Appellate Division, Second Department
Sep 18, 2007
2007 NY Slip Op 06848
Provider prevailed
The insurer's conclusory medical affidavit failed to raise a factual issue that the treated condition was unrelated to the automobile accident. The hospital sought summary judgment for unpaid no-fault benefits, and the insurer cross-moved to dismiss. Under 11 NYCRR 65-3.8 (a), benefits become overdue 30 days after receipt of proof of claim, including relevant verification requested under 11 NYCRR 65-3.5. The hospital established its prima facie entitlement through proof of mailing the prescribed billing form and nonpayment within 30 days. The insurer supplied no admissible factual or evidentiary foundation for its claimed lack of accident-related coverage; its expert affidavit was speculative and unsupported. The Appellate Division, Second Department, affirmed the judgment for the provider.
Appellate Division, Second Department
Sep 18, 2007
2007 NY Slip Op 06865
Insurer prevailed
The provider's claim was premature because the insurer timely requested intoxication verification that it never received. After a one-car accident, the hospital submitted billing forms and sought summary judgment based on the insurer's failure to pay or deny within 30 days under 11 NYCRR 65-3.8 (c). The insurer's opposing evidence and cross motion established timely additional verification requests concerning the driver's alleged intoxication under 11 NYCRR 65-3.5 (a), (b), (c) and 65-3.8 (g). With no factual dispute concerning the failure to provide the required information, payment was not yet due. The Appellate Division, Second Department, affirmed the denial of the provider's motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Division, Second Department
Sep 18, 2007
2007 NY Slip Op 06884
Insurer prevailed
A no-fault insurer denied an opportunity to participate in a Workers' Compensation Board hearing is not bound by its determination. A livery driver assigned benefits to the treating provider, which withdrew its first arbitration claim to submit the employment issue to the Board. The Board found that the injuries did not arise in the course of employment, but the insurer received no hearing notice. In a subsequent arbitration, the arbitrator barred the insurer's contrary evidence and awarded benefits; a master arbitrator affirmed. In the CPLR article 75 proceeding, the Appellate Division, Second Department, affirmed denial of confirmation, vacatur of the award, and resubmission of the employment issue to the Board with notice to all involved parties, following Liss v Trans Auto Sys.
Appellate Division, Second Department
Sep 11, 2007
2007 NY Slip Op 06650
Insurer prevailed
The hospital's action was premature because it sued approximately two months before the insurer's time to pay or deny expired. The insurer timely requested verification, and the hospital claimed the materials were received on December 22, 2004. Even assuming sufficient mailing proof, the 30-day period under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) would not expire until January 21, 2005; the hospital had commenced suit on November 19, 2004. The Appellate Division, Second Department, reversed the order, insofar as appealed from, denied reargument, and reinstated denial of the hospital's summary judgment motion on the first cause of action. Searching the record under CPLR 3212 (b), it granted the insurer's cross motion dismissing that cause despite the insurer's failure to appeal the original denial.
Appellate Term, Second Department
Sep 14, 2007
2007 NY Slip Op 27371
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and searched the record to dismiss the unpaid balances for 23 sessions already reimbursed at that schedule's rate. The provider's prima facie case under Insurance Law § 5106 (a) did not require proof of compliance with prevailing local fees under 11 NYCRR 68.5 (b). Seven other sessions remained disputed because the insurer's IME evidence raised a medical-necessity issue. A separate concurrence followed Great Wall's majority holding.
Appellate Term, Second Department
Sep 14, 2007
2007 NY Slip Op 51756(U)
Insurer prevailed
The provider's failure to answer discovery or oppose the insurer's motion supported striking its complaint under CPLR 3126 (3). The insurer demonstrated possible reimbursement ineligibility under Mallela and that the requested discovery was material and necessary to its defense under CPLR 3101. The Appellate Term, Second Department, inferred willful and contumacious conduct from the provider's failure to respond to the demands and to submit written opposition to the motion. It reversed the order denying the insurer's unopposed motion and granted the motion to strike the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Sep 14, 2007
2007 NY Slip Op 51757(U)
Insurer prevailed
The insurer's unrefuted need for discovery on licensing defeated the provider's summary judgment motion. The insurer asserted potential reimbursement ineligibility under 11 NYCRR 65-3.16 (a) (12) and Mallela, explaining that the provider's failure to supply discovery prevented it from establishing the defense. The provider did not refute that argument in reply. Applying CPLR 3212 (f), the Appellate Term, Second Department, affirmed denial of summary judgment and declined to review the unchallenged prima facie showing. It dismissed the appeal from the disclosure order because the provider had not opposed the insurer's cross motion in writing; that portion was entered on default and was not appealable under CPLR 5511.
Appellate Term, Second Department
Sep 14, 2007
2007 NY Slip Op 51758(U)
Insurer prevailed
The provider's inadequate discovery responses and failure to oppose the insurer's motion supported striking its complaint under CPLR 3126 (3). The insurer showed possible reimbursement ineligibility under Mallela and that the requested discovery was material and necessary under CPLR 3101. The provider supplied utterly inadequate responses, did not amend or supplement them after rejection, ignored supplemental interrogatories, and submitted no written opposition to the motion. The Appellate Term, Second Department, inferred willful and contumacious conduct from those failures, reversed the order denying the insurer's unopposed motion, and granted the motion to strike the complaint.
Appellate Term, Second Department
Sep 12, 2007
2007 NY Slip Op 27366
Insurer prevailed
A professional service limited liability company is ineligible for no-fault reimbursement if it violates licensing requirements. The insurer proved that the psychologist listed as a member and manager was never an owner or member, establishing violations of Limited Liability Company Law § 1203 (b) and § 1207. Under Mallela and 11 NYCRR 65-3.16 (a) (12), the defense applies to such companies even for services predating the regulation and is not waived by omission from a denial or precluded by untimeliness. The amended answer pleaded the defense, and the provider's hearsay explanation did not rebut the proof. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's motion, and granted the insurer's cross motion for summary judgment, reaching no other issue.
Appellate Term, Second Department
Sep 12, 2007
2007 NY Slip Op 51734(U)
Insurer prevailed
The insurer's summary judgment motion was denied without prejudice to renewal upon proper papers. Civil Court had denied the motion because the insurer omitted the pleadings, a ground the provider did not raise. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2006-312 Q C, and otherwise affirmed.
Appellate Term, Second Department
Sep 12, 2007
2007 NY Slip Op 51735(U)
Insurer prevailed
A summary judgment motion lacking the pleadings is procedurally defective under CPLR 3212 (b) unless the record is sufficiently complete. The insurer moved for summary judgment in an assigned no-fault action without attaching the pleadings. Civil Court could deny the motion on that ground even though the provider had not raised it. The Appellate Term, Second Department, modified the order to make the denial without prejudice to renewal upon proper papers and otherwise affirmed, allowing the insurer to renew. The court expressly declined to reach the parties' arguments on the merits.
Appellate Term, Second Department
Sep 12, 2007
2007 NY Slip Op 51737(U)
Insurer prevailed
The insurer's summary judgment motion was denied without prejudice to renewal upon proper papers. Civil Court denied the motion for failure to include the pleadings, although the provider had not raised that ground. The Appellate Term, Second Department, modified the order for the reasons stated in the companion appeal decided the same day, No. 2006-312 Q C, and otherwise affirmed.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51981(U)
Provider prevailed
The insurer's accident-reconstruction affidavit was inadmissible because it did not comply with CPLR 2309 (c). The provider preserved its objection, and the insurer consequently failed to submit competent evidence of a founded belief that the injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment on five claims. The insurer's constitutional challenge was unreviewable because it had not notified the Attorney General as required by Executive Law § 71 and CPLR 1012. Under CPLR 5501 (a) (1), the remaining claim was outside the appeal's scope; the provider had not appealed denial of summary judgment on that claim. The court did not review the unchallenged prima facie showing.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51983(U)
Provider prevailed
The insurer failed to raise a triable issue on its IME no-show defense because it lacked an affidavit based on personal knowledge. The provider obtained summary judgment on assigned no-fault claims after Civil Court found that the insurer had not established timely mailing of its denials. The Appellate Term, Second Department, affirmed the resulting judgment on a different ground: the insurer submitted no affidavit from anyone with personal knowledge of the assignor's nonappearance. The provider's prima facie showing was unchallenged, and the appellate court expressly declined to review it.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51977(U)
Insurer prevailed
The provider failed to establish a prima facie case because its employee's affidavit did not supply a business-record foundation. In seeking summary judgment on assigned no-fault claims, the provider attached documents supported by an employee's affidavit. The affidavit did not establish the employee's personal knowledge of the provider's practices and procedures sufficient to admit those documents as business records. The Appellate Term, Second Department, agreed with the insurer's challenge and affirmed the order denying the provider's motion for summary judgment.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51978(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider appealed denial of its petition to vacate a master arbitrator's award upholding denial of assigned no-fault claims. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination. It modified the judgment to add the required confirmation of the award and otherwise affirmed, leaving the insurer's favorable determination intact.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51979(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider challenged a master arbitrator's award sustaining the arbitrator's denial of an assigned no-fault claim. The Appellate Term, Second Department, found a rational basis for that determination and upheld denial of vacatur. Because denial of the petition required confirmation, it modified the judgment to add that relief and otherwise affirmed, preserving the insurer's favorable award.
Appellate Term, Second Department
Sep 4, 2007
2007 NY Slip Op 51980(U)
Insurer prevailed
An award must be confirmed under CPLR 7511 (e) when a petition to vacate it is denied. The provider sought vacatur of a master arbitrator's award upholding denial of its assigned no-fault claim. The Appellate Term, Second Department, found a rational basis for the master arbitrator's determination and upheld denial of the petition. It modified the judgment to provide for confirmation of the award and otherwise affirmed, leaving the insurer's favorable award in place.
Trial court, Second Department
Sep 24, 2007
2007 NY Slip Op 27385
Insurer prevailed
CPLR 5003-a and CPLR 2104 do not authorize enforcement by motion of a settlement reached before an action commenced. The insurer issued a settlement check after receiving an injured claimant's release, then stopped payment based on its belief that the collision was staged. In the insurer's later coverage declaratory judgment action, the movants sought payment and interest under CPLR 5003-a. The Supreme Court, Kings County, denied enforcement because both statutes apply to agreements in pending actions. No breach-of-contract or specific-performance counterclaim had been pleaded, and the court declined to treat the application as a CPLR 3212 motion. The movants remained free to seek amendment and then summary judgment.
Trial court, Second Department
Sep 20, 2007
2007 NY Slip Op 51776(U)
Insurer prevailed
The insurer established that the provider remained fraudulently organized when it rendered the billed psychological services. The District Court, Nassau County, granted summary judgment dismissing the complaint under 11 NYCRR 65-3.16 (a) (12) and Limited Liability Company Law §§ 1203 and 1207. The psychologist listed as an original member denied any ownership, and the provider offered no adequate proof that another psychologist acquired an interest before the services. Following Mallela and subsequent authority, the court applied the licensing bar even to services predating the regulation's effective date. Conflicting testimony and tax forms raised a factual issue about the treating psychologist's employment status, so the independent-contractor defense under 11 NYCRR 65-3.11 (a) did not independently support summary judgment.
Trial court, Second Department
Sep 18, 2007
2007 NY Slip Op 27377
Provider prevailed
The insurer failed to justify severing one provider's claims involving two unrelated assignors and accidents. The District Court, Nassau County, denied reargument of its prior refusal to sever. CPLR 601 (a) permits a single plaintiff to join factually unrelated claims against an adverse party, while CPLR 603 allows severance when trial would be unwieldy or confusing. Two claims presented little danger of either problem, and cases involving multiple unrelated assignees or substantially more assignors were distinguishable. The court also rejected equating voluntary joinder with involuntary consolidation under CPLR 602. It left the point at which additional claims would warrant severance to the circumstances of each case.
Trial court, Second Department
Sep 10, 2007
2007 NY Slip Op 51705(U)
The provider's and insurer's summary judgment applications failed because neither supplied sufficient admissible proof. The District Court, Nassau County, denied both applications. Neither party established a business-record foundation under CPLR 4518 (a), and the insurer's EUO transcripts were unsigned, unverified and uncertified. The insurer also failed to prove that the policy contained an EUO endorsement under 11 NYCRR 65-1.1 (d) or that the EUO notices were properly mailed. Alternatively, even if admissible, the staged-accident submissions would raise factual issues sufficient to defeat the provider's motion but would not establish the insurer's entitlement to judgment. The court rejected the provider's contention that an untimely denial waived the lack-of-coverage defense; conflicts in the insurer's submissions required credibility determinations.
Trial court, Second Department
Sep 5, 2007
2007 NY Slip Op 51760(U)
Insurer prevailed
A dispute between insurers over priority of no-fault payment must be resolved by mandatory arbitration rather than as a coverage question. At trial, the provider sought benefits under its assignor's policy for injuries sustained while driving a rental vehicle. The Civil Court, Queens County, found that the insurer failed to establish lack of coverage because it produced only a declarations page, not the policy. A founded belief did not establish that the policy excluded the loss, and 11 NYCRR 65-1.1 did not excuse production. Nevertheless, the court dismissed the complaint for lack of jurisdiction because the dispute with the rental company concerned payment priority under Insurance Law § 5105 and 11 NYCRR 65.10 (a) (5).
