Appellate Division, First Department
Feb 21, 2008
2008 NY Slip Op 01598
Insurer prevailed
An insurer's reconsideration of a denied no-fault claim does not extend the claim's accrual date for statute-of-limitations purposes. The Appellate Division, First Department, reversed the order denying the insurer's petition and permanently stayed arbitration. The provider demanded arbitration more than six years after the insurer had denied the claim in full for lack of medical necessity. The six-year limitation in CPLR 213 (2), rather than CPLR 214 (2), applied. Reconsideration prompted by unsolicited medical information did not move accrual to the second denial; accrual remained the statutory payment due date under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8.
Appellate Term, Second Department
Feb 29, 2008
2008 NY Slip Op 50498(U)
Provider prevailed
The insurer's Maryland affidavit lacked a certificate of conformity, and the provider preserved its admissibility objection. The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment. Without a certificate under CPLR 2309 (c), the technical consultant's affidavit and accident analysis did not furnish competent admissible evidence of a founded belief that the injuries arose outside an insured incident. The court declined to review the unchallenged determination that the provider established its prima facie case. The insurer's constitutional challenge to CPLR 2309 (c) was unpreserved and also unreviewable because it failed to notify the Attorney General as required by Executive Law § 71 and CPLR 1012.
Appellate Term, Second Department
Feb 27, 2008
2008 NY Slip Op 50379(U)
Provider prevailed
The providers' summary judgment motion was granted because the insurer failed to support a founded belief of noncoverage with admissible evidence. The Appellate Term, Second Department, reversed the order, insofar as appealed from, applying Central Gen. Hosp. v Chubb Group of Ins. Cos., and remanded for statutory interest and attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Feb 26, 2008
2008 NY Slip Op 50347(U)
Insurer prevailed
The insurer's unrebutted peer review proof established that the equipment supplied by the provider lacked medical necessity. The insurer demonstrated timely mailing of its denials through evidence of its standard office mailing procedure, and submitted an affirmed peer review report and its reviewing chiropractor's affidavit. The provider failed to rebut the medical-necessity showing. Its own summary judgment motion also failed because its corporate officer did not establish personal knowledge of its practices and procedures sufficient to authenticate the attached documents as business records. The Appellate Term, Second Department, reversed the order, denied the provider's motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 26, 2008
2008 NY Slip Op 50353(U)
Provider prevailed
MVAIC failed to establish its statute-of-limitations defense because the record did not determine when the benefits became overdue. The Appellate Term, Second Department, reversed the order granting MVAIC summary judgment dismissing the provider's action and denied the motion. Under Insurance Law § 5106 (a), overdue payment is an element of a provider's prima facie case, and the limitations period does not begin until benefits become overdue. The record lacked the facts needed to determine accrual, so MVAIC did not prove the action time-barred as a matter of law.
Appellate Term, Second Department
Feb 26, 2008
2008 NY Slip Op 50352(U)
Insurer prevailed
The provider failed to establish its entitlement to summary judgment because its affidavit did not authenticate the claim forms as business records. A corporate officer described the attached documents as business records but did not establish personal knowledge of the provider's practices and procedures sufficient to lay an admissible foundation. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, reversed the judgment, vacated the underlying order and denied the provider's motion. It remanded for determination of the insurer's cross motion to compel depositions under CPLR 3124 and 3126, which the Civil Court had denied as academic upon awarding partial summary judgment.
Appellate Term, Second Department
Feb 26, 2008
2008 NY Slip Op 50349(U)
Split result
The provider's business-record foundation and the insurer's proof of fraudulent incorporation were insufficient for summary judgment. The provider's president failed to establish personal knowledge of its recordkeeping practices sufficient to authenticate the documents supporting its motion. The insurer relied on the owner's EUO testimony denying knowledge of many aspects of daily operations. That testimony did not establish as a matter of law that a nonphysician business manager was the provider's true owner or that the provider was ineligible for reimbursement under Mallela. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its motion, and denied that motion. The denial of the insurer's cross motion remained undisturbed, and the matter was remanded.
Appellate Term, Second Department
Feb 21, 2008
2008 NY Slip Op 50344(U)
Split result
A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor. Under 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), the provider was denied summary judgment on two claims identifying an independent contractor as treating provider. A timely fee-schedule defense raised a triable issue on another claim. On the remaining claim, the insurer failed to establish timely denial or verification under 11 NYCRR 65-3.8 (c) and 65-3.5 (a), (b); its investigator also failed to support a founded belief that the injuries lacked a nexus to the accident. The Appellate Term, Second Department, reversed the judgment, awarded partial summary judgment only on that remaining claim, and remanded for interest, attorney's fees and further proceedings.
Appellate Term, Second Department
Feb 21, 2008
2008 NY Slip Op 50345(U)
Split result
The insurer failed to establish timely mailing of its follow-up verification request because the date stamp contradicted its affidavit. Its stated procedure was to stamp each request with its mailing date, but both initial and follow-up requests bore the initial request's date, rather than the different mailing dates asserted in the affidavit. The insurer therefore lacked a presumption of timely follow-up mailing and was not entitled to summary judgment for unanswered verification. The provider also failed to authenticate its supporting documents through its billing manager's affidavit. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's motion, denied that motion, and remanded. The denial of the insurer's cross motion remained undisturbed.
Appellate Term, Second Department
Feb 21, 2008
2008 NY Slip Op 50346(U)
Split result
The insurer's late denial barred its medical-necessity defense to the first claim, but unrebutted peer review defeated the second. The Appellate Term, Second Department, reversed the judgment, vacated summary judgment for the provider on the second cause of action, and granted the insurer summary judgment dismissing it. The first claim's denial was mailed 31 days after verification was received, precluding the defense under 11 NYCRR 65.15 (g), now 11 NYCRR 65-3.8. The second denial timely invoked peer review, and the provider offered no medical rebuttal. The court rejected requiring a prescription as part of the provider's prima facie case, leaving other aspects unreviewed. It remanded to calculate interest and attorney's fees on the first claim under Insurance Law § 5106 (a).
Appellate Term, Second Department
Feb 8, 2008
2008 NY Slip Op 50289(U)
Insurer prevailed
The provider's cross motion for summary judgment failed because its corporate officer did not lay a business-record foundation. The affidavit described the attached documents as business records in conclusory terms without establishing personal knowledge of the provider's practices and procedures. The Appellate Term, Second Department, reversed the judgment, vacated the order, and denied the provider's cross motion. It remanded for determination of the insurer's motion under CPLR 3124 and 3126 to compel depositions of the provider, assignor and treating physician. That motion had been denied as academic when the Civil Court granted summary judgment. The appellate court expressly reached no other issue.
Appellate Term, Second Department
Feb 8, 2008
2008 NY Slip Op 50293(U)
Split result
The insurer failed to establish timely denials because it mailed them more than 30 days after receiving the claims without proving tolling. Under 11 NYCRR 65-3.8 (a) (1), it therefore failed to show that its medical-necessity defense was not precluded, despite submitting affirmed peer review reports. The court rejected the provider's contention that the NF-10 forms were fatally defective. The provider's own motion failed because its corporate officer did not establish personal knowledge sufficient to authenticate the supporting documents as business records. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's motion, denied that motion, and remanded for further proceedings. The denial of the insurer's cross motion remained undisturbed.
Appellate Term, Second Department
Feb 8, 2008
2008 NY Slip Op 50294(U)
Insurer prevailed
The provider failed to establish its prima facie case because its employee's affidavit did not authenticate the supporting business records. The affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to lay a foundation for admitting the documents attached to its summary judgment motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, reversed the judgment, vacated the order granting the provider summary judgment, and denied its motion. The court expressly reached no other issue.
Appellate Term, Second Department
Feb 8, 2008
2008 NY Slip Op 50295(U)
An insurer may raise grounds for vacatur in opposition to confirmation even after CPLR 7511's 90-day period has expired. The petitioning insurer sought reimbursement of no-fault payments through compulsory interinsurer arbitration under 11 NYCRR 65-4.11 and Insurance Law § 5105 (b), and obtained three awards. Although the responding insurer had not moved to vacate or modify them, its opposition to confirmation could be considered. On the merits, the arbitrator had considered the affirmative defenses and police report, and the awards were supported by the evidence. They were neither arbitrary and capricious nor unsupported by any reasonable hypothesis. The Appellate Term, Second Department, affirmed the judgment confirming the awards in favor of the petitioning insurer.
Appellate Term, Second Department
Feb 6, 2008
2008 NY Slip Op 50277(U)
Provider prevailed
The insurer failed to justify vacatur because it proved neither a reasonable excuse for its default nor a meritorious defense. Under CPLR 5015 (a), both were required. Its conclusory defense allegations did not establish that the defenses appeared in timely denials, and its documentary proof did not support a presumption of timely mailing through a standard office procedure. Its claims representative also merely assumed that faxing a proposed stipulation extended the time to answer, without discussing an extension with the provider's counsel or receiving any indication of agreement. The Appellate Term, Second Department, found that vacatur was an improvident exercise of discretion, reversed the order, and denied the insurer's motion, leaving the provider's default judgment in place.
Trial court, Second Department
Feb 28, 2008
2008 NY Slip Op 50675(U)
Split result
The insurer obtained summary judgment on a fall-related claim; the other claim remained pending for autopsy verification. The Supreme Court, Nassau County, denied the hospital's motion on both claims and granted the insurer's cross motion only on the fall-related claim. A peer review established that treatment concerned a stairway fall, and the denial issued 29 days after receipt of medical records. On the other claim, 11 NYCRR 65-3.8 (g) entitled the insurer to a timely requested autopsy report obtainable under County Law § 677 (3) (b). The insurer's evidence did not establish intoxication's contribution to the collision, so its cross motion was denied on that claim, which was held in abeyance pending the hospital's application to inspect the report.
Trial court, First Department
Feb 25, 2008
2008 NY Slip Op 50330(U)
Insurer prevailed
An insurer need show only potential merit to an employment-based workers' compensation defense to require a Board determination. The assignor's signed NF-2 stated that the accident occurred in the course of employment, and the police report identified the vehicle as a taxi. The Civil Court, New York County, considered the application reliable as a third-party business record and the taxi notation an officer's observation admissible under CPLR 4518. Those documents satisfied the insurer's burden; the provider offered no employment-status evidence. Following O'Rourke v Long, the court left the coverage determination to the Workers' Compensation Board, granted the insurer summary judgment dismissing the complaint without prejudice, and denied the provider's cross motion as moot.
Trial court, Second Department
Feb 25, 2008
2008 NY Slip Op 50368(U)
Insurer prevailed
An insurer need not seek further verification when its medical experts have sufficient information to assess medical necessity. After the parties stipulated to the provider's prima facie case and timely denial, the insurer's experts testified that the upper-extremity EMG and NCV studies were unnecessary for diagnosis or treatment. The Civil Court, Kings County, credited their detailed factual basis and medical rationale. It rejected the provider's argument that the experts should have requested additional medical history, citing the prompt-payment framework of Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The provider presented no witnesses to rebut the insurer's proof. The court found that the insurer established lack of medical necessity and dismissed the complaint.
Trial court, Second Department
Feb 25, 2008
2008 NY Slip Op 50638(U)
Provider prevailed
The insurer failed to raise a triable issue of intentional injury because its computer entry and the emergency room entry were inadmissible. The Supreme Court, Nassau County, granted the hospital summary judgment under CPLR 3212 on the unpaid claim. The insurer's account of its insured's statements was hearsay, failed CPLR 4518 (a) because the source lacked a business duty to report, and was not a party admission. The emergency room entry identified no source and was irrelevant to diagnosis or treatment. Assuming the coverage defense survived the absence of a timely denial, competent supporting evidence was still required. On a separate late-paid claim, the hospital received attorney fees and any unpaid statutory interest under 11 NYCRR 65-3.10 (a); the first claim was withdrawn.
Trial court, First Department
Feb 20, 2008
2008 NY Slip Op 28053
Provider prevailed
The insurer failed to establish timely verification requests because its affidavits omitted when it received the provider's bill. The Civil Court, New York County, denied the insurer's summary judgment motion to dismiss the action as premature and granted the provider's cross motion. Although the provider had not furnished the requested referring physician's report and medical necessity letter, the insurer proved only when its requests were mailed. The court rejected the argument that 11 NYCRR 65-3.8 (f) permitted verification requests to toll payment deadlines regardless of timeliness, applying 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b). The insurer's own affidavit established receipt of the claim and failure to pay or deny within 30 days, supporting the provider's prima facie case.
Trial court, Third Department
Feb 11, 2008
2008 NY Slip Op 50729(U)
Provider prevailed
The insurer was denied summary judgment on a claim filed two days late, as the excuse for the delay was not unreasonable as a matter of law. The injured claimant filed the no-fault claim 32 days after the accident, following a meeting with counsel on the 30th day. Counsel attributed the additional two days to a work backlog. The City Court, Kingston, denied the insurer's motion to dismiss the action. It considered the brief delay and proffered excuse in light of the No-Fault Law's purpose and the justification provision in 11 NYCRR 65-1.1. The insurer's denial also failed to advise the claimant of the right to provide written justification, as required by 11 NYCRR 65-3.3 (e).
Trial court, Second Department
Feb 8, 2008
2008 NY Slip Op 50654(U)
Insurer prevailed
The injured claimant's motion to vacate the dismissal, restore the action, and extend the time to file a note of issue was denied. The Supreme Court, Nassau County, found the prerequisites unmet without identifying the deficiency, citing CPLR 5015 (a) (1) and no-fault proof requirements under 11 NYCRR 65-3.8 (a) and 65-3.5.
Trial court, Second Department
Feb 6, 2008
2008 NY Slip Op 50205(U)
Provider prevailed
An insurer asserting lack of medical necessity must show that the services departed from generally accepted medical or professional practice. At trial, the parties stipulated to the provider's prima facie case and timely denial, leaving the necessity of six acupuncture sessions at issue. The insurer's IME physician testified that the assignor's injuries had resolved and further treatment was unnecessary. Following Citywide Social Work & Psychological Services v Travelers Indemnity, the Civil Court, Richmond County, found that the physician identified neither the applicable standard nor a departure from it. The physician also failed to address headache treatment or explain why acupuncture could not alleviate subjective pain. The conclusory opinion was insufficient despite the absence of rebuttal, and judgment was granted to the provider.
