Appellate Division, Third Department
Dec 27, 2007
2007 NY Slip Op 10443
Provider prevailed
Attorney fees for no-fault claims are calculated per claim rather than per assignor under Insurance Law § 5106 (a). The Appellate Division, Third Department, affirmed the orders and judgment awarding the providers summary judgment on certain causes of action, interest, and fees. Applying 11 NYCRR former 65.17 (b) (6) (v) and 65.18 (f) (5), it declined deference to an Insurance Department opinion letter that conflicted with the statute and encouraged multiple actions. The insurer's interest-tolling challenge was unpreserved and also meritless because it had not issued proper, timely denials. Under 11 NYCRR former 65.15 (h) (1), interest accrued at 2% monthly, compounded, beginning 30 days after proper claim presentment. The insurer withdrew its challenge to the providers' assignments.
Appellate Division, Second Department
Dec 18, 2007
2007 NY Slip Op 10155
Insurer prevailed
The claimants' failure to submit a sworn statement within 90 days of the alleged hit-and-run accident barred uninsured motorist arbitration. The Appellate Division, Second Department, reversed the order denying the insurer's CPLR article 75 petition and permanently stayed arbitration. The uninsured motorist endorsement required the sworn statement as a condition precedent to coverage. Following Matter of Eveready Ins. Co. v Mesic, notice through a no-fault benefits application did not cure the breach of that policy requirement. The court did not reach the insurer's remaining contention.
Appellate Division, Third Department
Dec 13, 2007
2007 NY Slip Op 09863
Provider prevailed
An insured incurs medical expenses upon treatment, and payment by other sources does not extinguish the no-fault insurer's obligation. Applying Insurance Law § 5102 (a), the Appellate Division, Third Department, upheld denial of the insurer's dismissal motion in the injured claimant's benefits action. The standing objection based on an assignment was untimely under CPLR 3211 (e). Having denied benefits for IME nonappearance, the insurer could not newly assert late claim submission; its submissions also failed to establish noncoverage. The court modified the order by reversing the provisions vacating the damages inquest and directing discovery, and remitted for a damages determination. Neither party sought more discovery, and all proof necessary to determine damages was before the court.
Appellate Division, Second Department
Dec 11, 2007
2007 NY Slip Op 09770
Split result
⚠ Modified by Westchester Med. Ctr. v Progressive Cas. Ins. Co. (2008 NY Slip Op 04867)
The insurer's intoxication evidence defeated the hospital's summary judgment motion but did not establish entitlement to dismissal. The Appellate Division, Second Department, modified the order to deny the insurer's cross motion and affirmed denial of the hospital's motion on the first cause of action. Verification sought from the hospital that initially treated the assignor raised a factual issue concerning timely denial under 11 NYCRR 65-3.8 (g) and 65-3.5 (c). Uncertified laboratory results and a police report raised issues concerning intoxication and causation under Insurance Law § 5103 (b) (2), although the laboratory evidence lacked an admissible foundation. Certification alone would not cure that defect. The insurer also failed to establish prima facie that intoxication proximately caused the accident.
Appellate Division, Second Department
Dec 4, 2007
2007 NY Slip Op 09590
An arbitrator's refusal to consider an insurer's coverage defense in an unexplained, untimely answer was not arbitrary and capricious. The Appellate Division, Second Department, affirmed the judgment confirming two awards reimbursing the petitioning insurer for no-fault payments and denying the opposing insurer's cross motion to vacate under CPLR article 75. Compulsory arbitration awards may be upheld when supported by evidence and not arbitrary and capricious. The opposing insurer's late answer and evidentiary submissions were rejected, it offered no explanation for the delay, and no company representative appeared at the hearing to offer evidence. Those circumstances supported confirmation of the awards.
Appellate Term, Second Department
Dec 27, 2007
2007 NY Slip Op 52455(U)
Insurer prevailed
The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity. The provider failed to establish its own prima facie case because its corporate officer's affidavit did not demonstrate personal knowledge of recordkeeping practices sufficient to admit the attached documents as business records. The provider's challenge to the NF-10 denial also failed: the omissions were neither basic nor numerous and did not make the form fatally defective. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion. A separate concurrence agreed with the result while expressing disagreement with cited propositions, including treating unanswered facts as proven.
Appellate Term, Second Department
Dec 27, 2007
2007 NY Slip Op 52454(U)
An insurer may call a substitute medical expert, subject to cross-examination, to address the original peer reviews' rationale. The parties stipulated to the provider's prima facie case and timely denials based on lack of medical necessity. When the original reviewers were unavailable, the trial court precluded the insurer's substitute expert on hearsay and cross-examination grounds, then awarded judgment to the provider. The substitute expert was available for cross-examination, and the proposed testimony would address only the grounds stated in the original reports. The Appellate Term, Second Department, reversed the nonjury judgment and remanded for a new trial because the expert should have been permitted to testify.
Appellate Term, Second Department
Dec 27, 2007
2007 NY Slip Op 52453(U)
Split result
The provider was entitled to statutory interest and attorney fees on a claim the insurer admitted denying late and paying after suit began. The provider's corporate affidavit failed to establish personal knowledge of recordkeeping practices sufficient to admit its documents as business records. The insurer nevertheless conceded receipt of one claim and denial beyond the 30-day period in 11 NYCRR 65-3.8 (c), followed by full payment and purported accrued interest. The Appellate Term, Second Department, modified the order to grant summary judgment for interest and attorney fees on that paid claim under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (e). It remanded for calculation and further proceedings on the remaining claims, for which summary judgment remained denied.
Appellate Term, Second Department
Dec 27, 2007
2007 NY Slip Op 52452(U)
Insurer prevailed
The provider's petition to vacate the master arbitrator's award was denied because the record supplied a rational basis for the award. The Appellate Term, Second Department, affirmed the judgment confirming the master arbitrator's determination upholding the arbitrator's denial of no-fault benefits. The court relied on its review of the record and CPLR 7511 (e).
Appellate Term, First Department
Dec 19, 2007
2007 NY Slip Op 27526
Insurer prevailed
The provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity. The insurer supported summary judgment with competent medical evidence, including a peer reviewer's affidavit incorporating an earlier report. The provider submitted only an attorney affirmation and an unsworn, undated doctor's report, which did not constitute admissible opposing evidence. Even if considered, the report failed to address a negative diagnostic study performed during the month before the disputed testing. The Appellate Term, First Department, reversed the order, granted the insurer's motion for summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Dec 7, 2007
2007 NY Slip Op 52334(U)
Insurer prevailed
The provider failed to establish its prima facie case because its employee's affidavit did not lay a business records foundation. The affidavit conclusorily described the attached documents as business records without establishing the employee's personal knowledge of the provider's practices and procedures. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion on that ground. The affirmance rested on a different ground from Civil Court's findings of factual issues concerning coverage and the timeliness of denials.
Trial court, Second Department
Dec 31, 2007
2007 NY Slip Op 52534(U)
The hospital's reimbursement claim required a hearing because factual questions remained about the applicable fee schedule and amount due. The insurer timely partially denied the first hospital's bill as exceeding the Workers' Compensation fee schedule and alleged that a duplicate payment resulted from clerical error. Although the hospital did not oppose recovery of that payment, the amount due remained disputed. The Supreme Court, Nassau County, denied summary judgment to both sides and directed a hearing to determine proper reimbursement. It also severed the second hospital's cause of action, granting leave to proceed separately. Common Insurance Law provisions alone did not satisfy CPLR 1002 (a), because the claims were unrelated in time, place, party, and circumstance.
Trial court, First Department
Dec 10, 2007
2007 NY Slip Op 27542
A timely medical-necessity denial need not state the factual basis or medical rationale supporting it. The Civil Court, Bronx County, granted the insurer renewal under CPLR 2221 (e) (2) after appellate decisions changed the law governing such denials. Under 11 NYCRR 65-3.8 (b) (4), the insurer must release its peer review report upon written request; failure to include the rationale in the denial did not invalidate the denial stipulated to be timely. Renewal remained available because the action was pending on appeal. The court vacated its prior ruling, denied the provider's motions to preclude the medical-necessity defense and for a directed verdict, and restored the action to the trial calendar.
Trial court, Second Department
Dec 3, 2007
2007 NY Slip Op 52273(U)
Provider prevailed
⚠ Not followed by MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))
⚠ Not followed by Uniondale Chiropractic Off. v State Farm Mut. Auto. Ins. Co. (2008 NY Slip Op
51687(U))
The insurer failed to establish timely denial mailing or a supported medical rationale for denying acupuncture treatment. The mailing affidavits lacked safeguards ensuring proper addressing and mailing, proof of compliance in this case and identification of the mailing office. The medical-necessity defense required a factual basis and medical rationale supported by generally accepted professional practices, with evidence that the services departed from those practices. The IME report's conclusory opinion failed to identify objective tests or establish the acupuncturist's qualifications for orthopedic and neurological examinations. The District Court, Nassau County, denied the insurer's summary judgment motion under CPLR 3212, finding its proof insufficient despite the provider's failure to submit rebuttal medical evidence.
Trial court, Second Department
Dec 3, 2007
2007 NY Slip Op 52269(U)
Insurer prevailed
The provider failed to establish that its claim forms were admissible business records under CPLR 4518 (a). The billing manager's affidavit described neither how the forms were generated nor their preparation in the regular course of business. It also failed to establish the preparer's knowledge or receipt of information from someone with knowledge and a business duty to report, or the affiant's familiarity with office practices. Infinity Health Products, Ltd. did not establish the affidavit's sufficiency because the appellate court had not reviewed the prima facie showing. The Civil Court, Kings County, denied the provider's summary judgment motion and granted the insurer's unopposed discovery cross motion solely to require interrogatory answers within 45 days after service with notice of entry.
Trial court, Second Department
Dec 3, 2007
2007 NY Slip Op 52307(U)
Insurer prevailed
A SUM owned-vehicle exclusion applies to an uninsured motorcycle despite the PIP endorsement's separate definition of motor vehicle. The injured claimant sought underinsurance benefits under a family household automobile policy after settling with the other driver's insurer for its policy limits. The claimant's own motorcycle was uninsured. The SUM endorsement's owned-vehicle exclusion was unambiguous and encompassed motorcycles. Liability, no-fault, and uninsured motorist coverages are discrete and internally complete, so definitions in the PIP endorsement did not qualify the separate SUM coverage. The Supreme Court, Queens County, granted the insurer's CPLR 7503 petition permanently staying underinsurance arbitration.
