Appellate Division, Second Department
Apr 29, 2008
2008 NY Slip Op 04072
Insurer prevailed
The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim. The hospital established mailing and receipt of billing forms, overdue payment, and a received denial that omitted required information. In opposition, an employee familiar with the insurer's standard mailing procedures attested that an earlier, complete denial had been timely issued, raising a factual issue about proper denial. The insurer's excerpts of the insured's medical records were admissible under CPLR 4518 (c) and also raised a factual issue regarding entitlement to deny the claim. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the hospital's summary judgment motion.
Appellate Division, Fourth Department
Apr 25, 2008
2008 NY Slip Op 03823
The driver's cross motion to dismiss proposed PIP and APIP claims was denied because the complaint had never been amended to include them. The subrogated insurer sued for property damage, then informed a City Court attorney by letter that it proposed adding benefit-recovery claims and increasing the demand. It never moved to amend under CPLR 3025 (b). Supreme Court removed the action under CPLR 325 (b), denied dismissal, and returned it to City Court under CPLR 325 (d) and 22 NYCRR 202.13 (e). The Appellate Division, Fourth Department, affirmed the challenged denial because the operative complaint contained no PIP or APIP claims.
Appellate Division, Second Department
Apr 8, 2008
2008 NY Slip Op 03199
Provider prevailed
The insurer's peer review reports were inadmissible because their facsimile signatures lacked evidence of placement or authorization. The provider established prima facie entitlement to summary judgment for assigned no-fault benefits. The opposing reports bore computerized, affixed, or stamped physician signatures, without identifying who placed them or indicating proper authorization. They were not subscribed and affirmed as required by CPLR 2106 and therefore did not constitute competent evidence sufficient to raise a triable issue. The Appellate Division, Second Department, affirmed the Appellate Term's order reversing the denial of the provider's motion and granting summary judgment on the complaint.
Appellate Division, First Department
Apr 3, 2008
2008 NY Slip Op 03059
Insurer prevailed
An insurer need not state its medical rationale in the prescribed denial form, and a nurse's medical necessity review is not per se invalid. The provider established mailing and receipt of necessary billing documents and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The insurer nevertheless raised a triable issue concerning denial for lack of medical justification. Its standing objection was waived. The Appellate Division, First Department, reversed the judgment for the provider, vacated it, and denied the provider's summary judgment motion. The separate appeal from the reargument order was dismissed as subsumed in the judgment appeal.
Appellate Term, Second Department
Apr 30, 2008
2008 NY Slip Op 51033(U)
Split result
The provider failed to establish entitlement to summary judgment because it omitted its claim forms and supplied an inadequate business-record foundation. Its supervisor's affidavit did not establish personal knowledge of the provider's recordkeeping practices. The Appellate Term, Second Department, reversed the provider's judgment and denied its motion. It upheld denial of the insurer's cross motion, which asserted EUO nonappearance and breach of a discovery stipulation. The insurer failed to establish prematurity, and CPLR 3214 (b) stayed the provider's time to furnish verified discovery responses while its summary judgment motion was pending. The court did not reach the insurer's remaining contentions; a separate concurrence agreed only with the result and expressed disagreement with propositions in cited cases.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51473(U)
Provider prevailed
The insurer failed to prove the provider's noncompliance with a deposition order through an affidavit based on personal knowledge. A prior order required production of the treating physician by a specified date and provided for dismissal upon noncompliance. After the scheduled deposition did not proceed, the insurer moved to dismiss under that order. Counsel's affirmation asserting that the physician was not produced lacked personal knowledge, rested on unsubstantiated hearsay, and had no probative value. The Appellate Term, Second Department, affirmed denial of the insurer's dismissal motion; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51470(U)
Insurer prevailed
The provider failed to justify protection from a treating physician's deposition through counsel's conclusory assertion that it would be useless. The insurer sought depositions of the provider, assignor, and treating physician, while the provider cross-moved for a protective order. Civil Court compelled production of the physician and denied protection. Under CPLR 3101 (a), material and necessary matters are subject to full disclosure, and the party seeking protection bears the burden of establishing entitlement. Counsel's unsupported assertion did not satisfy that burden. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining the physician's deposition and denial of the protective order.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51472(U)
Provider prevailed
MVAIC's verification request more than a year after receipt of the claims did not toll the 30-day determination period. The arbitrator denied the provider's claims as premature because the assignor had not supplied verification of qualified-person status under Insurance Law article 52, and the master arbitrator upheld that award. Under New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., former 11 NYCRR 65.15 (g) (3) applied before MVAIC qualified the injured person. The Appellate Term, Second Department, reversed, vacated both awards as irrational and contrary to settled law, and remitted for a merits determination; a separate concurrence agreed only with the result.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51468(U)
Split result
The insurer failed to prove that the provider used an improper claims address, leaving a factual issue about the denial's timeliness. The provider also failed to establish entitlement to summary judgment because its owner's affidavit lacked sufficient detail to lay a business-record foundation for the supporting documents. The insurer claimed its denial was timely when measured from receipt at the proper processing office under 11 NYCRR 65-3.5 (b), but its affidavit did not establish that the original address was improper or that the determination period was extended. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed denial of the provider's motion; it did not reach medical necessity.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51469(U)
Insurer prevailed
The insurer's affirmed peer review raised a medical-necessity issue, defeating the provider's summary judgment motion. The provider's papers did not adequately prove mailing of its NF-3 form, but the insurer's claims representative and denial form acknowledged receipt, curing that deficiency. The provider thereby established its prima facie case under Insurance Law § 5106 (a), shifting the burden to the insurer. The insurer established a timely medical-necessity denial and supplied a peer review setting out a sufficient factual basis and medical rationale for its defense. The Appellate Term, Second Department, affirmed denial of the provider's motion.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 51471(U)
Split result
A notice to admit may seek genuineness of denial forms and facts already acknowledged in them, but may not establish disputed ultimate facts. Applying CPLR 3123 (a), the Appellate Term, Second Department, modified the protective order to preserve requests concerning genuine NF-10 denials, nonpayment, and receipt of two claims already acknowledged in the denials. It directed the insurer to answer those items. The court upheld striking an imprecise request that a sum remained outstanding, an unacknowledged claim-receipt request integral to the provider's prima facie case, and a request concerning receipt of the assignment of benefits. The insurer's protective order thus remained effective only as to items 4, 7, and 8.
Appellate Term, Second Department
Apr 29, 2008
2008 NY Slip Op 52729(U)
Insurer prevailed
The master arbitrator's affirmance of denied acupuncture claims had a rational basis where fee-reduction law was unsettled. The provider sought to vacate a master arbitration award upholding denial of first-party no-fault benefits. The Appellate Term, Second Department, found the determination rational and neither arbitrary nor capricious. Until Great Wall Acupuncture v GEICO Gen. Ins. Co., no settled appellate law addressed an insurer's reduction of fees charged by a licensed acupuncturist. The court modified the order denying vacatur to add confirmation of the award, as CPLR 7511 (e) required, and otherwise affirmed in the insurer's favor. It also noted that a special proceeding should terminate in a judgment under CPLR 411.
Appellate Term, Second Department
Apr 25, 2008
2008 NY Slip Op 50909(U)
Provider prevailed
The insurer failed to establish a meritorious defense warranting vacatur of a judgment entered on an unopposed summary judgment motion. The insurer argued that the provider had not complied with CPLR 3215 (f), but CPLR 3215 did not apply to a judgment entered pursuant to an order granting summary judgment. Vacatur under CPLR 5015 (a) (1) required a reasonable excuse and a meritorious defense. Citing 11 NYCRR 65-3.5 (b), the court found no showing that the defenses appeared in timely denials or were exempt from preclusion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's motion to vacate.
Appellate Term, Second Department
Apr 25, 2008
2008 NY Slip Op 50910(U)
Insurer prevailed
The insurer's proof established timely mailing of its denial and raised a factual issue concerning medical necessity. The provider moved for summary judgment on its no-fault claim, and the insurer opposed the motion with a peer review report supporting its medical-necessity denial. Contrary to the provider's contention, the claims representative's affidavit sufficiently described the insurer's standard office mailing practice and procedure. The Appellate Term, Second Department, found that the opposition papers, including the peer review report, created a triable issue on the defense and affirmed the order denying the provider's motion, albeit on different grounds.
Appellate Term, Second Department
Apr 24, 2008
2008 NY Slip Op 50875(U)
Insurer prevailed
The provider's summary judgment motion was barred by an injunction issued in the insurer's separate action against health care providers. The Supreme Court, Nassau County, had enjoined the provider, among others, from commencing suit against the insurer to recover no-fault benefits during that action's pendency. Reviewing the injunction orders attached to the insurer's opposition papers, the Appellate Term, Second Department, agreed that the motion was barred. It reversed the judgment for the provider, vacated the order granting summary judgment, and denied the provider's motion without prejudice.
Appellate Term, Second Department
Apr 24, 2008
2008 NY Slip Op 50877(U)
Provider prevailed
The insurer's illegible peer review reports failed to raise a triable issue of fact concerning medical necessity. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss the complaint. The provider established its prima facie entitlement by proving submission of a statutory claim form stating the fact and amount of the loss and that payment was overdue under Insurance Law § 5106 (a). The burden therefore shifted to the insurer, whose illegible reports did not support a factual dispute. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider's motion for summary judgment.
Appellate Term, Second Department
Apr 21, 2008
2008 NY Slip Op 50902(U)
Insurer prevailed
The provider's summary judgment proof lacked a proper foundation for admitting its supporting documents as business records. In the action for assigned no-fault benefits, the provider relied on an affidavit from its corporate officer. The affidavit did not sufficiently establish the officer's personal knowledge of the provider's practices and procedures, so the provider failed to make a prima facie showing of entitlement to summary judgment. The insurer's appeal challenged only the grant of the provider's motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied that motion.
Appellate Term, Second Department
Apr 14, 2008
2008 NY Slip Op 28157
Insurer prevailed
A provider's claim against MVAIC was time-barred because untimely verification did not postpone accrual. The Appellate Term, Second Department, reversed and granted MVAIC summary judgment dismissing the complaint under CPLR 214 (2). Payment became overdue on July 13, 2000, and suit began in November 2004. Under former 11 NYCRR 65.15 (d) and (g), now 11 NYCRR 65-3.5 and 65-3.8, a verification request after payment became overdue could not toll accrual, even with voluntary compliance. Qualification under Insurance Law § 5202 did not delay MVAIC's obligations. Equitable estoppel failed because MVAIC openly followed its mistaken legal interpretation, without demonstrated knowledge that accrual preceded qualification or an attempt to misrepresent or conceal facts.
Appellate Term, Second Department
Apr 14, 2008
2008 NY Slip Op 50872(U)
Insurer prevailed
A provider's claim against MVAIC was time-barred because a verification request after payment became overdue did not postpone accrual. The Appellate Term, Second Department, reversed and granted MVAIC summary judgment dismissing the complaint under CPLR 214 (2). The claim accrued in November 2001, and suit began in January 2006. Under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (d) and (g), now 11 NYCRR 65-3.5 and 65-3.8, neither voluntary compliance nor unilateral waiver made the belated request timely. Qualification under Insurance Law § 5202 did not defer MVAIC's obligations. Equitable estoppel failed because MVAIC openly followed a mistaken legal interpretation without demonstrated knowledge of earlier accrual or an attempt to misrepresent or conceal facts.
Appellate Term, Second Department
Apr 14, 2008
2008 NY Slip Op 50864(U)
Insurer prevailed
A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor. Under 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services furnished by a treating professional who is neither the entity nor its employee. The provider's claim forms identified the treating professional as an independent contractor, and the provider conceded that status in opposing the insurer's cross motion. The defense was nonwaivable and not subject to preclusion. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint, without reaching any other issue.
Appellate Term, Second Department
Apr 14, 2008
2008 NY Slip Op 50869(U)
Insurer prevailed
The provider's supporting affidavit failed to establish a business-record foundation for its summary judgment documents. The affidavit came from an employee of the provider's former attorney and did not sufficiently establish personal knowledge of the provider's practices and procedures. The provider therefore failed to make a prima facie showing of entitlement to judgment on its no-fault claim. The Appellate Term, Second Department, reversed the judgment, vacated the order granting the provider's summary judgment motion, and denied that motion. It declined the insurer's request to search the record and grant summary judgment to the insurer.
Appellate Term, Second Department
Apr 8, 2008
2008 NY Slip Op 50863(U)
Insurer prevailed
Storing document copies under a retention policy does not establish business-record status without proof of how and when they were generated. The provider supported its summary judgment motion with a billing manager's affirmation that conclusorily described the attached documents as business records. The affirmation did not establish personal knowledge of the provider's office practices and procedures sufficient to admit the documents under CPLR 4518. The provider therefore failed to establish its prima facie entitlement to summary judgment. The Appellate Term, Second Department, reversed the judgment, vacated the order granting the provider's motion, and denied the motion without addressing the insurer's remaining contentions.
Appellate Term, Second Department
Apr 3, 2008
2008 NY Slip Op 28218
Provider prevailed
No-fault attorney's fees are calculated per claim, with the $850 maximum applied to each claim rather than the entire action. The Appellate Term, Second Department, reversed the order and denied the insurer's motion to reduce the provider's fee award after partial summary judgment. Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (e) provided for fees of 20 percent of awarded benefits and interest, subject to the cap. Following LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., the court rejected deference to the Insurance Department's contrary opinion letter and applied the per-claim approach, consistent with Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co. A separate concurrence agreed only with the result.
Appellate Term, Second Department
Apr 3, 2008
2008 NY Slip Op 51266(U)
Insurer prevailed
The provider's second action was barred by res judicata because the prior discovery dismissal was with prejudice. The prior identical action for assigned no-fault benefits had been dismissed under CPLR 3126 (3) for failure to comply with a so-ordered discovery stipulation. Although the dismissal order did not expressly state that it was with prejudice or on the merits, the stipulation provided for preclusion, making the dismissal with prejudice. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.
Trial court, Second Department
Apr 22, 2008
2008 NY Slip Op 50812(U)
Provider prevailed
The insurers failed to establish that the providers' choice of Richmond County was improper for venue. The Civil Court, Richmond County, denied their motions to change venue, permitting renewal with evidence addressing the governing standard. Under Civil Court Act § 305 (b), a corporation is a resident wherever it transacts business, without requiring a nexus between that business and the claim. The assignors' residence elsewhere therefore did not resolve venue. The insurers did not specifically address whether they transacted business in Richmond County, and the providers' telephone-directory advertisement did not permit that determination. Because the insurers bore the burden of disproving proper venue, the motions failed.
Trial court, Second Department
Apr 11, 2008
2008 NY Slip Op 50766(U)
Insurer prevailed
An insurer may request a prescribed NF-3 form as verification even when alternative proof contains substantially the same information. At a trial on stipulated facts, the provider argued that its submitted materials satisfied 11 NYCRR 65-3.5 (f), making payment overdue. The Civil Court, Kings County, read the regulation's first sentence as governing acceptable initial proof and its second as independently authorizing requests for prescribed forms. The parties stipulated that the insurer followed the verification protocols and that the provider had not supplied the requested NF-3 form. The request therefore tolled the insurer's 30-day payment or denial period. The court directed judgment for the insurer dismissing the claim as premature.
