No-Fault Decisions, February 2007

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 27088 Provider prevailed

Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co.

The insurer failed to prove timely mailing of its denials and was precluded from asserting lack of medical necessity on three claims. The Appellate Term, Second Department, reversed the order and granted the provider summary judgment. Although the denials appeared timely on their face, the insurer supplied neither documentary proof nor a sufficient affidavit establishing actual mailing or a presumption of mailing within 30 days under 11 NYCRR 65-3.8 (c). The majority did not review the provider's prima facie showing because the insurer raised no objection below or on appeal. The matter was remanded for interest and attorney's fees under Insurance Law § 5106 (a); a dissent would have affirmed because the provider failed to establish a business-record foundation.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50369(U) Split result

V.S. Med. Servs., P.C. v One Beacon Ins.

The insurer failed to prove timely mailing of its denials, while the provider failed to establish a business-records foundation. The Appellate Term, Second Department, sustained denial of the provider's partial summary judgment motion because its officer's affidavit lacked the personal knowledge needed to authenticate the supporting records. The majority reversed the judgment dismissing the complaint, vacated the grant of the insurer's cross motion, denied that cross motion, and reinstated the complaint. Without evidence from someone with personal knowledge of timely mailing, a factual issue remained whether the insurer was precluded from asserting lack of medical necessity. The court reached no other issues; a dissent would have affirmed, finding the insurer's showing sufficient and the provider's opposition inadequate.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50372(U) Provider prevailed

Stanley Liebowitz, M.D. P.C. v American Tr. Ins. Co.

The insurer's appeal was dismissed because summary judgment for the provider was entered on the insurer's default. The insurer submitted no written opposition to the provider's cross motion for summary judgment on assigned no-fault claims. The Appellate Term, Second Department, held that the insurer was not aggrieved under CPLR 5511 and dismissed its appeal from the resulting judgment. A separate concurrence agreed with dismissal but argued that CPLR 4511 (a) required judicial notice of the governing regulations. Citing Insurance Law § 5108 (a), the concurrence maintained that the absence of an attached fee schedule did not authorize an award potentially exceeding permitted charges and that additional proof or a hearing could be required.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 27234 Insurer prevailed

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co.

A medical-necessity denial's reference to a negative peer review report sufficiently identifies the basis for denial. The provider sought summary judgment because the insurer's NF-10 form lacked specific facts and a medical rationale. The Appellate Term, Second Department, affirmed denial of the motion, following A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. and relying on 11 NYCRR 65-3.8 (b) (4). It expressly directed that its contrary prior decisions concerning denial specificity should no longer be followed.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50374(U) Insurer prevailed

Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co.

The provider's officer did not establish the personal knowledge needed to admit the summary judgment documents as business records. The insurer challenged the foundation supplied by the officer's affidavit, which identified the attached documents as business records only conclusorily. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, found insufficient personal knowledge of the provider's practices and procedures. It affirmed denial of the provider's motion for failure to establish a prima facie case.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50375(U) Insurer prevailed

Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co.

The provider failed to authenticate its supporting documents as business records through an officer with the required personal knowledge. The insurer challenged the corporate officer's affidavit supporting the provider's summary judgment motion on assigned no-fault claims. The affidavit described the documents conclusorily without establishing familiarity with the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed denial of the motion for failure to establish a prima facie case.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50376(U) Insurer prevailed

Fortune Med., P.C. v Nationwide Mut. Ins. Co.

The provider failed to establish its prima facie case because its officer's affidavit lacked a business-records foundation. The Civil Court denied summary judgment for lack of alleged personal knowledge of claim mailing. The insurer first raised the foundation defect on appeal. The Appellate Term, Second Department, found insufficient personal knowledge of the provider's practices and procedures to authenticate the attached documents as business records and affirmed denial of the provider's motion.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50377(U) Insurer prevailed

Mega Supply & Billing, Inc. v Clarendon Natl. Ins. Co.

The provider's conclusory affidavit failed to establish a business-records foundation for its summary judgment evidence. The insurer challenged the corporate officer's affidavit, which described the attached documents as business records without demonstrating personal knowledge of the provider's practices and procedures. Applying Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, found the foundation insufficient for admission of the documents. It affirmed denial of the provider's motion for failure to establish a prima facie case.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50378(U) Insurer prevailed

Bedford Park Med. Practice, P.C. v New York Cent. Mut. Fire Ins. Co.

The provider's corporate officer failed to lay a business-records foundation, defeating the provider's prima facie summary judgment showing. The insurer first challenged the supporting affidavit on appeal from an order granting summary judgment for assigned no-fault benefits. The Appellate Term, Second Department, found that the affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to authenticate the attached documents. The court reversed the order and denied the provider's motion.

Appellate Term, Second Department Feb 27, 2007 2007 NY Slip Op 50379(U) Insurer prevailed

Alternative Health Care of N.Y. v Progressive Ins. Co.

A court denying vacatur of a master arbitrator's award must confirm that award under CPLR 7511 (e). The Appellate Term, Second Department, found a rational basis under Matter of Petrofsky for the master arbitrator's determination upholding denial of the provider's no-fault claims. It modified the order denying the petition to confirm the award and affirmed as modified, preserving the insurer's victory. The court also noted that CPLR 411 requires a judgment to conclude a special proceeding.

Appellate Term, First Department Feb 26, 2007 2007 NY Slip Op 50302(U)

Home Care Ortho. Med. Supply, Inc. v American Manufactures Mut. Ins. Co.

An insurer's medical-necessity expert may testify without having performed the original peer review if testimony stays within its grounds. The provider obtained a directed verdict after seeking to preclude the insurer's expert on two assigned no-fault claims. The expert could be fully cross-examined, and testimony would be limited to the grounds in the original peer review under General Acc. Ins. Group v Cirucci. Reliance in part on the assignors' medical records did not bar testimony; the provider could not challenge records it had affirmatively relied on as proof of claim in response to verification requests. The Appellate Term, First Department, reversed, denied the directed-verdict motion and remanded for trial.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50365(U) Insurer prevailed

First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co.

The provider failed to establish a prima facie case because its employee's affidavit did not lay a business-records foundation. In an action for assigned first-party no-fault benefits, the provider appealed denial of its summary judgment motion. The employee did not establish personal knowledge of the provider's practices and procedures sufficient to admit the annexed documents as business records. The Appellate Term, Second Department, affirmed denial of the provider's motion.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50362(U) Insurer prevailed

563 Grand Med., P.C. v State-Wide Ins. Co.

Denial of a petition to vacate a master arbitrator's award requires confirmation of the award under CPLR 7511 (e). The provider sought to vacate a master arbitrator's determination upholding an arbitration award denying first-party no-fault benefits. The Appellate Term, Second Department, found a rational basis for that determination and upheld denial of the petition. It modified the order to add confirmation of the award, thereby sustaining the insurer's position. The court also noted that a special proceeding should terminate in a judgment rather than an order under CPLR 411.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50363(U) Insurer prevailed

Vega Chiropractic, P.C. v Eveready Ins. Co.

The insurer's proof that the assignor missed two properly noticed pre-claim IMEs warranted denial of the provider's summary judgment motion. The insurer conceded receipt of the claims, and the provider established its prima facie case. Lack of authentication of the assignor's signature did not itself invalidate the assignment absent a statutory or regulatory requirement. The insurer showed that the assignor received the initial IME notice and failed to appear, then received a timely follow-up notice under 11 NYCRR 65-3.6 (b) and again failed to appear. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50364(U) Insurer prevailed

Great Wall Acupuncture v New York Cent. Mut. Fire Ins. Co.

The provider's conclusory employee affidavit failed to establish the business-records foundation required for summary judgment. The provider sought assigned first-party no-fault benefits and supported its motion with counsel's affirmation, an employee affidavit and annexed documents. Although the Civil Court denied the motion for lack of personal knowledge of claim mailing, the insurer challenged the business-records foundation for the first time on appeal. The employee's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the documents. The Appellate Term, Second Department, affirmed the denial of summary judgment because the provider failed to make a prima facie showing.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50366(U) Insurer prevailed

Grigory v State Wide Ins. Co.

The provider's supporting affidavit failed to establish personal knowledge sufficient to authenticate the attached business records. The affiant was described alternatively as an employee or shareholder of the provider, or an employee of its billing company. The Appellate Term, Second Department, found that the conclusory affidavit did not demonstrate knowledge of the provider's practices and procedures sufficient to admit the documents. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., it affirmed denial of summary judgment for failure to establish a prima facie case.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50367(U) Insurer prevailed

Vista Surgical Supplies, Inc. v GEICO Ins. Co.

The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation. The insurer challenged the affidavit as vague and insufficient. The Appellate Term, Second Department, found that it described the attached documents as business records conclusorily, without establishing personal knowledge of the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court affirmed denial of the provider's summary judgment motion and did not reach the remaining contentions.

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50368(U) Insurer prevailed

R.J. Professional Acupuncturist, P.C. v Allstate Ins. Co.

A notice of petition to vacate a master arbitrator's award must be served in the same manner as a summons under CPLR 403 (c). The provider commenced a special proceeding after the master arbitrator sustained denial of its assigned no-fault claim. The insurer moved to dismiss for failure to serve a notice of petition and petition properly under CPLR 402 and 403. The provider argued that seeking review merely continued the arbitration rather than commenced a proceeding, but served the notice on the insurer's attorney by regular mail. The Appellate Term, Second Department, affirmed dismissal for improper service under CPLR 403 (c).

Appellate Term, Second Department Feb 26, 2007 2007 NY Slip Op 50411(U) Insurer prevailed

Superior Med. Equip. v Hudson Ins. Co.

A court denying a petition to vacate a master arbitrator's award must confirm the award under CPLR 7511 (e). The Appellate Term, Second Department, found a rational basis under Matter of Petrofsky for the master arbitrator's determination sustaining denial of the provider's no-fault claims. It modified the order denying vacatur to confirm the award and affirmed as modified, leaving the insurer prevailing. The court also noted that CPLR 411 requires a special proceeding to terminate in a judgment.

Appellate Term, Second Department Feb 16, 2007 2007 NY Slip Op 50358(U) Insurer prevailed

Ava Acupuncture, P.C. v NY Cent. Mut. Ins. Co.

A notice of trial should be vacated when the certificate of readiness erroneously states that discovery was completed or waived. In this assigned no-fault benefits action, the insurer served deposition notices for the provider and others. The provider then filed a notice of trial and certificate of readiness despite an outstanding discovery request. The insurer's motion to vacate was unopposed, but the Civil Court denied it because the requested discovery was outside the provider's purview. The Appellate Term, Second Department, reversed and granted the insurer's motion to vacate the notice of trial and certificate of readiness, relying on the undisputed outstanding discovery.

Appellate Term, Second Department Feb 16, 2007 2007 NY Slip Op 50357(U) Split result

Fair Price Med. Supply Corp. v New York Cent. Mut. Fire Ins. Co.

The provider and insurer failed to establish entitlement to summary judgment because their affidavits lacked the necessary personal knowledge. The provider's corporate officer did not establish knowledge of the provider's practices and procedures sufficient to admit the annexed documents as business records. The provider therefore failed to make a prima facie showing on its assigned no-fault claims. The insurer, which cross-moved based on two alleged IME nonappearances, supplied no affidavit from someone with personal knowledge establishing those failures to appear. The Appellate Term, Second Department, modified the order by denying the insurer's cross motion and otherwise affirmed, leaving both motions denied.

Appellate Term, Second Department Feb 14, 2007 2007 NY Slip Op 50352(U) Provider prevailed

Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co.

The insurer failed to support the alleged IME nonappearances with admissible evidence from anyone with personal knowledge. The insurer sought summary judgment dismissing assigned no-fault claims because the assignor allegedly missed IMEs scheduled before receipt of the claims. Its affidavits established mailing of the IME notices and claim denials, but did not establish the nonappearances. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., an insurer seeking summary judgment on that ground must prove both mailing and nonappearance. The Appellate Term, Second Department, affirmed denial of the insurer's motion on this evidentiary ground, although the District Court had relied on a medical-necessity issue.

Appellate Term, Second Department Feb 14, 2007 2007 NY Slip Op 50384(U) Split result

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

The provider could not be compelled to produce the treating physician for deposition while the physician's employment status was unclear. The insurer sought discovery on whether the physician was the provider's employee or an independent contractor when treating the assignor. Under CPLR 3106 (b), the Appellate Term, Second Department, held that uncertainty about employment when the insurer sought relief precluded an order requiring the provider to produce that particular physician. It modified the order to require a witness knowledgeable about the physician's employment periods, if any, and affirmed it as modified. The provider obtained relief from the named-witness requirement, while the insurer retained discovery concerning employment status.

Appellate Term, Second Department Feb 14, 2007 2007 NY Slip Op 50354(U) Insurer prevailed

First Help Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

The provider's failure to comply fully with ordered discovery concerning fraudulent incorporation warranted dismissal under CPLR 3126. The insurer had obtained an order directing the provider to answer interrogatories and produce an appropriate deposition representative regarding ownership, operation and control. The insurer then moved to dismiss for continued noncompliance or, alternatively, for summary judgment, asserting that the provider's principal had not answered questions on those subjects. The provider did not oppose the motion. Following Lexington Acupuncture, P.C. v State Farm Ins. Co., which permitted discovery into fraudulent incorporation, the Appellate Term, Second Department, reversed the denial and granted the insurer's motion to dismiss.

Appellate Term, First Department Feb 8, 2007 2007 NY Slip Op 50213(U) Split result

East Coast Acupuncture Servs., P.C. v American Tr. Ins. Co.

The provider obtained summary judgment on two claims because the insurer's peer review lacked an adequate factual basis and medical rationale. The peer review was insufficient to defeat the provider's prima facie showing on those assigned first-party no-fault claims. For a third claim, however, the insurer's neurologist's IME report raised a triable issue concerning the medical necessity of the billed acupuncture treatments. The Appellate Term, First Department, modified the order to grant the provider partial summary judgment on the two peer-review claims and otherwise affirmed, leaving the third claim unresolved.

Appellate Term, Second Department Feb 7, 2007 2007 NY Slip Op 50243(U) Insurer prevailed

Fortune Med., P.C. v Allstate Ins. Co.

An insurer's acknowledgment of claim receipt does not concede the admissibility of the claim forms or the facts they contain. The provider moved for summary judgment on assigned no-fault claims, but its corporate officer's affidavit did not establish personal knowledge of the billing practices and procedures needed to admit the annexed documents under CPLR 4518. The affidavit therefore lacked a proper business-records foundation. The provider argued that the insurer's denial form established its claims, but an acknowledgment of receipt established only receipt, following Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. The Appellate Term, Second Department, affirmed denial of the provider's motion.

Appellate Term, Second Department Feb 7, 2007 2007 NY Slip Op 50245(U) Insurer prevailed

Vista Surgical Supplies, Inc. v Progressive Cas. Ins. Co.

The provider's motion for summary judgment on assigned no-fault claims was denied for failure to make a prima facie showing. The Appellate Term, Second Department, affirmed, agreeing that the moving papers were insufficient and citing Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. A separate concurrence agreed with the result while expressing disagreement with propositions in the cited case.

Appellate Term, Second Department Feb 7, 2007 2007 NY Slip Op 50246(U) Insurer prevailed

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

The provider's corporate officer affidavit failed to establish the business-records foundation needed for a prima facie case. The provider moved for summary judgment on assigned first-party no-fault claims. The Civil Court denied the motion because the moving papers did not allege personal knowledge of claim mailing. On appeal, the insurer challenged the foundation for the annexed documents for the first time. The officer did not establish personal knowledge of the provider's practices and procedures sufficient to admit those documents as business records. The Appellate Term, Second Department, affirmed denial of the provider's motion on that ground.

Appellate Term, Second Department Feb 6, 2007 2007 NY Slip Op 27057 Insurer prevailed

Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer established timely mailing of IME requests, and the record did not support a factual dispute over the reason for the assignor's nonappearance. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the provider's complaint. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., attendance at reasonably required IMEs was a condition precedent to liability under 11 NYCRR 65-1.1. The insurer's affidavits established timely mailing of the requests and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Because the provider did not challenge the sufficiency of the nonappearance proof, the appellate court did not review that determination.

Appellate Term, Second Department Feb 6, 2007 2007 NY Slip Op 50237(U) Insurer prevailed

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

The provider's officer failed to establish personal knowledge sufficient to admit the claim documents as business records. The medical-supply provider moved for summary judgment on assigned first-party no-fault claims. Its officer described the annexed documents as business records in conclusory terms, and the insurer challenged the foundation under CPLR 4518. The affidavit did not establish knowledge of the provider's office practices and procedures. The Appellate Term, Second Department, affirmed denial of the provider's motion for failure to make a prima facie showing.

Appellate Term, Second Department Feb 6, 2007 2007 NY Slip Op 50238(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co.

The provider's conclusory corporate officer affidavit did not establish a business-records foundation for summary judgment. The provider sought assigned first-party no-fault benefits, and the insurer challenged the admissibility of the supporting documents. The officer did not establish personal knowledge of the provider's practices and procedures sufficient to admit those documents as business records. The Appellate Term, Second Department, affirmed denial of the provider's motion for failure to make a prima facie showing.

Appellate Term, Second Department Feb 5, 2007 2007 NY Slip Op 50232(U) Insurer prevailed

King's Med. Supply Inc. v GEICO Cas. Ins. Co.

Severance of five no-fault claims was upheld because separate accidents and peer reviews presented few common factual or legal issues. The medical-supply provider sued as assignee of five persons injured in separate accidents. It opposed severance because all claims were denied for lack of medical necessity and four involved the same equipment type. Under CPLR 603, severance rests in judicial discretion and should not be disturbed absent prejudice to a substantial right. Each denial rested on a different peer review, potentially requiring five doctors' testimony, and a single trial risked confusion over distinct accidents, injuries and supplies. The Appellate Term, Second Department, affirmed the order granting the insurer's severance motion.

Appellate Term, Second Department Feb 1, 2007 2007 NY Slip Op 50262(U) Insurer prevailed

Infinity Chiropractic, P.C. v New York Cent. Mut. Ins. Co.

The provider failed to establish a business-records foundation and could not appeal an unopposed discovery order entered on default. The insurer moved to compel depositions, and the provider cross-moved for summary judgment on assigned no-fault claims. The provider submitted no written opposition to the discovery motion, which was granted to require production of a treating physician. Under CPLR 5511, the Appellate Term, Second Department, dismissed the provider's appeal from that portion of the order. It affirmed denial of the provider's cross motion because the corporate officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the annexed documents as business records.

Appellate Term, Second Department Feb 1, 2007 2007 NY Slip Op 50263(U) Insurer prevailed

AVA Acupuncture P.C. v Lumbermens Mut. Cas. Co.

A provider that retains an untimely answer without timely objection waives the lateness and cannot obtain a default judgment on that ground. The insurer served a late answer, which the provider did not reject, and the provider then obtained a default judgment. Under CPLR 2101 (f), the provider was deemed to have accepted the answer. Vacatur was warranted without a showing of a meritorious defense because the representation that the insurer was in default was incorrect. The Appellate Term, Second Department, modified the order to vacate the default judgment; the insurer's request to compel acceptance of the answer was denied as academic.

Appellate Term, Second Department Feb 1, 2007 2007 NY Slip Op 50264(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v Mercury Cas. Co.

The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-records foundation. The provider moved for summary judgment on assigned no-fault claims, submitting counsel's affirmation, a corporate officer's affidavit, and supporting documents. The officer described the documents as business records only in conclusory terms and did not establish personal knowledge of the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion because the documents lacked a proper foundation for admission as business records.

Appellate Term, Second Department Feb 1, 2007 2007 NY Slip Op 50260(U) Insurer prevailed

A.B. Med. Servs. PLLC v State-Wide Ins. Co.

The providers' summary judgment motion was denied because the insurer's affidavit sufficiently established mailing of the IME notices. The Appellate Term, Second Department, affirmed, relying on an affidavit from an employee of the company retained to schedule and perform IMEs. It rejected the providers' contention that the insurer lacked nonhearsay evidence of timely mailing, citing Amaze Med. Supply Inc. v General Assur. Co.

Appellate Term, Second Department Feb 1, 2007 2007 NY Slip Op 50261(U) Insurer prevailed

DJS Med. Supplies, Inc. v Progressive Cas. Ins. Co.

The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-records foundation. The provider cross-moved for summary judgment on assigned first-party no-fault claims. Its officer described the annexed documents as business records only in conclusory terms, without establishing personal knowledge of the provider's practices and procedures sufficient to admit them. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's cross motion.

Trial court, Second Department Feb 23, 2007 2007 NY Slip Op 27072 Provider prevailed

Elmont Open MRI & Diagnostic Radiology, P.C. v Country-Wide Ins. Co.

⚠ Not followed by Carle Place Chiropractic v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 51065(U))

Interest on unpaid no-fault benefits runs from 30 days after claim receipt when the insurer issues no valid denial within that period. The District Court, Nassau County, granted the provider summary judgment, finding the insurer's timely medical-necessity denial invalid because it used a disapproved form omitting 15 fields, contrary to 11 NYCRR 65-3.4 (c) (11) and 65-3.8 (c) (1). Proper claim submission established prima facie medical necessity; the insurer offered no rebuttal and was precluded from defending the claim. Under 11 NYCRR 65-3.9 (a) and (c), the invalid denial did not postpone interest until suit commenced. The court distinguished proper, timely denials establishing a prima facie defense, for which delaying suit or arbitration beyond 30 days after receipt suspends interest until proceedings begin.

Trial court, Second Department Feb 23, 2007 2007 NY Slip Op 27076 Split result

Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co.

A prevailing no-fault claimant's attorney fees are calculated per claim form under 11 NYCRR 65-4.6 (e) and (c). Applying Insurance Law § 5106 (a), the Civil Court, Queens County, resolved fee applications in two actions, following binding Appellate Division precedent rather than an Insurance Department opinion letter advocating calculation on the total recovery. The letter was an interpretive statement without legal effect under State Administrative Procedure Act § 102 (2) (b) (iv). The court granted one provider's requested fees for two claim forms. It denied the other provider's application because that provider had settled the same claim in arbitration through different counsel and showed no unpaid benefits or interest to support a fee award. The court left open whether that provider owed fees to its attorney of record.