Appellate Division, Second Department
Mar 27, 2007
2007 NY Slip Op 02761
Provider prevailed
The SUM insurer could not disclaim for failure to return its proof-of-claim form without showing prejudice on this record. The policy conditioned denial of coverage for breach of post-accident duties on prejudice. The injured claimant substantially complied with notice and proof requirements by providing prompt written accident notice, a no-fault application, a sworn police report, and medical authorizations. The insurer demonstrated no prejudice from the missing form. Extending Rekemeyer v State Farm Mut. Auto. Ins. Co. from notice of claim to proof of claim, the Appellate Division, Second Department, reversed the order and judgment, denied the CPLR article 75 petition, and dismissed the proceeding to stay underinsured motorist arbitration. The claimant's untimely-disclaimer and waiver arguments were not considered because they were first raised on appeal.
Appellate Division, Second Department
Mar 27, 2007
2007 NY Slip Op 02724
Insurer prevailed
The insurer's hospital records and other materials raised a factual issue whether the treated condition was unrelated to the motor vehicle accident. The hospital established prima facie entitlement to summary judgment on the first cause of action, but the insurer's opposing evidence created an issue concerning the propriety of its denial of no-fault benefits. The Appellate Division, Second Department, affirmed the order denying the hospital's motion. It also dismissed another hospital's appeal under CPLR 5511 because that hospital was not aggrieved by the appealed order.
Appellate Division, First Department
Mar 13, 2007
2007 NY Slip Op 01973
Insurer prevailed
A nurse's peer review denying no-fault benefits for lack of medical necessity is not per se invalid. Such a review may establish admissible medical opinions if the nurse's training, observations, and actual experience supporting those opinions are sufficiently set forth. The providers' complaint and proposed amendment rested on the contrary, defective theory. The Appellate Division, First Department, affirmed dismissal under CPLR 3211 (a) and denial of the providers' cross motion for summary judgment and amendment. The providers' argument that they should be permitted to replead specific benefit claims or the class action was not properly before the court because their cross motion had not sought that relief.
Appellate Division, Second Department
Mar 13, 2007
2007 NY Slip Op 02129
Insurer prevailed
The injured claimant's uninsured motorist demand was untimely because notice following the tortfeasor's insurer's insolvency was delayed. The claimant learned of the insolvency and the resulting right to uninsured motorist benefits in mid-to-late 2003 but did not assert the claim and demand arbitration until May 2004. That substantial delay violated the policy's requirement of notice as soon as practicable. The insurer first learned that insolvency was the basis of the claim through opposition papers and promptly disclaimed in reply, satisfying Insurance Law § 3420 (d). The Appellate Division, Second Department, reversed the judgment denying the insurer's CPLR article 75 petition, granted the petition, and permanently stayed arbitration.
Appellate Term, Second Department
Mar 30, 2007
2007 NY Slip Op 50639(U)
Insurer prevailed
The insurer established timely mailing of verification requests and its denial, and the provider did not prove an unlicensed-adjuster defect. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. The insurer's affidavits detailed office practices ensuring proper addressing and mailing of the initial and follow-up verification requests and denial. The provider also argued that the company issuing the denial acted as an unlicensed independent adjuster under Insurance Law § 2101 (g) (1) and § 2102 (a) (1). The provider failed to establish that contention; the company's representative described mailing requests, scheduling a peer review, and mailing the denial at the insurer's specific request and on its behalf.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50680(U)
Split result
Peer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification. The Appellate Term, Second Department, modified the order to grant the provider partial summary judgment on two claims supported by such reviews and a claim the insurer denied receiving. The reviews did not suffice absent requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b); mere denial of receipt did not rebut the billing manager's proof of personal mailing. Summary judgment remained denied on one claim supported by a peer review with a factual basis and medical rationale, and on the remaining claims challenged under the Workers' Compensation fee schedule. The matter was remanded for interest, attorney's fees under Insurance Law § 5106 (a), and further proceedings.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 27135
Insurer prevailed
The insurer raised issues concerning the provider's actual operation and control that required discovery before summary judgment. The Appellate Term, Second Department, reversed the order and denied the provider's motion without prejudice to renewal after discovery. Under Mallela and 11 NYCRR 65-3.16 (a) (12), fraudulently licensed providers are ineligible for reimbursement, and that defense is nonwaivable. The insurer's opposition satisfied CPLR 3212 (f) by showing that essential facts might exist but could not yet be stated. The provider did not oppose the insurer's separate discovery motion. That motion was granted to compel interrogatory responses within 30 days of the appellate order and production of the identified deposition witnesses within 30 days after service of those responses.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50673(U)
Insurer prevailed
The provider's appeal from an order compelling depositions became academic after the action was dismissed for noncompliance. The Appellate Term, Second Department, dismissed the appeal. The provider had sought summary judgment, and the insurer had requested a stay under CPLR 3212 (f) to conduct depositions. After denying both motions and directing discovery compliance, the Civil Court ordered the provider and assignor to appear for examinations before trial. Neither appeared, and the provider obtained no stay of enforcement. The Civil Court then dismissed the action, rendering academic the provider's pending appeal from the order compelling those examinations.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 27134
Provider prevailed
The insurer's conclusory fraud allegations and passenger EUO discrepancies failed to establish a founded belief of noncoverage. The Appellate Term, Second Department, affirmed summary judgment for the provider. The prior denial of the insurer's summary judgment motion did not bar consideration of the same evidence in opposition, because defeating summary judgment requires less proof than obtaining it. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer nevertheless had to establish facts or a founded belief that the injuries did not arise from an insured incident. Its investigator's affidavit and exhibits did not substantiate alleged participation in a staged-collision ring. The insured's EUO nonappearance supported no fraud inference because the regulations applicable at the time did not authorize EUOs.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50675(U)
Provider prevailed
A provider need not prove that the insurer's denial was untimely as part of its prima facie case for no-fault summary judgment. The Appellate Term, Second Department, affirmed the order granting the provider's motion. Under Insurance Law § 5106 (a), the prima facie showing generally requires proof of submission of a statutory claim form stating the fact and amount of the loss and that payment was overdue. The insurer opposed the motion solely on the asserted absence of proof that its denial was untimely. Because the insurer raised no substantive defense in admissible form, whether subject to preclusion or otherwise, the timeliness of its denial was academic.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50660(U)
Insurer prevailed
The provider's president failed to establish a business-records foundation, defeating the provider's prima facie summary judgment showing. The Appellate Term, Second Department, affirmed denial of the provider's motion to recover assigned no-fault benefits. The Civil Court had denied the motion based on a factual issue concerning whether the injuries arose from a covered incident. The appellate court instead relied on the insufficient foundation for the documents attached to the moving papers: the president's affidavit 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., that deficiency supported denial of summary judgment.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50663(U)
Insurer prevailed
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, rejecting the providers' contention that the insurer lacked nonhearsay proof of actual mailing. The court relied on the scheduling contractor's employee affidavit and Amaze Med. Supply Inc. v General Assur. Co.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50665(U)
Provider prevailed
The insurer failed to raise a triable IME nonappearance issue because it lacked personal-knowledge proof of mailing and nonappearance. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider summary judgment. The insurer asserted that it timely denied the claims because the assignor missed three scheduled IMEs, but submitted no evidence from anyone with personal knowledge of the scheduling notices' mailing or the missed examinations. Under CPLR 3212 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., that proof was insufficient. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a); a separate concurrence agreed only with the result and expressed disagreement with certain cited propositions.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50666(U)
Insurer prevailed
The provider failed to make a prima facie showing because its officer did not establish the attached documents' admissibility as business records. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion on assigned no-fault claims. The officer's conclusory business-records assertion did not establish personal knowledge of the provider's practices and procedures sufficient to lay an evidentiary foundation, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50670(U)
Insurer prevailed
The provider's officer affidavit did not establish a business-records foundation, defeating its prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion on assigned no-fault claims. The officer's conclusory characterization of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission, following Bath Med. Supply, Inc. v Deerbrook Ins. Co.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50671(U)
Insurer prevailed
The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion on assigned no-fault claims. The officer's conclusory description of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50676(U)
Insurer prevailed
The provider failed to establish a business-records foundation through its employee's affidavit and did not make a prima facie showing. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion on assigned no-fault claims. The employee stated only conclusorily that the attached documents were business records, without establishing personal knowledge of the provider's practices and procedures sufficient to support their admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court found that the motion had properly been denied and expressly reached no other issue.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50677(U)
Insurer prevailed
The provider's officer affidavit failed to establish a business-records foundation, leaving its prima facie summary judgment showing deficient. The Appellate Term, Second Department, affirmed denial of the provider's motion to recover assigned no-fault benefits. The affidavit characterized the attached documents as business records only conclusorily and did not establish personal knowledge of the provider's practices and procedures sufficient to admit them, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50679(U)
Insurer prevailed
The provider's summary judgment motion failed because its officer did not establish a business-records foundation for the supporting documents. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on assigned no-fault claims. The officer's conclusory characterization of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission. The court also dismissed as abandoned the provider's separate appeal from the order denying vacatur of the earlier order and renewal of the summary judgment motion, because the provider raised no issue concerning that ruling.
Appellate Term, Second Department
Mar 28, 2007
2007 NY Slip Op 50682(U)
Provider prevailed
The insurer's investigator affidavit failed to show a founded belief that the claimed injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment on assigned no-fault claims. The insurer failed to pay or deny the claims within the 30-day period prescribed by 11 NYCRR 65-3.8 (c), precluding most defenses. Its contention that the collision furthered an insurance fraud scheme remained available despite the untimely denials. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., however, the investigator's affidavit did not establish the required founded belief and raised no triable coverage issue. The court did not review the provider's unchallenged prima facie showing.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50607(U)
Insurer prevailed
The provider failed to make a prima facie showing because its corporate officer's affidavit did not establish a business-records foundation. The provider supported its summary judgment motion with counsel's affirmation, the officer's affidavit, and attached documents. The officer's conclusory characterization of the documents as business records did not demonstrate 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 summary judgment because the affidavit was insufficient to support admission of the documents.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50612(U)
Insurer prevailed
The provider's renewed default-judgment motion failed for lack of a business-records foundation and proof that its claims were submitted. The Appellate Term, Second Department, affirmed denial of leave to enter judgment against the insurer, which had failed to appear or answer. Under CPLR 3215 (f), a default applicant must supply an affidavit based on personal knowledge establishing the facts constituting the claim, the default, and the amount due. The provider's officer did not establish personal knowledge of its practices and procedures sufficient to admit the attached documents as business records. Even assuming a proper foundation, the provider failed to establish submission of its claim forms to the insurer and thus did not demonstrate prima facie entitlement to judgment.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50602(U)
Insurer prevailed
The provider's summary judgment showing failed for lack of a business-records foundation, and its discovery appeal concerned a default order. The Appellate Term, Second Department, affirmed the order, insofar as reviewed, denying the provider's cross motion for summary judgment. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the attached documents; the insurer raised that deficiency for the first time on appeal. The court dismissed the appeal from the portion compelling the provider to appear through a treating physician for a deposition. Because the provider submitted no written opposition to the discovery motion, that portion was entered on default and was not appealable by the provider under CPLR 5511.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50613(U)
Insurer prevailed
The medical-supply provider failed to establish a prima facie case because its officer's affidavit lacked a business-records foundation. The provider moved for summary judgment on assigned no-fault claims, relying on counsel's affirmation, a corporate officer's affidavit, and attached documents. The insurer challenged their admissibility under CPLR 4518. The officer merely characterized the documents as business records and did not establish sufficient personal knowledge of the provider's office 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 provider's motion.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50601(U)
Provider prevailed
MVAIC's 30-day period to pay or deny begins upon receipt of a claim form, without awaiting its determination of qualified-person status. MVAIC sought summary judgment dismissing the provider's assigned claims because the assignor had not been established as a qualified person under Insurance Law § 5202 (b). Under 11 NYCRR 65-3.8 (c) and Insurance Law § 5221 (b) (3), the payment deadline applies to MVAIC as to other insurers. Following New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., the Appellate Term, Second Department, affirmed denial of MVAIC's motion because it failed to establish timely verification requests and nonreceipt of the requested verification.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50603(U)
Insurer prevailed
The provider's employee affidavits failed to establish a business-records foundation for the claim at issue on appeal. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on that assigned no-fault claim. The insurer had challenged the foundation for the documents attached to the moving papers. The affidavits characterized those documents as business records only conclusorily and did not establish the employee's personal knowledge of the provider's business practices and procedures sufficient to support admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court found no prima facie entitlement to summary judgment and expressly reached no other issue.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50604(U)
Insurer prevailed
The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment. The officer's conclusory characterization of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50605(U)
Insurer prevailed
The provider's summary judgment showing failed for lack of a business-records foundation, an objection first raised on appeal. The Appellate Term, Second Department, reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion on assigned no-fault claims. The insurer challenged the supporting officer affidavit for the first time on appeal. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to support admission of the attached documents as business records. Following Bath Med. Supply, Inc. v Deerbrook Ins. Co. and Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court found no prima facie entitlement to summary judgment.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50608(U)
Insurer prevailed
The provider's officer affidavit failed to establish a business-records foundation, defeating its prima facie summary judgment showing. The Appellate Term, Second Department, affirmed denial of the provider's motion on assigned no-fault claims. The officer's conclusory description of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50611(U)
Insurer prevailed
The provider failed to make a prima facie showing because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion. The officer's conclusory characterization of the attached documents as business records did not establish personal knowledge of the provider's practices and procedures sufficient to support admission, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50615(U)
Insurer prevailed
The provider's summary judgment showing failed because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on assigned no-fault claims. The officer's conclusory assertion that the attached documents were business records did not establish personal knowledge of the provider's practices and procedures sufficient to admit them. The court also dismissed as abandoned the separate appeal from denial of the provider's motion to vacate the prior order and renew its summary judgment motion, because the provider raised no issue concerning that ruling.
Appellate Term, Second Department
Mar 26, 2007
2007 NY Slip Op 50623(U)
Insurer prevailed
The provider's willful failure to produce an employee for a court-ordered deposition supported dismissal of its no-fault action. The Appellate Term, Second Department, affirmed the order, insofar as reviewed, granting the insurer dismissal and denying vacatur and renewal; it dismissed the appeal from denial of reargument as nonappealable. The deposition order had been granted on default, and the provider obtained no stay. Vacatur failed because the provider offered no reasonable excuse for not opposing the motion to compel. Renewal failed under CPLR 2221 (e) (2) and (3) because the provider did not reasonably justify omitting its facts from the prior motion. Following Kihl v Pfeffer, the court held the provider obligated to comply with the unstayed order.
Appellate Term, Second Department
Mar 19, 2007
2007 NY Slip Op 50537(U)
Insurer prevailed
The provider's officer failed to establish personal knowledge sufficient to admit the supporting documents as business records. The provider sought summary judgment on assigned no-fault claims, but its affidavit did not establish familiarity with the provider's practices and procedures necessary to lay a foundation for the attached documents. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, concluded that the provider had not made a prima facie showing of entitlement to summary judgment and affirmed the denial of its motion.
Appellate Term, Second Department
Mar 19, 2007
2007 NY Slip Op 50535(U)
Insurer prevailed
The provider's summary judgment motion was denied because the insurer raised a triable issue concerning coverage for the alleged injury. The Appellate Term, Second Department, affirmed, relying on Central General Hosp. v Chubb Group of Ins. Cos. and the insurer's showing of a fact or founded belief that the injury did not arise from an insured incident.
Appellate Term, Second Department
Mar 19, 2007
2007 NY Slip Op 50536(U)
Insurer prevailed
The provider failed to prove submission of its claims because its officer's affidavit did not establish a business-records foundation. The insurer first raised that defect on appeal from denial of summary judgment based on a factual coverage issue. The Appellate Term, Second Department, found insufficient personal knowledge of the provider's practices and procedures to authenticate the supporting documents. It affirmed denial of the provider's motion for failure to establish a prima facie case and reached no other issue.
Appellate Term, Second Department
Mar 19, 2007
2007 NY Slip Op 50538(U)
Insurer prevailed
The provider failed to establish a business-records foundation because its employee's affidavit did not show the necessary personal knowledge. The affidavit described the documents supporting summary judgment as business records only 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 provider's motion because it failed to establish its prima facie entitlement to judgment.
Appellate Term, Second Department
Mar 16, 2007
2007 NY Slip Op 27193
Insurer prevailed
An insurer may request medical-necessity verification from a prescribing physician if it properly notifies the applicant of outstanding requests. The insurer sought verification concerning an MRI from the referring physician, informed the provider that determination was delayed, and renewed the unanswered request after 30 days with notice to the provider. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.2 (c), 65-3.5 (a) and (c), and 65-3.6 (b), verification need not be directed solely to the benefits applicant. Proper notice identifies the outstanding verification and the party from whom it was requested. The Appellate Term, Second Department, affirmed the grant of the insurer's summary judgment cross motion dismissing the action as premature because verification remained outstanding.
Appellate Term, Second Department
Mar 16, 2007
2007 NY Slip Op 50988(U)
Insurer prevailed
The provider's summary judgment motion was denied despite its objection to verification sought from the referring physician. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, for the reasons stated in the companion appeal Doshi Diagnostic Imaging Servs. v State Farm Insurance, decided the same day, rejecting the provider's contention that verification had to be requested directly from it.
Appellate Term, Second Department
Mar 15, 2007
2007 NY Slip Op 50500(U)
Insurer prevailed
The provider's action was premature because its incomplete assignment left the insurer's verification requests unsatisfied. The insurer requested a proper assignment after receiving the claim with an incomplete form. The provider responded with another incomplete assignment, and the insurer sent a follow-up request. The provider still had not supplied an executed form containing the accident date, assignor's address, and signing date required by the regulatory form. The Appellate Term, Second Department, held that the outstanding verification tolled the insurer's 30-day period to pay or deny, so benefits were not overdue. Rejecting the provider's argument that the requests lacked specificity, the court affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Mar 15, 2007
2007 NY Slip Op 50502(U)
Insurer prevailed
The provider's officer failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records. The affidavit described the attached documents as business records only conclusorily, and the insurer challenged that foundation. Following Fortune Med., P.C. v Allstate Ins. Co. and Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for failure to establish its prima facie entitlement to judgment.
Appellate Term, Second Department
Mar 15, 2007
2007 NY Slip Op 50499(U)
Provider prevailed
The insurer's untimely denials precluded its fraudulent-billing defense because it failed to prove mailing of verification requests. The providers established submission of claims stating the fact and amounts of their losses and overdue payment under Insurance Law § 5106 (a). Although the insurer asserted that verification requests extended its time to deny under 11 NYCRR 65-3.5 and 65-3.8 (a) (1), its proof of mailing was inadequate. Its denials were issued more than 30 days after receipt of the claims, and the claim determination period was not tolled. Applying the preclusion rule to fraudulent billing, the Appellate Term, Second Department, affirmed summary judgment for the providers.
Appellate Term, Second Department
Mar 12, 2007
2007 NY Slip Op 50496(U)
Provider prevailed
The insurer's peer review reports were inadmissible because it did not show that the reviewing doctor placed the stamped signatures on them. The Civil Court denied the provider's summary judgment motion based on a medical necessity issue raised by two peer review reports. The provider challenged their stamped facsimile signatures both below and on appeal. Under CPLR 2106, the reports did not constitute admissible proof absent evidence that the doctor affixed those signatures. The Appellate Term, Second Department, reversed and granted the provider summary judgment on both claims because the insurer supplied no proof of a meritorious defense. The matter was remanded for statutory interest and attorney fees under Insurance Law § 5106 and its implementing regulations.
Appellate Term, Second Department
Mar 12, 2007
2007 NY Slip Op 50497(U)
Insurer prevailed
The provider's deficient business-records foundation defeated summary judgment, and its default barred review of the discovery ruling. The insurer moved to strike the complaint for failure to provide discovery, and the provider cross-moved for summary judgment without opposing the insurer's motion. The Appellate Term, Second Department, affirmed denial of the cross motion because the corporate officer's affidavit did not establish personal knowledge of the provider's practices sufficient to admit the attached records. The court dismissed the appeal from the conditional order requiring a bill of particulars and discovery responses within 45 days. That relief was entered on default, and CPLR 5511 barred an appeal by the defaulting provider.
Appellate Term, Second Department
Mar 8, 2007
2007 NY Slip Op 50494(U)
Insurer prevailed
A provider cannot cure deficient summary judgment proof by first supplying admissible evidence in reply papers. Counsel's affirmation lacked personal knowledge and a foundation under CPLR 4518 for the attached business records; the provider later submitted a corporate officer's affidavit. The Appellate Term, Second Department, affirmed denial of summary judgment because reply proof could not cure the initial defects. The court also dismissed the appeal from the preclusion portion of the insurer's cross motion under CPLR 5511. The provider had not opposed the branch based on noncompliance with a discovery stipulation, so that relief was entered on default. A separate concurrence agreed with the result only while expressing disagreement with certain cited propositions.
Appellate Term, Second Department
Mar 8, 2007
2007 NY Slip Op 50493(U)
Insurer prevailed
The provider failed to establish entitlement to summary judgment because its officer's affidavit lacked a business-records foundation. The affidavit asserted only conclusorily that the documents attached to the motion were the provider's business records. It did not demonstrate the officer's personal knowledge of the provider's practices and procedures sufficient to support their admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment with leave to renew upon proper papers.
Appellate Term, Second Department
Mar 8, 2007
2007 NY Slip Op 50492(U)
Insurer prevailed
The provider failed to establish a business-records foundation and could not appeal discovery relief entered on its default. The insurer moved to strike the complaint for failure to provide discovery, while the provider cross-moved for summary judgment without opposing that motion. The Appellate Term, Second Department, affirmed denial of the cross motion because the provider's officer did not demonstrate personal knowledge of its practices and procedures sufficient to admit the supporting documents. Under CPLR 5511, the court dismissed the appeal from the conditional dismissal requiring a bill of particulars and discovery responses within 45 days. The provider's failure to submit written opposition made that portion of the order a default ruling.
Appellate Term, Second Department
Mar 5, 2007
2007 NY Slip Op 50394(U)
Provider prevailed
The insurer failed to prove mailing of EUO requests or a founded belief that the injuries arose outside a covered incident. Counsel's conclusory assertion, made without personal knowledge, did not establish mailing of the EUO requests. The insurer therefore failed to show tolling of its 30-day denial period and was precluded from raising defenses subject to that period. Its investigator's affidavit also lacked sufficiently particular facts based on personal knowledge or admissible evidence to support the coverage defense under Central General Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed summary judgment for the provider and denial of the insurer's cross motion, leaving the uncontested prima facie determination unreviewed.
Appellate Term, Second Department
Mar 5, 2007
2007 NY Slip Op 50398(U)
Insurer prevailed
The provider's four claims were premature because timely verification requests for the assignor's Social Security number remained unanswered. The insurer's affidavits established knowledge of the preparation and issuance of the requests and detailed an office mailing procedure sufficient to presume mailing of initial and follow-up letters. Following Olympic Chiropractic, P.C. v American Tr. Ins. Co., the Appellate Term, Second Department, recognized the Social Security number as a proper verification subject. It affirmed the order, insofar as appealed from, denying the provider summary judgment and granting the insurer partial summary judgment dismissing those four claims. Summary judgment was also denied on the remaining claim because a factual issue existed as to payment through a prior claim.
Appellate Term, Second Department
Mar 5, 2007
2007 NY Slip Op 50400(U)
Insurer prevailed
The provider failed to prove claim submission because its corporate officer's affidavit lacked a sufficient business-records foundation. The insurer raised the defect for the first time on appeal from a judgment entered on summary judgment for the provider. The Appellate Term, Second Department, found insufficient personal knowledge of the provider's practices and procedures to authenticate the supporting documents. It reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion for failure to establish a prima facie case.
Appellate Term, Second Department
Mar 2, 2007
2007 NY Slip Op 50388(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting business records. The affidavit described the documents attached to the summary judgment motion as business records only conclusorily. It did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit those documents. Following Dan Med., 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
Mar 2, 2007
2007 NY Slip Op 50389(U)
Provider prevailed
The insurer failed to prove mailing of IME requests, the assignors' nonappearances, or a founded belief supporting its coverage defense. Its affidavits showed neither personal knowledge of mailing nor a standard office procedure sufficient to presume mailing, leaving tolling of the 30-day claim determination period unproved. No witness with personal knowledge established nonappearance. The insurer's additional allegations of fraudulent conduct rested on unsworn investigative reports and conclusory assertions insufficient under Central General Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed the judgment entered on summary judgment for the provider. A separate concurrence agreed with the result only while disagreeing with certain propositions in the cited authorities.
Trial court, Second Department
Mar 30, 2007
2007 NY Slip Op 27156
Provider prevailed
A radiology provider need not produce a deposition witness on medical necessity absent proof its personnel have personal knowledge. The provider performed prescribed MRI scans without diagnosing, treating, or examining the assignor. The insurer sought to compel a witness with firsthand knowledge of their justification or dismiss the complaint for nonappearance. The District Court, Nassau County, denied the motion and struck the notice as palpably improper under CPLR 3101 (a) and CPLR 3103 (a), despite the provider's failure to seek timely protection. The notice improperly demanded nonparty witnesses and others' records. The insurer could depose the nonparty prescribing physician and serve a proper notice concerning the provider's claims. The ruling did not preclude the insurer's medical necessity defense.
Trial court, Second Department
Mar 27, 2007
2007 NY Slip Op 50583(U)
Insurer prevailed
A provider cannot challenge the reliability of information its assignors supplied during psychological IMEs requested as verification. At trial, the provider stipulated to its prima facie case, and the insurer presented unrebutted expert testimony that neither assignor sustained a psychological injury from the accident. The Civil Court, Kings County, credited that testimony and dismissed the claims. Under 11 NYCRR 65-1.1 and Central General Hosp. v Chubb Group of Ins. Cos., the absence of an accident-related injury constituted a lack of coverage defense despite untimely denials. Following Home Care Ortho. Med. Supply, Inc. v American Manufacturers Mut. Ins. Co., the court rejected the provider's reliability objections because an assignee acquires no greater rights than its assignor.
Trial court, Second Department
Mar 23, 2007
2007 NY Slip Op 50570(U)
Insurer prevailed
The insurer's demand for a trial de novo was timely because no earlier service of notice of filing of the arbitration award was shown. After mandatory arbitration produced a provider's award and judgment, the District Court, Nassau County, compelled acceptance of the insurer's demand and denied all other undecided matters. Under 22 NYCRR 28.11 (a) and 28.12 (a), mailed notice triggers 35 days to serve and file the demand. The record did not establish service by the commissioner, and the insurer attempted filing within 35 days of the provider's mailing. The court rejected constitutional challenges to the arbitration rules because CPLR 3405 preserves a jury trial de novo and the rules require notice.
Trial court, First Department
Mar 12, 2007
2007 NY Slip Op 27104
Provider prevailed
A provider is entitled to a separate minimum attorney's fee for each overdue proof of claim submitted for the same assignor. The Civil Court, New York County, denied the insurer's motion to revise attorney's fees following partial summary judgment on four claims for one assignor. Construing Insurance Law § 5106 (a) and 11 NYCRR 65-4.6, the court awarded a minimum fee of $60 for each claim. It distinguished proofs of claim from bills and causes of action and relied on the statute's prompt-payment purpose and Mid-Island Hosp. v Empire Mut. Ins. Co. The court rejected the Insurance Department's informal opinion favoring aggregation as unreasonable and nonbinding. The insurer also failed to supply the proposed judgment it sought to revise.
Trial court, Second Department
Mar 7, 2007
2007 NY Slip Op 27095
Split result
The provider could not recommence under CPLR 205 (a) after dismissal for failing to comply with stipulated discovery obligations. The provider filed a second action seeking payment for the same services after the first action was dismissed following oral argument on the insurer's discovery motion. The Civil Court, Kings County, granted the insurer's summary judgment motion dismissing the complaint in its entirety but declined to impose sanctions. Following Andrea v Arnone, the court treated discovery noncompliance as neglect to prosecute, which falls outside CPLR 205 (a)'s savings provision. The provider's objections that discovery was burdensome should have been raised before dismissal; reargument or an appeal had also been available.
Trial court, First Department
Mar 2, 2007
2007 NY Slip Op 50467(U)
Split result
The insurer's IME cut-off defense failed because notice was unproved and its denials lacked a factual basis and medical rationale. The Civil Court, New York County, granted the provider summary judgment on three bills with statutory interest and attorney fees. Under 11 NYCRR 65-3.8 (c), the provider established overdue claims except for a fourth bill, whose payment status remained unclear. For two claims, the insurer failed to prove advance notice of the cut-off; for another, the stated cut-off followed treatment. Following Contempo Med. Care, P.C. v Travelers Indem. Ins. Co., the denials also failed to preserve medical necessity because they neither summarized the supporting rationale, attached IME reports, nor indicated separate delivery. Summary judgment was not awarded on the fourth bill.
