Appellate Division, Second Department
Aug 21, 2007
2007 NY Slip Op 06461
Insurer prevailed
The hospital failed to establish mailing of the billing documents for the two claims on which it sought summary judgment. A billing service representative's affidavits stated that the insurer had been billed using hospital forms, but did not establish that the representative or anyone else mailed the documents for the relevant patients. The certified mail receipts likewise failed to identify those documents as the contents of the mailings. Because the hospital did not establish prima facie entitlement to judgment, the sufficiency of the insurer's opposition did not require consideration. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and denied the hospital's summary judgment motion on those two causes of action.
Appellate Term, Second Department
Aug 20, 2007
2007 NY Slip Op 27345
Insurer prevailed
An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's summary judgment cross motion, and compelled discovery. Under Insurance Law § 5106 (a), timely denials did not defeat the provider's overdue-payment showing, but the insurer's mailing proof and affirmed peer reviews raised a medical-necessity issue. Failure to object within CPLR 3122's period foreclosed challenges to discovery except privilege under CPLR 3101 or palpable impropriety. Under CPLR 3124 and 3126, the provider had to serve responses within 30 days after the appellate order and produce a deposition witness within 30 days after those responses.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51607(U)
Split result
MVAIC obtained dismissal of two assignors' claims for untimely notices, but failed to establish notice or limitations defenses for a third. Two assignors neither filed timely notices of claim nor sought leave to file late notices under Insurance Law § 5208 (a) and (c). They therefore were not covered persons under Insurance Law § 5221 (b) (2), and the provider could not recover their assigned benefits. For the remaining assignor, the record established neither failure to satisfy a condition precedent nor when the cause of action accrued. The Appellate Term, Second Department, modified the order to deny MVAIC summary judgment on that cause of action and affirmed dismissal of the other two.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51611(U)
Insurer prevailed
The insurer's investigator's affidavit raised a triable coverage issue, and the provider waived its CPLR 2309 (c) objection. The provider obtained summary judgment for assigned no-fault benefits for medical supplies. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Term, Second Department, found that the affidavit demonstrated a founded belief that the alleged injuries did not arise from an insured incident. The provider's objection to the affidavit's form was waived because it was first raised on appeal. The court reversed the judgment, vacated the portion of the order granting the provider summary judgment, and denied that motion.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 27344
Provider prevailed
The insurer failed to prove timely mailing because its denial forms lacked the handwritten dates described in its mailing affidavit. The affiant relied on an office practice of noting the mailing date on each retained denial and asserted that review of the attached copies showed compliance. Those copies contained no such notation, defeating the claimed mailing presumption and precluding the medical-necessity defense. 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 court did not review the provider's uncontested prima facie showing.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51603(U)
Split result
The insurer raised a triable coverage issue for one assignor's claim but failed to do so for the other three assignors' claims. The sole appellate issue was whether the investigator's affidavit sufficiently questioned whether the alleged injuries arose from insured incidents. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the affidavit established a founded belief of noncoverage as to one assignor, defeating the provider's summary judgment motion on that claim. It did not establish that belief for the remaining three. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny summary judgment on the one claim and otherwise affirmed the provider's award of summary judgment.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51613(U)
Insurer prevailed
The insurer's opposition raised a triable issue on lack of medical necessity, defeating the provider's summary judgment motion. The provider established its prima facie entitlement by proving submission of claims stating the losses and overdue payment under Insurance Law § 5106 (a). The insurer demonstrated timely mailing of denials through its standard office practice, and the denials identified peer review reports as their basis. Its opposition papers sufficiently raised a factual issue concerning medical necessity. The Appellate Term, Second Department, reversed the order granting the provider summary judgment, denied the motion, and expressly declined to reach other issues.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51616(U)
Insurer prevailed
The provider failed to establish a prima facie case because its corporate officer did not lay a foundation for the attached business records. The Civil Court denied the provider's summary judgment motion upon finding a factual issue raised by the insurer. On appeal, the insurer challenged the admissibility of the provider's supporting documents. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient for their admission. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, on that alternative ground.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51604(U)
Insurer prevailed
The provider failed to establish a prima facie case because its employee's affidavit did not lay a business-records foundation. The provider moved for summary judgment against MVAIC, and the Civil Court denied the motion based on nonreceipt of a notice of claim under Insurance Law § 5208. The Appellate Term, Second Department, affirmed on the separate ground that the employee had not established personal knowledge of the provider's practices and procedures sufficient to admit the attached documents. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the court found the prima facie showing deficient and expressly reached no other issue.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51601(U)
Insurer prevailed
The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment. The provider sought assigned first-party no-fault benefits and supported its motion with counsel's affirmation, a corporate officer's affidavit, and attached documents. The officer merely described the documents as the provider's business records without establishing personal knowledge of its practices and procedures sufficient to lay an evidentiary foundation. The Appellate Term, Second Department, affirmed the denial of the provider's motion because the supporting documents were not shown to be admissible business records.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51602(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not support admission of the attached business records. In seeking summary judgment for assigned first-party no-fault benefits, the provider relied on an affidavit from its corporate officer. The affidavit did not establish that the officer had personal knowledge of the provider's practices and procedures sufficient to lay a foundation for the attached documents. Agreeing with the insurer's appellate challenge to that proof, the Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51605(U)
Insurer prevailed
CPLR 7511 (e) requires confirmation of an arbitration award when a petition to vacate it is denied. The provider sought to vacate a master arbitrator's award upholding the denial of its first-party no-fault claims. Reviewing the record, the Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld the denial of vacatur. Because the Civil Court had dismissed the proceeding without confirming the award, the appellate court modified the judgment to add confirmation and otherwise affirmed, leaving the denial of benefits in place.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51606(U)
Provider prevailed
The insurer failed to raise a triable coverage issue on its defense that the insured vehicle was not involved in the accident. The provider sought summary judgment for assigned first-party no-fault benefits. The facts offered by the insurer were inadmissible and, even if considered, insufficient to create a factual issue concerning coverage. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's motion, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a). Because the insurer did not challenge the provider's prima facie case below or on appeal, the court expressly declined to review that determination.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51608(U)
Insurer prevailed
The provider failed to establish a business-records foundation for the documents supporting its summary judgment motion. In this action for assigned first-party no-fault benefits, the provider's corporate officer did not establish personal knowledge of the provider's practices and procedures sufficient to admit the attached documents as business records. The provider therefore failed to make a prima facie showing of entitlement to summary judgment. The Appellate Term, Second Department, affirmed the denial of the provider's motion on that ground, rather than the Civil Court's finding of a factual issue concerning the assignor's attendance at EUOs and an IME.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51609(U)
Insurer prevailed
The provider's corporate officer failed to lay a business-record foundation for its summary judgment documents. The provider obtained summary judgment on assigned no-fault claims, and the insurer challenged the foundation for the attached records on appeal. The officer's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the documents as business records. The Appellate Term, Second Department, agreed that the provider had failed to make a prima facie showing, reversed the order, and denied the provider's motion for summary judgment.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51610(U)
Insurer prevailed
The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation. The officer conclusorily identified the attached documents as business records without establishing personal knowledge of the provider's practices and procedures. Civil Court had denied summary judgment because a factual issue existed concerning whether an independent contractor rendered the services. The Appellate Term, Second Department, affirmed on the different ground that the provider had not submitted admissible proof establishing entitlement to summary judgment. It expressly declined to reach any other issue.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51612(U)
Insurer prevailed
The insurer's investigator's affidavit raised a triable issue as to whether the assignor's injuries arose from an insured incident. The provider obtained summary judgment on its assigned no-fault claim, and the insurer appealed on the coverage issue. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the affidavit sufficiently demonstrated a founded belief that the alleged injuries did not arise from an insured incident. The Appellate Term, Second Department, reversed the judgment, vacated the portion of the underlying order granting the provider summary judgment, and denied the provider's motion.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51614(U)
Insurer prevailed
The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation. The affidavit conclusorily described the attached documents as the provider's business records without establishing personal knowledge of its practices and procedures. The insurer challenged that foundation, although Civil Court denied summary judgment on the ground that a factual issue existed. The Appellate Term, Second Department, affirmed the denial on the different ground that the provider's proof was insufficient for admission as business records. It expressly declined to reach any other issue.
Appellate Term, Second Department
Aug 16, 2007
2007 NY Slip Op 51615(U)
Insurer prevailed
The provider's corporate officer failed to lay a business-record foundation for the documents supporting summary judgment. The provider sought assigned no-fault benefits through motion papers supported by counsel's affirmation, the officer's affidavit, and attached documents. The affidavit conclusorily identified the documents as business records but did not establish the officer's personal knowledge of the provider's practices and procedures. The Appellate Term, Second Department, affirmed denial of the provider's motion because the deficient foundation prevented a prima facie showing of entitlement to summary judgment.
Trial court, First Department
Aug 20, 2007
2007 NY Slip Op 52100(U)
Provider prevailed
A provider's failure to attend two EUOs does not alone establish willful noncooperation constituting a material policy breach. The insurer alleged neither persistent, willful obstruction nor objective grounds showing EUOs were reasonably required. The provider had offered to appear with reimbursement for lost wages and transportation under 11 NYCRR 65-3.5 (e), and the insurer showed no negotiation over that request. The Supreme Court, New York County, dismissed the declaratory complaint in its entirety, denied amendment as meritless and denied default judgment against the remaining defendants. Under CPLR 3001, default relief was discretionary and would affect nondefaulting parties' rights; the complaint also lacked merit. The court did not reach the moving provider's prior-pending-action argument.
