be considered to establish prima facie entitlement to summary judgment.

Appellate Term, Second Department Aug 15, 2006 2006 NY Slip Op 51662(U) Split result

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins.

The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims. Its admission of receipt established the provider's prima facie case under Insurance Law § 5106 (a). A detailed affirmed peer review and sufficient denial-mailing affidavit supported denial of both sides' summary judgment motions on one claim. For the other four, the specialist's affidavit established neither actual mailing nor a mailing presumption for verification requests, so the insurer failed to show tolling of the 30-day determination period and its defenses were precluded. The Appellate Term, Second Department, affirmed partial summary judgment for the provider and denial of the insurer's cross motion; a separate concurrence agreed only with the result.

Appellate Term, Second Department Aug 14, 2006 2006 NY Slip Op 51660(U) Insurer prevailed

IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

The provider failed to prove submission of its claim, and its appeal from an unopposed discovery order was dismissed. The corporate officer's affidavit and postal ledger did not establish mailing, and counsel's affirmation relied on hearsay without personal knowledge. The attached denial acknowledged a claim in a different amount from the attached bill, so it did not cure the submission defect under Insurance Law § 5106 (a). The Appellate Term, Second Department, affirmed denial of summary judgment. Under CPLR 5511, it dismissed the appeal from the direction to appear for examinations before trial because the provider had not opposed that cross motion, rendering that portion entered on default; a separate concurrence agreed only with the result.

Appellate Term, First Department Aug 10, 2006 2006 NY Slip Op 51553(U) Split result

Pueblo Med. Treatment, P.C. v State Farm Mut. Ins. Co.

A provider that elects arbitration waives the right to litigate no-fault claims arising from the same accident. The Appellate Term, First Department, modified the order to grant the insurer summary judgment dismissing the third and fourth causes of action because those claims had been submitted to arbitration before suit. Dismissal of the claims concerning the other two assignors remained denied. The insurer waived its prior-action-pending defense by omitting it from its answer and any pre-answer dismissal motion under CPLR 3211 (e). Its submissions raised factual issues concerning fraudulent licensing and services rendered by an independent contractor but did not establish entitlement to judgment. The insurer obtained specified discovery responses and a deposition relevant to those defenses.

Appellate Term, First Department Aug 2, 2006 2006 NY Slip Op 51515(U) Split result

Statewide Med. Acupuncture, P.C. v Travelers Ins. Co.

The insurer obtained discovery of the treating provider's employment status because it bore on the independent-contractor defense. The Appellate Term, First Department, modified the order to require a complete response to that demand and depositions of the provider's president and treating practitioner. Their testimony was relevant to whether an independent contractor performed the services under 11 NYCRR 65-3.11 (a). The protective order covering the remaining demands was affirmed despite possible untimeliness because those demands were duplicative, burdensome, irrelevant, or concerned defenses not at issue. The insurer also failed to show the good cause required under Mallela for disclosure concerning fraudulent incorporation.

Trial court, Second Department Aug 17, 2006 2006 NY Slip Op 26326 Provider prevailed

Andrew Carothers, M.D., P.C. v GEICO Indem. Co.

⚠ Reversed by Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2008 NY Slip Op 51756(U))

The provider retained standing to sue for no-fault benefits despite pledging its receivables as security for financing. The insurer sought summary judgment dismissing the action on the ground that assignments to financing and collection companies left the provider without a real interest. The Civil Court, Kings County, denied that motion and granted the provider summary judgment on the issue under CPLR 3212 (b) and (e). The agreements created security interests, and the insurer failed to show that the provider had surrendered its substantial interest in the accounts. Collection authority did not establish ownership. Under 11 NYCRR 65-3.11 (a), the financing companies could not obtain direct payment, while UCC 9-608 (a) required payment of surplus collections to the provider.

Trial court, First Department Aug 17, 2006 2006 NY Slip Op 51815(U) Provider prevailed

Allstate Ins. Co. v Merrick

An insurer that participates in arbitration waives its right to seek a judicial stay on statute-of-limitations grounds. The insurer sought a stay after its counsel made an opening statement, cross-examined the claimant, and submitted evidence in the no-fault arbitration. Under CPLR 7503 (b), it had to seek judicial relief before participating. The absence of a demand complying with CPLR 7503 (c) eliminated the strict 20-day deadline but did not preserve a participating party's right to a stay. An informal email to the arbitration administrator suggesting limitations issues did not substitute for a special proceeding. The Supreme Court, New York County, denied the insurer's petition and dismissed the proceeding.

Trial court, Second Department Aug 14, 2006 2006 NY Slip Op 51583(U) Insurer prevailed

Bonsai Med. Acupuncture, P.C. v Motor Veh. Acc. Indem. Corp.

A claimant must timely file the statutory notice of claim to establish entitlement to no-fault benefits from MVAIC. The District Court, Nassau County, granted MVAIC summary judgment dismissing the provider's claim and denied its CPLR 3211 motion as moot. Under Insurance Law § 5208 (a) (1), the required affidavit had to be filed within 180 days; compliance established covered-person status under Insurance Law § 5221 (b) (2). A claims representative's review of the file and MVAIC's standard procedures established that no notice was filed. The provider asserted mailing of a benefits claim but did not address the statutory affidavit requirement. MVAIC's failure to deny timely did not preclude this lack-of-coverage defense.