Appellate Division, Second Department
Dec 19, 2006
2006 NY Slip Op 09604
⚠ Criticized by Boulevard Multispec Med., P.C. v Tri-State Consumer Ins. Co. (2014 NY Slip Op 24080)
An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1. The Appellate Division, Second Department, affirmed the order, insofar as appealed and cross-appealed from, leaving both sides' summary judgment motions denied. The insurer failed to submit admissible evidence from anyone with personal knowledge of mailing the IME notices or the assignor's nonappearances. The provider's cross motion asserted entitlement to charges incurred before the assumed nonappearances. The court rejected that position: IME attendance is a condition precedent to policy liability, regardless of whether the demand precedes or follows submission of claim forms. Neither side obtained summary judgment.
Appellate Division, Third Department
Dec 14, 2006
2006 NY Slip Op 09343
Insurer prevailed
An injured claimant's tort and bad faith claims failed because no duty independent of the insurer's no-fault contract was alleged. The Appellate Division, Third Department, affirmed the order granting the insurer's cross motion to dismiss those causes of action and the punitive damages demands. Construing the complaint liberally under CPLR 3211 (a), the court found that the dispute concerned refusal to continue no-fault payments and sounded in breach of contract. Following New York Univ. v Continental Ins. Co., no independent tort or separate bad faith cause of action lay. Punitive damages also failed because the allegations showed neither an independent tort nor egregious or fraudulent conduct toward the general public.
Appellate Term, Second Department
Dec 28, 2006
2006 NY Slip Op 52520(U)
Insurer prevailed
The provider failed to prove mailing of its claim, while the insurer established that it had never received the claim. The corporate officer's affidavit and supporting documents did not connect the claim to the certified mail receipt number. Counsel's affirmation lacked personal knowledge of mailing and had no probative value. The provider therefore failed to establish prima facie entitlement to summary judgment under Insurance Law § 5106 (a). The insurer's claim representative's affidavit and attached printout established nonreceipt, which the provider did not rebut with proof of mailing. The Appellate Term, Second Department, affirmed denial of the provider's motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 28, 2006
2006 NY Slip Op 52517(U)
Insurer prevailed
A provider's retention of an insurer's late answer without timely objection waives untimeliness and precludes a default judgment. In this assigned no-fault action, the provider offered no proof that it rejected the answer within the period prescribed by CPLR 2101 (f), and applied for a default judgment after that period expired. The Appellate Term, Second Department, modified the order to vacate the judgment without requiring the insurer to demonstrate a meritorious defense, citing CPLR 5015 (a) (3). Because the provider had accepted the answer by waiving its objection, the insurer's request to compel acceptance was academic.
Appellate Term, Second Department
Dec 28, 2006
2006 NY Slip Op 52516(U)
Insurer prevailed
The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue. The corporate officer's affidavit and annexed mailing proof were insufficient to show mailing to the insurer. Counsel's affirmation was unsubstantiated hearsay because it lacked personal knowledge of actual mailing. The delay letter also failed to establish receipt of the particular claim because it omitted the claim amount. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for failure to establish prima facie entitlement to judgment.
Appellate Term, Second Department
Dec 27, 2006
2006 NY Slip Op 52515(U)
Insurer prevailed
The provider failed to prove claim submission because its mailing evidence and the insurer's claim acknowledgments were insufficient. The provider's principal described no standard mailing practice and did not establish personal knowledge of mailing; assertions of timely submission and particular mailing dates were insufficient. Although denials can establish receipt, unexplained discrepancies between these claim forms and denials prevented that conclusion. The insurer's letters also lacked enough detail to identify the claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the plaintiffs' summary judgment motion as to the three assignors' claims under review because their prima facie showing under Insurance Law § 5106 (a) was deficient.
Appellate Term, Second Department
Dec 18, 2006
2006 NY Slip Op 52523(U)
Split result
The provider failed to establish summary judgment entitlement through competent evidence and could not cure its moving papers in reply. Counsel's affirmation lacked a basis of personal knowledge and a business-record foundation under CPLR 4518 for the purported claim form. The insurer's denial established receipt, not admissibility or the truth of the claim's contents. The provider's president's affidavit, although labeled supplemental, was a reply affidavit and could not repair the deficiency under CPLR 3212 (b). The Appellate Term, Second Department, modified the order to deny the provider's motion and deny the insurer's CPLR 3126 discovery cross motion without prejudice to renewal, because the annexed demands concerned a different action.
Appellate Term, Second Department
Dec 15, 2006
2006 NY Slip Op 52502(U)
Provider prevailed
The insurer's peer reviews bearing stamped facsimile signatures were inadmissible under CPLR 2106 on the record presented. The provider established its prima facie case, including claim receipt through the insurer's denials. Although the insurer proved timely mailing under 11 NYCRR 65-3.8 (c), its purportedly affirmed reports raised no triable issue of medical necessity; nothing showed that the doctor personally stamped the signatures. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for interest and attorney fees under Insurance Law § 5106. A dissent would have found the signatures sufficient under General Construction Law § 46 and affirmed.
Appellate Term, Second Department
Dec 15, 2006
2006 NY Slip Op 52504(U)
Neither party established summary judgment entitlement because the provider failed to prove claim mailing and the insurer failed to prove timely denial. The denial attached to the provider's papers did not cure its deficiency because it omitted the claim amount and otherwise failed to identify the claim. The insurer's claims representative supplied neither personal knowledge of actual timely mailing nor a sufficiently detailed standard mailing procedure. The insurer therefore failed to establish mailing within 30 days and that its proposed defense was not precluded. The Appellate Term, Second Department, affirmed denial of both motions; a separate concurrence agreed only with the result and expressed disagreement with propositions in the cited cases.
Appellate Term, Second Department
Dec 13, 2006
2006 NY Slip Op 52493(U)
Provider prevailed
The insurer was precluded from asserting medical necessity because its denials lacked factual grounds and timely delivery of peer reviews was unproved. The NF-10 forms referred to peer review reports available on written request but supplied no factual basis or medical rationale. No evidence showed that the reports reached the provider within the 30-day claim determination period. Although the provider's initial mailing proof was deficient, the insurer's denials established receipt and cured that deficiency in the prima facie showing under Insurance Law § 5106 (a). The Appellate Term, Second Department, affirmed summary judgment for the provider; a separate concurrence agreed only with the result and disagreed with propositions in the cited cases.
Appellate Term, Second Department
Dec 12, 2006
2006 NY Slip Op 52469(U)
Insurer prevailed
The provider failed to prove submission of its claims, and the insurer's delay letters did not establish receipt of the particular claims. A mailing presumption could arise from actual mailing or a standard office practice ensuring proper addressing and mailing, but the corporate officer's affidavit was insufficient. Counsel lacked personal knowledge of mailing, making the affirmation without probative value. The two delay letters omitted the claim amounts and therefore did not specifically identify the claims at issue. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion because the provider failed to establish prima facie entitlement to judgment.
Appellate Term, Second Department
Dec 12, 2006
2006 NY Slip Op 52470(U)
Insurer prevailed
The provider failed to prove claim submission in its moving papers and could not supply that essential element through inadmissible reply material. Counsel attempted to introduce a purported verification request from the insurer in a reply affirmation to demonstrate receipt of the claim. That evidence was neither admissible nor properly before the court. Following Winegrad v New York Univ. Med. Center, failure to make a prima facie showing required denial regardless of the sufficiency of the opposition. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for assigned no-fault benefits.
Appellate Term, Second Department
Dec 11, 2006
2006 NY Slip Op 26536
Split result
Preclaim IME requests do not toll the denial period, and mutually agreed rescheduling of initial IMEs is not a follow-up request. The insurer's preclaim requests did not toll its denial period for the first claim received. Even treating a later delay letter as verification under 11 NYCRR 65-3.5 (b), no follow-up followed the missed rescheduled IMEs as required by 11 NYCRR 65-3.6 (b). Timely denials and admissible nonappearance proof raised medical-necessity issues on three later claims. The Appellate Term, Second Department, modified the order to grant the provider summary judgment only on the first claim and remanded for interest, attorney fees, and remaining proceedings; a partial dissent viewed the delay letter and rescheduled appointments as sufficient to make the first denial timely.
Appellate Term, Second Department
Dec 11, 2006
2006 NY Slip Op 52553(U)
Insurer prevailed
A billing provider cannot recover direct assigned no-fault payments for services rendered by independent contractors rather than its employees. Under 11 NYCRR 65-3.11 (a), it is not the provider of those services. Three of the provider's five claim forms identified the treating providers as independent contractors. The remaining forms entered "N/A" for the business relationship, leaving triable issues and failing to establish prima facie entitlement to summary judgment. The Appellate Term, Second Department, affirmed denial of the provider's partial summary judgment motion and passed on no other issue; a separate concurrence agreed only with the result and expressed disagreement with propositions in the cited cases.
Appellate Term, Second Department
Dec 11, 2006
2006 NY Slip Op 52549(U)
Insurer prevailed
Denial of a petition to vacate a master arbitrator's award requires confirmation of the award under CPLR 7511 (e). The provider sought first-party no-fault benefits through compulsory arbitration, where the arbitrator denied the claim and the master arbitrator affirmed. On review, the Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld denial of the provider's vacatur petition. It modified the order to add confirmation of the award, leaving the insurer's favorable award intact. The court also noted that CPLR 411 requires a special proceeding to terminate in a judgment rather than an order.
Appellate Term, Second Department
Dec 8, 2006
2006 NY Slip Op 26496
Provider prevailed
A provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment. Exercising its discretion under CPLR 3212 (b), the Appellate Term, Second Department, searched the record and affirmed the order, insofar as appealed from, granting the provider summary judgment. The insurer's denial established receipt of the claim. The denial was untimely under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (g) (3); an EUO request under the regulations predating April 5, 2002 did not toll the determination period. The staged-collision defense remained available, but unsupported documents and affidavits lacking personal knowledge failed to raise a triable issue of fraud. A dissent opposed using the opposition papers to cure the provider's deficient showing.
Appellate Term, Second Department
Dec 8, 2006
2006 NY Slip Op 52370(U)
Insurer prevailed
The insurer's denial and affirmed peer-review report adequately stated the medical-necessity defense and raised a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's cross motion for summary judgment. The provider established submission of its claim by attaching the insurer's denial form, which acknowledged receipt. Under Insurance Law § 5106 (a), the prima facie showing generally requires proof of claim submission and overdue payment. Contrary to the provider's challenge, the denial and peer-review report fully and explicitly stated the reasons for denying the claim for lack of medical necessity. A separate concurrence agreed with the result while expressing disagreement with propositions in the cited authorities.
Appellate Term, Second Department
Dec 8, 2006
2006 NY Slip Op 52371(U)
Insurer prevailed
The provider failed to establish submission of the claim form because its affidavit and the insurer's acknowledgment were insufficient. The Appellate Term, Second Department, affirmed the denial of the provider's motion for summary judgment. Under Insurance Law § 5106 (a), a provider must prove submission of statutory claim forms stating the fact and amounts of the losses and that payment is overdue. The corporate officer's affidavit did not establish submission, and the insurer's letter acknowledged a claim without stating its amount, leaving receipt of the particular claim form unproved. The burden therefore never shifted to the insurer. A separate concurrence agreed with the result while expressing disagreement with propositions in the cited authorities.
Appellate Term, Second Department
Dec 1, 2006
2006 NY Slip Op 26483
Insurer prevailed
The provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents. The officer's affidavit did not demonstrate personal knowledge of the provider's office practices and procedures sufficient for admission under CPLR 4518. The insurer preserved that objection, and its acknowledgment of receipt did not concede the facts asserted in the claims. The insurer also raised a triable issue whether the alleged injuries arose from an insured incident. The Appellate Term, Second Department, reversed the order granting the provider summary judgment, denied that motion, and remanded for a determination de novo of the insurer's cross motion to compel depositions, which had effectively been denied as academic.
Appellate Term, Second Department
Dec 1, 2006
2006 NY Slip Op 52305(U)
Insurer prevailed
The provider failed to establish a business-record foundation for its claim forms through its corporate officer's affidavit. The Appellate Term, Second Department, affirmed the denial of the provider's motion for summary judgment seeking assigned no-fault benefits. Among the affidavit's deficiencies, the officer did not demonstrate sufficient personal knowledge of the provider's office practices concerning the claims to establish admissibility under CPLR 4518, a defect the insurer raised in opposition. The provider therefore failed to establish prima facie entitlement to judgment as a matter of law; the court reached no other issue.
Appellate Term, Second Department
Dec 1, 2006
2006 NY Slip Op 52303(U)
Insurer prevailed
The provider's summary judgment motion was denied for failure to establish a business-record foundation for its supporting documents. The Appellate Term, Second Department, affirmed, relying on the reasons stated in the companion appeal Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co., decided the same day, No. 2005-1801 K C, concerning the corporate officer's insufficient foundation affidavit.
Appellate Term, Second Department
Dec 1, 2006
2006 NY Slip Op 52304(U)
Insurer prevailed
The provider's corporate officer failed to establish personal knowledge sufficient to authenticate the motion exhibits as business records. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The officer's conclusory assertion that the exhibits were business records did not establish knowledge of the provider's practices and procedures. The court followed the companion appeal Dan Medical, P.C. v New York Cent. Mut. Fire Ins. Co., decided the same day, No. 2005-1801 K C. A separate concurrence agreed with the result while questioning propositions in the cited authorities.
Trial court, Second Department
Dec 28, 2006
2006 NY Slip Op 26539
Insurer prevailed
A provider seeking discovery of its assignor's no-fault file must pay reasonable reproduction costs absent a basis to depart from the rule. The District Court, Nassau County, found no basis for an exception and granted the insurer's discovery motion to the extent of directing responses and depositions. Exercising its authority under CPLR 3103 (a) and Uniform District Court Act § 1101 (c), it required the insurer to disclose the file's page count and the provider to supply an assignor-executed HIPAA authorization. The provider could inspect and select pages for copying at 25 cents per page, inspect and photocopy at the courthouse, obtain the entire file at 25 cents per page, or pay the requested $95 reproduction fee.
Trial court, Second Department
Dec 22, 2006
2006 NY Slip Op 52573(U)
Provider prevailed
The insurer failed at trial to support its staged-accident defense with admissible evidence establishing a founded belief of no coverage. The provider established its prima facie case through a notice to admit. The insurer's sole witness described suspicious indicators but had neither personally investigated the claim nor participated in the EUO or denial decision. The Civil Court, Kings County, found those indicators speculative and insufficient under the preponderance standard. Applying 11 NYCRR 65-3.8 (e) (2), it held that the insurer had not rebutted the presumption of coverage or shifted the burden to the provider. Judgment was directed for the provider with statutory interest and attorney fees.
Trial court, Second Department
Dec 21, 2006
2006 NY Slip Op 52479(U)
Provider prevailed
The insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial. The billing company's witness established a business-record foundation under CPLR 4518 (a) because the company routinely incorporated the provider's information. The insurer's witness relied on documents in the claim file without sufficiently establishing mailing procedures or actual mailing of verification and peer review reports. Under 11 NYCRR 65.15 (d) (1) and (g) (3), the unproved verification mailing did not extend the 30-day denial period. The denial also omitted required information under 11 NYCRR 65-3.4 (c) (11). The Civil Court, Kings County, directed judgment for the provider with interest and attorney fees; medical-necessity testimony could not cure the untimely denial.
Trial court, Second Department
Dec 14, 2006
2006 NY Slip Op 26503
Insurer prevailed
MVAIC established lack of coverage because the assignor failed to satisfy the statutory reporting requirements. The District Court, Nassau County, granted MVAIC summary judgment and dismissed the provider's acupuncture claims. MVAIC showed that the assignor had not provided a police report or notice of intent to claim benefits. The provider argued that mailing a claim approximately 70 days after the accident required payment or a timely denial. The court held that compliance with Insurance Law article 52, including the notice requirements of Insurance Law § 5208 (a) (2), was necessary before the assignor became a covered person entitled to no-fault benefits under Insurance Law § 5221 (b) (2). MVAIC's failure to deny timely did not preclude its lack-of-coverage defense.
Trial court, Second Department
Dec 13, 2006
2006 NY Slip Op 26498
Provider prevailed
Statutory interest and attorney's fees on unpaid no-fault bills are calculated separately for each NF-3, even for one assignor. After trial on stipulated facts, the Civil Court, Queens County, awarded the provider judgment with 2% monthly interest on eight unpaid bills that the insurer had never denied. Under 11 NYCRR 65-3.8 (a) (1) and 65-3.9 (a) and (c), the court rejected accrual only from commencement of suit because no denial had triggered an interest toll. Following Smithtown Gen. Hosp. v State Farm, it rejected the Insurance Department's aggregate-fee interpretation as unreasonable and contrary to prompt payment under Insurance Law § 5106 (a). It awarded fees separately for each NF-3 under 11 NYCRR 65-4.6 (c) and (e), subject to the $60 minimum and $850 maximum.
Trial court, Second Department
Dec 7, 2006
2006 NY Slip Op 26531
Insurer prevailed
An insurer may require hard-copy signatures on no-fault claim forms rather than accept electronic signatures. The District Court, Suffolk County, deferred to the Insurance Department's interpretation that neither the Electronic Signatures and Records Act nor the Electronic Signatures in Global and National Commerce Act compels acceptance. The provider's signature marked "on file" also did not satisfy the requirement for a properly executed assignment under 11 NYCRR 65-3.11 (b). The insurer timely requested signature verification and sent a follow-up, but the provider did not respond. The payment-or-denial period remained tolled under 11 NYCRR 65-3.8 (a) (1), making the action premature. The court granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion as moot.
Trial court, Second Department
Dec 6, 2006
2006 NY Slip Op 52413(U)
Provider prevailed
The insurer failed to prove timely denial mailing because its affidavits did not establish generation and deposit of the subject denials for pickup. The provider established its prima facie case under 11 NYCRR 65-3.8 (c) with admissible claims and its billing manager's assertion of personal mailing. The insurer's unit supervisor did not establish personal mailing knowledge, responsibility for mailing compliance, or a sufficient basis for asserting timely denial, and omitted one bill. The mailroom supervisor described collection procedures, but that did not supply missing proof that the denials were timely generated and deposited. The Civil Court, Kings County, granted the provider summary judgment with statutory interest and attorney fees.
Trial court, Second Department
Dec 5, 2006
2006 NY Slip Op 52340(U)
Insurer prevailed
MVAIC obtained summary judgment because the assignor failed to establish compliance with the statutory accident-reporting requirements. The District Court, Nassau County, dismissed the provider's claim for acupuncture services. MVAIC showed that the assignor had not supplied a police report or notarized household affidavit. The provider's assertion that a notice of claim had been filed within 180 days did not establish eligibility under Insurance Law article 52. The assignor failed to verify that the accident occurred or was reported to police within 24 hours under Insurance Law § 5208. Compliance with article 52 was a prerequisite to covered-person status under Insurance Law § 5221 (b) (2), and MVAIC's failure to deny the bills timely did not preclude dismissal for lack of coverage.
Trial court, Second Department
Dec 5, 2006
2006 NY Slip Op 52343(U)
Insurer prevailed
MVAIC obtained dismissal because the provider failed to establish the assignor's eligibility for benefits under Insurance Law article 52. The District Court, Nassau County, granted MVAIC's summary judgment motion and dismissed the complaint. MVAIC showed that the assignor had not supplied proof of New York residency; the provider's opposition did not address that deficiency. Compliance with article 52 was required before recovery under article 51, and MVAIC's failure to deny timely did not preclude the coverage defense under Insurance Law § 5221 (b) (2). The body also applied the three-year limitations period in CPLR 214 (2), dismissing all but two claims as untimely and those two for lack of qualification, although a footnote said the limitations argument would not be considered.
Trial court, First Department
Dec 1, 2006
2006 NY Slip Op 52450(U)
Provider prevailed
The insurer's untimely denial precluded its fee-schedule, unbundling and provider-fraud defenses. The Civil Court, New York County, granted both providers summary judgment for unpaid no-fault benefits and denied the insurer's requests for dismissal, discovery and leave to amend its answer and assert a counterclaim. The providers established mailing and receipt of their claims. The insurer failed to establish that the surgical facility lacked the required license when services were rendered; its absence from a Workers' Compensation Board list did not establish ineligibility under Public Health Law § 2807 (1). Under Mallela, the physician's later license revocation did not establish good cause for corporate-status discovery. The proposed defense and counterclaim lacked merit under CPLR 3025 (b).
