Appellate Division, Second Department
Apr 24, 2007
2007 NY Slip Op 03636
Insurer prevailed
An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form. Under 11 NYCRR 65-3.8 (b) (4), an insurer relying on a medical examination or peer review must release the report upon written request; neither that provision nor the prescribed form under 11 NYCRR 65-3.4 (c) (11) requires the rationale in the denial itself. The provider established mailing and receipt of its bills and overdue payment, but the insurer raised a factual issue concerning lack of medical justification. The Appellate Division, Second Department, reversed the Appellate Term's order, insofar as appealed from, and affirmed the appealed portion of the Civil Court, Kings County, order denying the provider summary judgment on the claim.
Appellate Division, Second Department
Apr 24, 2007
2007 NY Slip Op 03671
Insurer prevailed
An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report. The hospital established a prima facie claim, but the insurer raised factual issues through timely verification requests and a timely denial based on a peer review attributing treatment to a preexisting condition unrelated to a covered accident. Under 11 NYCRR 65-3.8 (b) (4), the report must be released upon written request; the regulation does not require its rationale in the prescribed denial form under 11 NYCRR 65-3.4 (c) (11). The Appellate Division, Second Department, reversed and denied the hospital summary judgment on the second cause of action, while declining to award the insurer summary judgment by searching the record.
Appellate Division, Second Department
Apr 24, 2007
2007 NY Slip Op 03635
Insurer prevailed
An insurer need not include a medical rationale in a denial form based on a medical examination or peer review report. The Appellate Division, Second Department, reversed the Appellate Term and Civil Court orders and denied the provider summary judgment because its prima facie showing was insufficient. Alternatively, the insurer raised a factual issue, and its denial forms were not insufficient for omitting the medical rationale. The court relied on A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., decided the same day. Under 11 NYCRR 65-3.8 (b) (4), the insurer must release the report upon written request; 11 NYCRR 65-3.4 (c) (11) does not require the rationale in the form. Remaining contentions were not reached.
Appellate Division, Second Department
Apr 10, 2007
2007 NY Slip Op 03146
Split result
An insurer must show prejudice from late UM notice under a SUM endorsement when accident notice was timely and no-fault benefits were sought. Applying Rekemeyer v State Farm Mut. Auto. Ins. Co., the Appellate Division, Second Department, affirmed reargument and rejected late notice as a basis to stay arbitration because the petitioning insurer claimed no prejudice. The rule applied equally to uninsured and underinsured claims. However, the police report's insurance code and the other vehicle's insurer's noncooperation disclaimer raised a factual issue concerning that disclaimer's validity. The court modified the order to add that insurer and the vehicle's owner and operator as respondents, and remitted for an evidentiary hearing and a new determination of the request for a permanent stay under CPLR article 75.
Appellate Term, Second Department
Apr 27, 2007
2007 NY Slip Op 50890(U)
Split result
The provider lacked a records foundation, and the insurer failed to prove cancellation mailing, defeating both summary judgment motions. The provider's corporate officer did not establish personal knowledge sufficient to admit the attached documents as business records. The insurer, which alleged cancellation approximately one month before the accident, supplied no sufficient affidavit from someone with personal knowledge that the cancellation notice was mailed. Citing Vehicle and Traffic Law § 313, the court required mailing proof despite disagreement over the governing statute. The Appellate Term, Second Department, affirmed denial of the provider's motion and the reargument order denying the insurer's cross motion and vacating dismissal. It dismissed the appeal from the superseded grant of the insurer's cross motion.
Appellate Term, Second Department
Apr 27, 2007
2007 NY Slip Op 50892(U)
Insurer prevailed
The insurer's sworn investigator affidavit raised a triable staged-accident coverage issue despite containing hearsay allegations. Only the provider's third cause of action was at issue on appeal from partial summary judgment. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the majority found a sufficient founded belief that the alleged injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed the judgment, vacated the order's grant of partial summary judgment on that cause of action and denied that branch of the provider's motion. It did not review the uncontested prima facie showing; a dissent found the identity-theft allegations unsupported by admissible evidence and would have affirmed.
Appellate Term, Second Department
Apr 26, 2007
2007 NY Slip Op 50874(U)
Insurer prevailed
The insurer's use of physical-therapy rates for acupuncture claims was upheld because the provider did not dispute similarity of the procedures. The licensed acupuncturist sought the unpaid balance after the insurer reduced reimbursement for services lacking an applicable fee schedule. Under Insurance Law § 5108 and 11 NYCRR 68.5 (b), charges for an unscheduled provider type are the prevailing geographic fee, subject to insurer review for consistency with scheduled charges for similar procedures. The provider did not rebut the insurer's contention below that physical therapy was sufficiently similar. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion, sustaining the reduced reimbursement.
Appellate Term, Second Department
Apr 26, 2007
2007 NY Slip Op 27165
Provider prevailed
The insurer failed to submit admissible proof that the assignor missed the IMEs, entitling the provider to summary judgment. The Appellate Term, Second Department, reversed the order, granted the provider's motion, denied the insurer's cross motion to dismiss the complaint and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the majority found no admissible proof of nonappearance sufficient to raise a triable issue or support the insurer's motion. It did not review the unchallenged prima facie determination. A partial dissent would have denied both motions, finding sufficient nonappearance evidence and an unpreserved objection to personal knowledge.
Appellate Term, Second Department
Apr 26, 2007
2007 NY Slip Op 50876(U)
Insurer prevailed
The provider failed to make a prima facie showing because its officer's conclusory affidavit did not authenticate the business records. The provider sought summary judgment for assigned first-party no-fault benefits using counsel's affirmation, a corporate officer's affidavit and attached documents. The insurer objected that the affidavit failed to demonstrate personal knowledge. The Appellate Term, Second Department, affirmed denial of the motion because the officer did not establish knowledge of the provider's practices and procedures sufficient to supply a foundation for admitting the documents as business records.
Appellate Term, Second Department
Apr 25, 2007
2007 NY Slip Op 27159
Split result
The provider's late cross motion and opposition were improperly considered because the insurer lacked an opportunity to respond. The cross motion was mailed only three days before the return date, without the additional five days required by CPLR 2215 and CPLR 2103 (b) (2). The provider offered no excuse for its late opposition. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's cross motion, and granted the insurer partial summary judgment dismissing two claims based on unrebutted peer review proof of lack of medical necessity. Summary judgment was denied on the remaining claim because the insurer failed to establish when its verification request was mailed and thus failed to prove tolling and a timely denial. Further proceedings were directed.
Appellate Term, Second Department
Apr 24, 2007
2007 NY Slip Op 27164
Insurer prevailed
The insurer properly reimbursed the licensed acupuncturist at chiropractor rates because similar services and licensing requirements supported them. The Appellate Term, Second Department, reversed the judgment, vacated the provider's summary judgment award, denied its motion, and searched the record to grant the insurer summary judgment dismissing the action. Under Insurance Law § 5108 and 11 NYCRR 68.5 (b), prevailing regional fees for unscheduled services were subject to comparison with scheduled fees for similar procedures. The provider relied on its acupuncturist's training but did not claim the services differed from scheduled acupuncture services. The insurer had fully paid at chiropractor rates. Constitutional arguments were unpreserved; a partial concurrence and dissent would have denied the provider's motion but remanded for trial on the specific services rendered.
Appellate Term, Second Department
Apr 19, 2007
2007 NY Slip Op 50859(U)
Insurer prevailed
The provider's employee failed to establish personal knowledge sufficient to admit the motion's supporting documents as business records. The provider sought summary judgment on assigned no-fault claims using counsel's affirmation, an employee's affidavit, and attached documents. The employee's conclusory description of the documents as business records did not demonstrate knowledge of the provider's practices and procedures necessary to lay a proper foundation. 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 for failure to establish prima facie entitlement to summary judgment.
Appellate Term, Second Department
Apr 19, 2007
2007 NY Slip Op 50860(U)
Insurer prevailed
The provider's renewal motion failed for lack of justification for omitted facts and lack of a material change in law. After summary judgment was denied because its officer's affidavit did not sufficiently establish personal knowledge, the provider sought renewal with a more detailed affidavit. Under CPLR 2221 (e) (2) and (3), renewal required new facts or a change in law affecting the determination, together with reasonable justification for previously omitting the facts. The provider supplied no such justification, and its cited cases neither resolved the affidavit's sufficiency nor changed decisional law. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying renewal.
Appellate Term, Second Department
Apr 3, 2007
2007 NY Slip Op 50695(U)
Insurer prevailed
The provider's summary judgment proof failed because its corporate officer did not establish a foundation for the attached business records. A medical-supply provider sought payment of assigned no-fault benefits, submitting counsel's affirmation, a corporate officer's affidavit, and supporting documents. The affidavit described the documents as business records only conclusorily and failed to 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 motion because the provider had not made a prima facie showing of entitlement to summary judgment.
Appellate Term, Second Department
Apr 3, 2007
2007 NY Slip Op 50692(U)
Split result
The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation. The Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment, and denied the provider's motion. The affidavit did not establish the officer's personal knowledge of the provider's practices and procedures sufficient to admit the supporting documents. The court nevertheless upheld denial of the insurer's cross motion to dismiss for lack of subject matter jurisdiction. Although the complaint grouped claims assigned by three different assignors under one cause of action, each claim was separate and within the Civil Court's $25,000 monetary limit under CCA 202 and 211.
Appellate Term, Second Department
Apr 3, 2007
2007 NY Slip Op 50693(U)
Split result
The provider failed to establish a business-records foundation for its claim forms and therefore failed to make a prima facie showing. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion. The employee's conclusory assertion that the attached documents were business records did not establish 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 insurer's request for summary judgment upon a search of the record was also rejected because, among other things, the record contained no proof that its denials were timely issued.
Appellate Term, Second Department
Apr 2, 2007
2007 NY Slip Op 50687(U)
Provider prevailed
The insurer failed to raise a triable issue on its EUO nonappearance defense because it did not prove mailing of the scheduling letters. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider summary judgment. The insurer's administrative assistant stated that the requests were forwarded to the assignor, but did not attest to actual mailing or describe an office practice designed to ensure proper addressing and mailing. The affidavit therefore created no presumption of mailing. The court did not review the provider's prima facie showing because the insurer had not challenged it below or on appeal. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Apr 2, 2007
2007 NY Slip Op 50685(U)
Split result
The provider's claim forms lacked a sufficient business-records foundation, so its prima facie summary judgment showing failed. The Appellate Term, Second Department, reversed the order granting the provider's motion and denied summary judgment. The employee's conclusory statement that the attached documents were 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. The insurer also requested summary judgment upon a search of the record. That request was rejected because, among other deficiencies, the record contained no proof that the insurer's denials were timely issued.
Appellate Term, Second Department
Apr 2, 2007
2007 NY Slip Op 50686(U)
Insurer prevailed
The provider's employee 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 to recover assigned no-fault benefits. The employee described the attached documents as business records only conclusorily and did not establish personal knowledge of the provider's business practices and procedures. The Civil Court had also identified the affidavit's failure to state job duties or the basis of knowledge of billing procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the appellate court found the evidentiary foundation insufficient and expressly reached no other issue.
Appellate Term, Second Department
Apr 2, 2007
2007 NY Slip Op 50688(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 the provider's summary judgment motion. 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 support admission, following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Trial court, Second Department
Apr 20, 2007
2007 NY Slip Op 50827(U)
Provider prevailed
MVAIC failed to establish either noncompliance with accident-reporting requirements or expiration of the limitations period. The District Court, Nassau County, denied dismissal under CPLR 3211 (a) (7) and CPLR 214 (2). Noncompliance with Insurance Law § 5208 (a) (2) (A) was a coverage defense for MVAIC to prove, not an element of the provider's prima facie case. An unsworn investigation report and hearsay affidavit did not conclusively establish noncompliance with police-reporting requirements; credibility issues required a hearing. The coverage defense survived MVAIC's invalid denial. The three-year limitations period began when benefits became overdue 30 days after receipt under 11 NYCRR 65-3.8 (c), but neither party established receipt of the bills, preventing a determination of accrual.
Trial court, Second Department
Apr 11, 2007
2007 NY Slip Op 50816(U)
Insurer prevailed
The insurer's retroactive policy cancellation was valid under Florida law, and the resulting lack of coverage defeated the no-fault claim. An injured passenger sought benefits under a policy issued in Florida for a Florida-registered vehicle. The insurer discovered that the policyholder had misrepresented residence and garaging in Florida. Applying the grouping-of-contacts inquiry, the Supreme Court, Queens County, selected Florida law, which permitted retroactive cancellation, rather than New York's contrary rule under Vehicle and Traffic Law § 313. The policy was void from inception, so denial timeliness was irrelevant under Central General Hospital v Chubb Group of Insurance Cos. The court denied the claimant's motion, granted the insurer's summary judgment cross motion and declared no coverage obligation.
Trial court, Second Department
Apr 6, 2007
2007 NY Slip Op 50747(U)
Provider prevailed
An assignor may not unilaterally revoke an assignment after the covered services have been rendered. The Civil Court, Kings County, granted the provider's summary judgment motion and denied the insurer's cross motion. The provider established submission and receipt of its claims through its billing manager's mailing affidavit and the insurer's denial forms. Under 11 NYCRR 65-3.11 (d), revocation for future services requires written notification to the insurer that the assignee has been notified. The assignor's letter requesting withdrawal of all claims could not revoke the assignment for services already rendered, and the insurer offered no proof that the provider had been notified of revocation for later services. The provider received judgment with interest and attorney's fees.
