Appellate Division, Second Department
Jul 24, 2007
2007 NY Slip Op 06226
Insurer prevailed
The hospital's challenge to the adequacy of the insurer's IME-based denial was raised for the first time in reply and was not considered. The hospital sought summary judgment on the first cause of action, arguing that the insurer had not denied its claim within 30 days. The insurer produced a prescribed denial form mailed within that period, raising a factual issue under Insurance Law § 5106 (a), 11 NYCRR former 65.15 (g) (3), and 11 NYCRR 65-3.4 (c) (11). Although the form referenced an IME without attaching the report or otherwise explaining the denial, there was no evidence of an opportunity for surreply. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the hospital summary judgment.
Appellate Division, Second Department
Jul 24, 2007
2007 NY Slip Op 06227
Insurer prevailed
The insurer's motion to vacate its default was granted upon a showing of a reasonable excuse and a potentially meritorious defense. The Appellate Division, Second Department, reversed the denial of the insurer's motion, vacated the clerk's judgment, and deemed the proposed answer served. Applying CPLR 5015 (a) (1), it found the required showing satisfied without describing the excuse or defense.
Appellate Term, Second Department
Jul 24, 2007
2007 NY Slip Op 51505(U)
Insurer prevailed
The provider's officer failed to lay a business-records foundation for the documents supporting summary judgment. The Civil Court denied the provider's motion to recover first-party no-fault benefits on the ground that the insurer had timely denied the claims. On appeal, the insurer challenged the provider's prima facie showing. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the attached documents as business records. The Appellate Term, Second Department, affirmed the denial of summary judgment on that basis and did not reach the parties' remaining contentions.
Appellate Term, Second Department
Jul 23, 2007
2007 NY Slip Op 51515(U)
Insurer prevailed
The provider's summary judgment award was reversed because its employee's affidavit did not establish admissibility of the claim forms. The insurer challenged the provider's prima facie showing both below and on appeal. 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 lay a foundation for admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied the provider's motion.
Appellate Term, Second Department
Jul 13, 2007
2007 NY Slip Op 27323
Split result
No-fault interest is tolled upon receipt of a denial if the claimant does not sue or seek arbitration within 30 days. The Appellate Term, Second Department, modified the order, insofar as appealed from, and remanded for an amended judgment on the provider's interest cross motion. Under Insurance Law § 5106 (a), interest accrued from 30 days after the insurer received each unpaid claim. Under 11 NYCRR former 65.15 (h) (3), now 11 NYCRR 65-3.9 (c), accrual stopped when the provider received the untimely denials, resumed when the action commenced, and continued until judgment. Payment intended to satisfy the judgment did not acknowledge the disputed interest provision. The provider retained interest entitlement, subject to the insurer's successful tolling objection.
Appellate Term, Second Department
Jul 12, 2007
2007 NY Slip Op 51485(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to summary judgment through admissible business records. Its corporate officer's affidavit conclusorily identified the attachments as business records but did not establish personal knowledge of the provider's practices and procedures sufficient to lay a foundation for admission. The Appellate Term, Second Department, affirmed the denial of the provider's motion for assigned first-party no-fault benefits. A later order granting reargument and substantially adhering to the original determination did not affect the appeal under CPLR 5517 (a). The court declined to review that later order under CPLR 5517 (b) because the appellate record did not contain the motion papers on which it was based.
Appellate Term, Second Department
Jul 12, 2007
2007 NY Slip Op 51488(U)
Insurer prevailed
A master arbitrator's substantive legal determination must be upheld if it has a rational basis, even if legally erroneous. Under Matter of Petrofsky, a master arbitrator reviews the grounds in CPLR article 75 and whether the award was arbitrary, capricious, or irrational, without reviewing factual or procedural errors. The provider sought vacatur of an award denying first-party no-fault benefits. The Appellate Term, Second Department, found a rational basis for the master arbitrator's affirmance and upheld denial of the petition. It modified the judgment to confirm the award as required by CPLR 7511 (e), and noted that the petition was timely under CPLR 7511 (a).
Appellate Term, Second Department
Jul 12, 2007
2007 NY Slip Op 51484(U)
Insurer prevailed
An untimely denial does not preclude a defense that the policy covered only property damage and provided no no-fault coverage. The provider appealed the denial of its summary judgment motion for assigned benefits after the Civil Court denied both sides' motions. Following Zappone v Home Ins. Co. and Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Term, Second Department, found denial timeliness irrelevant to that coverage defense. The insurer's opposing papers raised a factual issue as to whether its policy obligated it to pay no-fault claims. The court affirmed the order, insofar as appealed from, leaving the provider's motion denied.
Appellate Term, Second Department
Jul 12, 2007
2007 NY Slip Op 51487(U)
Insurer prevailed
The provider's conclusory affidavit failed to establish an admissible business-records basis for summary judgment. The provider moved to recover assigned first-party no-fault benefits with counsel's affirmation, a corporate officer's affidavit, and attached documents. The insurer challenged the affidavit's probative value. The officer did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to establish that the attachments were admissible business records. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion for failure to make a prima facie showing, and reached no other issue.
Appellate Term, First Department
Jul 9, 2007
2007 NY Slip Op 51334(U)
Insurer prevailed
The provider's summary judgment motion was denied on appeal because the insurer raised a triable issue of noncoverage. The Appellate Term, First Department, reversed the order and remanded, relying on Central Gen. Hosp. v Chubb Group of Ins. Cos. and the insurer's submissions concerning whether the alleged injury arose from an insured incident.
Appellate Term, First Department
Jul 9, 2007
2007 NY Slip Op 51336(U)
Split result
A single failure to comply with a discovery stipulation did not warrant precluding the insurer's policy-exhaustion defense. In the provider's action for assigned first-party no-fault benefits, there was no showing that the insurer's noncompliance was willful and contumacious as required for the sanction under CPLR 3126. Factual issues remained as to whether policy limits were exhausted when the provider submitted its claims. The Appellate Term, First Department, modified the order to deny the provider's cross motion for summary judgment, while leaving the insurer's motion denied. It remanded for further proceedings and directed the insurer to comply with outstanding discovery relevant to exhaustion.
Appellate Term, Second Department
Jul 3, 2007
2007 NY Slip Op 51342(U)
Insurer prevailed
The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity. The provider's owner also failed to establish personal knowledge of business practices sufficient to admit the documents supporting the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying that motion. Although the insurer had not cross-appealed the denial of its cross motion, the court searched the record under CPLR 3212 (b) and granted the insurer summary judgment dismissing the action. The peer review established lack of medical necessity and was not refuted. A separate concurrence agreed only with the result and expressed disagreement with certain propositions in the cited authorities.
Appellate Term, Second Department
Jul 3, 2007
2007 NY Slip Op 51343(U)
Provider prevailed
The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity. Its claims representative's affidavit neither established actual mailing nor described office procedures ensuring proper addressing and mailing. Applying 11 NYCRR 65-3.8 (c), the Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). The majority did not review the provider's prima facie showing because the insurer had not challenged it below or on appeal; a dissent found the provider's business-records foundation inadequate and the insurer's denial timely.
Appellate Term, First Department
Jul 2, 2007
2007 NY Slip Op 51308(U)
Split result
The insurer raised licensing issues as to the surgical facility but was precluded from asserting fraudulent billing against the orthopedic provider. Under 11 NYCRR 65-3.16 (a) (12) and Mallela, the insurer's documents raised factual questions about the surgical facility's compliance with state licensing requirements. The Appellate Term, First Department, modified the order to deny that provider partial summary judgment. It affirmed summary judgment for the orthopedic provider because the insurer failed to deny its claims within 30 days under 11 NYCRR 65-3.8 (c), precluding the fraudulent-billing defense. The insurer's own documents established receipt of that provider's claims. Denial of the insurer's cross motion to dismiss the complaint was affirmed.
Appellate Term, First Department
Jul 2, 2007
2007 NY Slip Op 51309(U)
Provider prevailed
The insurer's late denials precluded its statutory, policy-condition, exclusion, and fraudulent-billing defenses. The providers established prima facie entitlement to summary judgment, and the insurer undisputedly failed to deny their claims within 30 days under 11 NYCRR 65-3.8 (c). Although a lack-of-coverage defense survived untimely denial under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's documents did not raise a factual issue as to whether the injuries arose from an insured incident or the collision was intentional and part of an insurance fraud scheme. The Appellate Term, First Department, reversed the order denying the providers' motion and granted them summary judgment.
Trial court, Second Department
Jul 20, 2007
2007 NY Slip Op 51405(U)
Provider prevailed
The insurer's motion to stay enforcement of a settlement judgment failed on procedural grounds and because no unconscionable penalty arose. The District Court, Nassau County, denied the motion and left the provider free to enforce the judgment. The stipulation required payment of a reduced sum within 30 days and authorized judgment for the full complaint amount upon default. The insurer admittedly missed that deadline. Relief from the entered judgment required an order to show cause under CPLR 5015, rather than an ordinary notice of motion. On the merits, the court treated the stipulation in the continuing action as consent to judgment conditioned on timely reduced payment, following ABCO Refrigeration Supply Corp. v Designs by Keiser Corp.; the disparity was not unconscionable.
