Appellate Division, Second Department
May 22, 2007
2007 NY Slip Op 04483
Provider prevailed
The hospital's mailing evidence established receipt of requested verification, defeating the insurer's claim that verification remained outstanding. For the second and third causes of action, certified mail and signed return receipts identifying the medical records created a receipt presumption that the insurer's denial did not rebut. For the fourth, matching notations, dates, and mailing numbers on the cover letter, certified mail receipt, and postal tracking printout established mailing and delivery despite the absence of a signed return receipt card. Payment was overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), (2). The Appellate Division, Second Department, reversed, granted the hospital summary judgment on all three causes, and denied the insurer's cross motion; the third sought only attorney fees and statutory interest.
Appellate Division, Second Department
May 22, 2007
2007 NY Slip Op 04484
Provider prevailed
The insurer waived claim-form and assignment defenses by failing to object timely to the forms or seek assignment verification. The hospital established entitlement to summary judgment on the first cause of action through billing forms, a certified mail receipt, a signed return receipt referencing the assignor and forms, and its biller's affidavit of nonpayment and failure to deny. This proof showed receipt and no response within the 30-day period under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. The insurer raised no factual issue, and its waived defenses included the hospital's purported lack of standing. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the hospital's cross motion on that cause of action.
Appellate Division, Second Department
May 15, 2007
2007 NY Slip Op 04285
Insurer prevailed
The insurer's motion to vacate its default judgment under CPLR 317 was granted, and the hospital's contempt motion was denied. The Appellate Division, Second Department, affirmed, finding vacatur a provident exercise of discretion and the denial of contempt proper. The contempt motion concerned failure to respond to an information subpoena; the decision supplied no further reasoning for either ruling.
Appellate Division, Second Department
May 8, 2007
2007 NY Slip Op 04117
An insurer's loss-transfer arbitration under Insurance Law § 5105 is subject to a three-year limitations period from accrual of its claim. After paying no-fault benefits to its insured, the no-fault insurer sought reimbursement through arbitration from the insurer of a municipal vehicle involved in the accident. The municipality petitioned to stay arbitration, and Supreme Court applied the one-year-and-90-day period in General Municipal Law § 50-i. The Appellate Division, Second Department, reversed and denied the petition. Under CPLR 214 (2), the three-year period governed, and arbitration initiated approximately two years after the accident was timely.
Appellate Term, First Department
May 30, 2007
2007 NY Slip Op 51104(U)
An insurer's medical expert need not be the peer reviewer if cross-examination is available and testimony stays within the stated denial basis. The provider obtained preclusion of the insurer's expert and a judgment because the witness had not prepared the peer review supporting the denial. Following Home Care Orthos. Med. Supply v American Mfrs. Mut. Ins. Co., the Appellate Term, First Department, held that the motion should have been denied because the witness would face full cross-examination and could testify only to the original report's basis for finding no medical necessity. The order was reversed and a new trial ordered.
Appellate Term, First Department
May 30, 2007
2007 NY Slip Op 51103(U)
Provider prevailed
The insurer failed to establish timely EUO requests because it lacked admissible proof of when it received the claims. The insurer moved to dismiss for the alleged provider president's failure to appear for scheduled EUOs. Even assuming the letters were valid requests, the insurer did not establish compliance with the verification deadlines in 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Because EUO noncompliance was the motion's sole ground, there was no basis to direct a deposition. The Appellate Term, First Department, modified the order by vacating the deposition directive and otherwise affirmed, giving the provider relief on its limited appeal.
Appellate Term, Second Department
May 25, 2007
2007 NY Slip Op 51080(U)
Insurer prevailed
The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation. Civil Court denied the motion in this assigned no-fault benefits action after finding a factual issue concerning an allegedly improper billing code. The Appellate Term, Second Department, affirmed on the alternative ground raised by the insurer. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the documents attached to the moving papers as business records. The provider consequently failed to make a prima facie showing of entitlement to summary judgment.
Appellate Term, Second Department
May 25, 2007
2007 NY Slip Op 51081(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not lay a business-records foundation. In an action for assigned first-party no-fault benefits, Civil Court denied the provider's summary judgment motion based on a triable issue raised by the insurer. The Appellate Term, Second Department, affirmed on a different ground urged by the insurer: 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. The provider therefore failed to demonstrate entitlement to summary judgment.
Appellate Term, Second Department
May 24, 2007
2007 NY Slip Op 51074(U)
Insurer prevailed
A defaulting provider may not appeal an order granting an insurer's unopposed severance motion. In an action to recover assigned first-party no-fault benefits, the provider appealed the order severing its claims. The provider had submitted no opposition to the insurer's motion, so the order was entered on default. Applying CPLR 5511, the Appellate Term, Second Department, dismissed the provider's appeal because no appeal lies from a default order at the instance of the defaulting party.
Appellate Term, Second Department
May 24, 2007
2007 NY Slip Op 51072(U)
Provider prevailed
The insurer failed to raise a triable coverage issue because its accident reports and other documents lacked admissible support. The sole issue on appeal from summary judgment for the provider was whether the insurer showed a founded belief that the alleged injuries did not arise from a covered incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The majority found the documents unsworn and unsupported by an affidavit establishing personal knowledge of their facts or preparation. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment; a dissent found the investigator's detailed affidavit and similarities among multiple accidents sufficient to raise a coverage issue.
Appellate Term, First Department
May 23, 2007
2007 NY Slip Op 51044(U)
Insurer prevailed
An insurer need not set forth the medical rationale for a peer-review denial in the prescribed denial form. The provider made a prima facie showing of entitlement to summary judgment, but the insurer raised a triable medical-necessity issue through a timely denial based on a peer review report. Following A.B. Med. Servs., PLLC v Geico Cas. Ins. Co., the court explained that 11 NYCRR 65-3.8 (b) (4) requires release of the report upon written request, while 11 NYCRR 65-3.4 (c) (11) does not require the denial form to contain that rationale. The Appellate Term, First Department, reversed, denied the provider's motion and remanded for further proceedings.
Appellate Term, Second Department
May 15, 2007
2007 NY Slip Op 50997(U)
Insurer prevailed
The insurer's answer supplied a basis to sever five assignors' claims arising from separate accidents without a prejudice affidavit. The provider joined claims allegedly arising from five accidents, and the insurer sought severance under CPLR 603. The Appellate Term, Second Department, reversed the denial and granted separate actions for each assignor. The particular claims were likely to present few common factual or legal issues, even if the policies were identical. The answer disputed the necessity and reasonableness of each assignor's services and the sufficiency of the claim forms. Those pleaded disputes alone placed the basis for severance at issue; an affidavit from someone with personal knowledge of prejudice was unnecessary.
Appellate Term, Second Department
May 14, 2007
2007 NY Slip Op 50994(U)
Insurer prevailed
The provider's summary judgment motion was denied because the insurer's investigator affidavit raised a triable coverage issue. The Appellate Term, Second Department, reversed the order granting the provider's motion. It found the affidavit sufficient to demonstrate a founded belief that the alleged injuries did not arise from an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos.
Appellate Term, First Department
May 8, 2007
2007 NY Slip Op 50958(U)
Provider prevailed
The providers established overdue claims, and MVAIC failed to pay or deny within 30 days after receiving the requested verification. The providers proved that prescribed billing forms had been mailed and received. MVAIC raised no triable issue in opposition to their cross motion for summary judgment. Under 11 NYCRR 65.15 (g) (1) (i) and 11 NYCRR 65.15 (g) (3), the 30-day requirement applied to MVAIC and did not depend on its determination that the injured person was qualified. The Appellate Term, First Department, affirmed the judgment for the providers and dismissed the appeal from the summary judgment order as subsumed in the judgment appeal.
Appellate Term, Second Department
May 7, 2007
2007 NY Slip Op 50939(U)
Insurer prevailed
The provider failed to establish a prima facie case because its officer's affidavit lacked a sufficient business-records foundation. Civil Court denied summary judgment because the moving papers did not allege personal knowledge of mailing the claims. On appeal, the insurer challenged the foundation for the documents annexed to the motion. The Appellate Term, Second Department, agreed that the corporate officer's affidavit failed to establish personal knowledge of the provider's practices and procedures sufficient to admit those documents as business records. It affirmed the denial of the provider's motion on that basis.
Appellate Term, First Department
May 4, 2007
2007 NY Slip Op 27174
Insurer prevailed
The provider failed to justify its three-and-a-half-month delay in submitting a claim to MVAIC after learning there was no insurance coverage. The Appellate Term, First Department, affirmed summary judgment for MVAIC. Under Insurance Law § 5221 (b) (3), MVAIC had an insurer's rights and obligations, including the 45-day claim-submission requirement in 11 NYCRR 65-1.1. MVAIC received the claim eight months after treatment and offered an opportunity to provide reasonable justification under 11 NYCRR 65-3.3 (e). Even assuming the provider's accidental submission to another insurer initially justified delay, it did not explain the interval between counsel's advice that no policy existed and its submission to MVAIC.
Appellate Term, First Department
May 4, 2007
2007 NY Slip Op 27173
Provider prevailed
The insurer's verified interrogatory answers established receipt and partial payment of the claims and defeated its proof-of-billing objection. The Appellate Term, First Department, affirmed the order, sustaining judgment for the provider. The insurer's verified answers were admissible party admissions, and it could not argue that the provider failed to prove mailing, receipt, or overdue claims. The court declined to follow Empire State Psychological Servs., P.C. v Travelers Ins. Co. insofar as it supported a contrary conclusion. The insurer also waived its objection to proof of assignment by failing to request verification of the assignment. Because it asserted no other defenses, judgment for the provider was proper.
Trial court, Second Department
May 30, 2007
2007 NY Slip Op 51127(U)
Insurer prevailed
Interest on the provider's claim accrued from filing the summons, despite an untimely or improper denial. After summary judgment for the provider, the insurer sought clarification of the interest calculation and asserted that its payments satisfied the judgment. Following East Acupuncture, P.C. v Allstate Ins. Co., the Civil Court, Kings County, applied 11 NYCRR 65-3.9 (c) to the assignee and rejected accrual beginning 30 days after receipt of the bills. It granted the insurer's application, vacated the marshal's levy and sale notice, and found the underlying order satisfied.
Trial court, Second Department
May 25, 2007
2007 NY Slip Op 51154(U)
Split result
An insurer obtained preliminary injunctions against acupuncture collection suits based on evidence of provider licensing defects. The Supreme Court, Queens County, enjoined pending and future collection actions while the insurer pursued declaratory relief, fraud and unjust enrichment claims. Evidence supported likely success on some claims; numerous suits and possible inconsistent outcomes supported irreparable injury and favorable equities. CPLR 2201 did not authorize stays of actions in other courts. The declaratory action could resolve common eligibility issues under 11 NYCRR 65-3.16 (a) (12). The court partly granted the providers' dismissal cross motion, limiting recoupment to payments made on or after April 4, 2002, under Mallela, and dismissing punitive damages. It otherwise denied dismissal, including the limitations defense under CPLR 213 (1) and (8).
Trial court, First Department
May 23, 2007
2007 NY Slip Op 51061(U)
Insurer prevailed
The provider failed to prove its no-fault claim at trial by relying solely on an unanswered notice to admit addressing material issues. Neither party presented witnesses, and the provider offered no bills or other supporting documents. The Civil Court, Bronx County, dismissed the action because the notice sought admissions concerning matters central to the claim, including receipt of bills, coverage and compliance with notice requirements. Under CPLR 3123, a notice to admit may resolve undisputed facts but may not elicit admissions of fundamental issues or ultimate facts. The court distinguished sworn interrogatory responses admitting receipt and partial payment, and found no admissible proof that payment remained due on a timely submitted claim.
Trial court, Second Department
May 22, 2007
2007 NY Slip Op 27211
Provider prevailed
The $850 attorney-fee cap under 11 NYCRR 65-4.6 (e) applies to each cause of action, even when claims involve one assignor. The provider combined claims for different services arising from one accident. The insurer argued that the fee cap applied to the entire action, relying on an Insurance Department opinion letter. The District Court, Nassau County, followed Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., treating each denied claim as a separate dispute and reasoning that a single cap would encourage multiple actions. It clarified its prior order to apply the cap per cause of action, denied the insurer's contrary motion, and permitted judgment for unpaid amounts.
Trial court, First Department
May 21, 2007
2007 NY Slip Op 51034(U)
Provider prevailed
The insurer failed to establish grounds to disturb summary judgment or obtain discovery concerning alleged fraudulent incorporation. The Civil Court, New York County, granted leave to reargue under CPLR 2221 (d) (2) but adhered to judgment for the providers, and denied renewal under CPLR 2221 (e) (2) and (e) (3). A physician's later license revocation did not retroactively invalidate lawfully issued corporate shares, and prior misconduct did not prove misconduct when the services were rendered. Website omissions did not establish that a provider operating as a general partnership was fraudulently incorporated. The insurer showed no good cause for eligibility discovery under 11 NYCRR 65-3.16 (a) (12). The office manager's personal knowledge of record creation and mailing supplied a sufficient business-records foundation and established the providers' prima facie case.
Trial court, Second Department
May 14, 2007
2007 NY Slip Op 27192
Split result
A fee schedule dispute remained triable because the insurer established neither a proper scheduled fee nor a comparable fee for the goods. The provider moved for summary judgment on two assigned no-fault claims, and the insurer cross-moved. The Civil Court, Queens County, granted both motions only to establish the provider's prima facie case and the existence of triable fee issues, otherwise denying relief. The insurer's proper, timely denials preserved its fee schedule defense. Charges were limited by Insurance Law § 5108 (a) and 11 NYCRR 68.0 (f), but the insurer's proof did not establish the allowable reimbursement. Its unanswered verification request did not warrant judgment because it offered no legal argument against waiver by its denial. The court preserved the established issues under CPLR 3212 (e) and (g).
Trial court, Second Department
May 9, 2007
2007 NY Slip Op 27258
Provider prevailed
Admissions under CPLR 3123 may collectively establish a provider's prima facie case when the individual requests are proper. The District Court, Suffolk County, awarded the provider judgment on the second, fourth and sixth causes of action and denied the insurer's directed-verdict motion after trial. The provider called no witnesses, relying on documents and a notice to admit answered late. The insurer failed to rebut the affidavit's presumption of mailing, and its response was untimely under CPLR 3123 and CPLR 2103 (b) (2). It also failed to seek a protective order under CPLR 3103. The requests were not patently improper merely because their combined admissions could establish the claim. The insurer offered no evidence rebutting the prima facie showing.
Trial court, Second Department
May 1, 2007
2007 NY Slip Op 50898(U)
Insurer prevailed
MVAIC established a lack of coverage because the assignor failed to file a notice of intention within the required 180 days. The District Court, Nassau County, granted MVAIC summary judgment dismissing the provider's complaint. Insurance Law § 5208 (a) (1) required timely filing as a condition precedent, and Insurance Law § 5221 (b) (2) distinguished qualified-person status from covered-person status. MVAIC's file and computer-record searches established nonfiling. The provider's counsel offered no personal-knowledge evidence under CPLR 3212 (b) and no proof of reasonable reliance on MVAIC's alleged disqualification letter to support equitable estoppel. MVAIC's failure to deny the bills did not waive its lack-of-coverage defense.
