Appellate Division, Second Department
Jun 12, 2007
2007 NY Slip Op 05220
Provider prevailed
An insurer's untimely denial precludes a defense that billed medical supplies were never delivered when the defense does not concern coverage. The Appellate Division, Second Department, affirmed the Appellate Term's order granting the provider summary judgment. The insurer denied the claims long after the 30-day period prescribed by Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (g) (3), relying on the assignor's statement that no supplies were received. The alleged nondelivery did not affect whether the policy covered the supplies in the first instance. Unlike a staged collision, the actual accident and resulting injuries triggered coverage. The lack-of-coverage exception to preclusion therefore did not apply, and the statement's admissibility became academic.
Appellate Division, Fourth Department
Jun 8, 2007
2007 NY Slip Op 04895
A SUM endorsement may require serious injury under Insurance Law § 5102 (d) as a condition of recovering noneconomic damages. The Appellate Division, Fourth Department, upheld the exclusion prescribed by 11 NYCRR 60-2.3 (f), finding it authorized under Insurance Law § 301 and consistent with Insurance Law § 3420 (f) (2), contrary to Raffellini v State Farm Mut. Auto. Ins. Co. Serious injury presented jury questions, making a directed verdict improper. The court reversed the judgment and ordered a new trial on serious injury and damages. Absent evidence of bad faith, recovery was capped at $225,000 after the tortfeasor-payment offset. It also found the exclusion of expert testimony concerning certified medical records erroneous under CPLR 4518 (c); two justices dissented in part, favoring reduction of the judgment.
Appellate Division, Fourth Department
Jun 8, 2007
2007 NY Slip Op 05091
Insurer prevailed
The insurer's payment of no-fault benefits did not establish waiver of the notice requirements governing the injured claimant's UM claim. The claimant notified the insurer of the accident or claim after a seven-month delay, and the insurer disclaimed UM coverage while paying no-fault benefits. The Appellate Division, Fourth Department, affirmed the order granting the insurer's CPLR article 75 petition permanently staying UM arbitration. The record contained no evidence of intentional relinquishment of the notice requirements. Because neither the accident nor the claim was timely reported, the insurer was not required to show prejudice; the exceptions discussed in Rekemeyer and Matter of Brandon did not apply. The court did not reach the insurer's remaining contention.
Appellate Term, Second Department
Jun 29, 2007
2007 NY Slip Op 52124(U)
Insurer prevailed
The provider offered no admissible reasonable justification for submitting its claim to MVAIC more than 130 days after treatment. Under Insurance Law § 5221 (b) (3) and 11 NYCRR 65-1.1, the provider was required to submit its claim within 45 days after services were rendered. MVAIC denied the claim for late submission and advised that reasonable justification could excuse the delay, as required by 11 NYCRR 65-3.3 (e). Although the Civil Court found a factual issue concerning justification, the provider's opposition supplied no admissible supporting evidence. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's cross motion for summary judgment.
Appellate Term, Second Department
Jun 29, 2007
2007 NY Slip Op 51304(U)
Insurer prevailed
The provider's owner failed to establish the personal knowledge needed to admit the documents supporting summary judgment. The owner conclusorily described the attachments as business records but did not set out job duties or the basis for knowledge of the provider's billing procedures. The affidavit therefore failed to lay a foundation showing personal knowledge of the provider's practices and procedures. The Appellate Term, Second Department, affirmed the denial of the provider's motion for assigned first-party no-fault benefits because the provider did not make a prima facie showing of entitlement to summary judgment, and reached no other issue.
Appellate Term, Second Department
Jun 29, 2007
2007 NY Slip Op 51312(U)
Insurer prevailed
The provider's renewal motion failed because it offered no reasonable justification for omitted facts and showed no change in law. After summary judgment was denied for insufficient affidavit proof, the provider sought renewal with a more detailed officer's affidavit. Under CPLR 2221 (e) (2) and (3), it needed new facts or a change in law affecting the determination and justification for previously omitted facts. 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. A claim that existing law was overlooked belonged in reargument under CPLR 2221 (d), but the motion was untimely to that extent.
Appellate Term, Second Department
Jun 25, 2007
2007 NY Slip Op 51281(U)
Split result
The insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident. EUO requests did not toll the 30-day determination period under the regulations then applicable, which did not authorize EUOs. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., implausible EUO accounts and related guilty pleas supported a founded belief of noncoverage sufficient for trial. Separately, the provider's deficient mailing proof was cured only for claims the insurer acknowledged receiving. The Appellate Term, Second Department, modified the order to deny both provider summary judgment motions and otherwise affirmed, leaving the insurer's cross motion denied. A separate concurrence agreed with the disposition but questioned certain cited legal propositions.
Appellate Term, Second Department
Jun 25, 2007
2007 NY Slip Op 51286(U)
Insurer prevailed
CPLR 7511 (e) requires confirmation of an award when a petition to vacate the master arbitrator's determination is denied. The provider challenged an award upholding the denial of its first-party no-fault claims. The Appellate Term, Second Department, reviewed the record and found a rational basis for the master arbitrator's determination, sustaining denial of vacatur. It modified the judgment to add confirmation of the award and otherwise affirmed. The court also noted that the record established timely filing of the petition under CPLR 7511 (a).
Appellate Term, Second Department
Jun 15, 2007
2007 NY Slip Op 51217(U)
Insurer prevailed
The insurer raised factual issues concerning a staged collision and the provider's eligibility based on alleged fraudulent incorporation. The provider's attached NF-10 established claim submission and receipt, and denial 10 days after receipt did not defeat its prima facie showing under Insurance Law § 5106 (a). The investigator's affidavit supported a founded belief that the injuries did not arise from an insured incident under Central Gen. Hosp. v Chubb Group of Ins. Cos. The opposition also raised provider-eligibility issues under Mallela. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's summary judgment motion. A separate concurrence agreed only with the result and disputed certain cited legal propositions.
Appellate Term, Second Department
Jun 8, 2007
2007 NY Slip Op 51176(U)
The Workers' Compensation Board must resolve whether the assignor was acting as an employee when the accident occurred. The provider obtained partial summary judgment for that assignor's no-fault claims, while the insurer's cross motion to dismiss was denied. The insurer's proof, including a police accident report, raised a factual question concerning employment status that required Board resolution under the Workers' Compensation Law. The Appellate Term, Second Department, reversed and remitted the matter to the Civil Court, Kings County, to hold it in abeyance pending a prompt application to the Board and then make a new determination of the motion and cross motion.
Appellate Term, Second Department
Jun 8, 2007
2007 NY Slip Op 51175(U)
Split result
The provider lacked admissible billing proof, while the insurer failed to establish its IME nonappearance and fee-schedule defenses. The provider relied on documents attached to the insurer's motion, but its principal doctor's affidavit did not establish sufficient personal knowledge to lay a business-records foundation. The insurer's affidavit failed to establish mailing of IME notices or the assignor's nonappearance. Its evidence also failed to show that certain charges exceeded the Workers' Compensation fee schedule. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its cross motion, and denied that motion, while sustaining denial of the insurer's motion. A separate concurrence agreed only with the result and disputed certain cited legal propositions.
Appellate Term, Second Department
Jun 7, 2007
2007 NY Slip Op 51173(U)
Provider prevailed
The insurer failed to establish that the provider was ineligible under Mallela or had sold the claims at issue. An unverified complaint and an affidavit from separate litigation concerning accounts receivable were informal judicial admissions that could be explained at trial, and did not establish sale of these claims. An unsigned EUO transcript concerning another corporation did not establish improper ownership or control. Allegations of profit transfers to related management and leasing entities also lacked sufficient supporting facts. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion for summary judgment. Factual questions remained concerning provider eligibility and, if eligible, whether it had sold the relevant accounts.
Appellate Term, Second Department
Jun 5, 2007
2007 NY Slip Op 51167(U)
Split result
The insurer raised causation and assignment issues on some claims but failed to support its IME nonappearance defense. The Appellate Term, Second Department, reversed the judgment, awarding summary judgment only on two IME-denied claims ($900 and $154.30) and three claims not denied for defective assignments ($400, $300, and $700). It remanded for interest, attorney's fees, and remaining claims. No personal-knowledge affidavit proved IME nonappearance. Unsworn reports and an affirmed no-disability report failed to establish noncausation; affirmed reports for three other assignors raised coverage issues under Central Gen. Hosp. v Chubb Group of Ins. Cos. Timely assignment denials raised issues on four claims. A separate concurrence disputed excluding unsworn reports and declining review of the unchallenged prima facie showing.
Appellate Term, Second Department
Jun 4, 2007
2007 NY Slip Op 51161(U)
Insurer prevailed
The providers' billing manager failed to lay a business-records foundation for their partial summary judgment motion. The providers sought assigned first-party no-fault benefits using counsel's affirmation, the billing manager's affidavit, and attached documents. The affidavit did not establish personal knowledge of the providers' practices and procedures sufficient to admit the documents as business records. The Appellate Term, Second Department, agreed with the insurer's appellate challenge to the prima facie showing and affirmed denial of the motion. It reached no other issue, including the insurer's assertions of noncooperation with its investigation and failure to comply with verification requests.
Appellate Term, Second Department
Jun 4, 2007
2007 NY Slip Op 51165(U)
Insurer prevailed
The provider had to produce its owner and treating providers for depositions on whether the treating providers were employees. The claim forms identified the treating providers as independent contractors, but the provider called those entries typographical errors and submitted purported W-2 forms to support employee status. Under CPLR 3101 (a) (1), disclosure of material and necessary matters extends to a party's officers, agents, and employees. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to compel the depositions. The provider's conclusory assertion that it did not control the witnesses, raised for the first time on appeal, was outside the record.
Appellate Term, Second Department
Jun 1, 2007
2007 NY Slip Op 51158(U)
Split result
The provider's defective affidavit and the insurer's insufficient staged-accident proof required denial of both summary judgment motions. The provider's corporate officer submitted an affidavit with multiple defects that prevented a determination that it had been properly sworn, defeating the provider's showing of entitlement to judgment. The insurer's cross motion alleged that the assignor's injuries, if any, arose from a staged accident, but did not establish noncoverage as a matter of law under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the provider's motion denied.
Appellate Term, Second Department
Jun 1, 2007
2007 NY Slip Op 51157(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to summary judgment through properly supported business records. Its corporate officer's affidavit conclusorily described the attachments as business records without establishing personal knowledge of the provider's practices and procedures sufficient for their admission. The Civil Court had denied summary judgment because a factual issue existed as to whether an independent contractor rendered the services. The Appellate Term, Second Department, affirmed on the alternative ground of deficient prima facie proof in the assigned no-fault action and did not reach any other issue.
Trial court, Second Department
Jun 21, 2007
2007 NY Slip Op 51256(U)
Provider prevailed
The insurer failed to establish timely mailing of its denial based on the provider's late submission of the claim. The District Court, Nassau County, granted the provider's summary judgment motion and denied the insurer's cross motion. The insurer asserted that the bill was submitted beyond the 45-day limit under 11 NYCRR 65-1.1 and 65-2.4. Both parties conceded that the motions turned on proof of mailing the denial. The claims specialist described printing documents, checking addresses, inserting them in envelopes, affixing postage and depositing them in mailroom bins, but identified no mailing record or checking procedure. The affidavit also failed to establish responsibility for ensuring compliance or actual knowledge of compliance in this instance. The described practices did not establish a presumption of receipt.
