Appellate Division, Second Department
May 27, 2008
2008 NY Slip Op 04867
Split result
An insurer invoking the intoxication exclusion must establish that intoxication proximately caused the accident to obtain summary judgment. On reargument, the Appellate Division, Second Department, substituted a decision denying both sides summary judgment on the first cause of action. The insurer raised factual issues about timely denial through verification requests and about intoxication and causation through uncertified hospital laboratory results considered with a police report. Under Insurance Law § 5103 (b) (2), 11 NYCRR 65-3.8 (g), and 11 NYCRR 65-3.5 (c), requested intoxication information could extend the payment-or-denial period. But even a certified toxicology report under CPLR 4518 (c) would not cure the insurer's failure to establish proximate causation. The conditional grant of its cross motion was therefore replaced with denial.
Appellate Division, Second Department
May 27, 2008
2008 NY Slip Op 04866
The insurer's DWI disposition certificate did not establish that intoxication caused the accident and resulting injuries. Upon renewal, neither side established entitlement to summary judgment. The provider failed to show that the insurer's verification requests were untimely or improper under the intoxication provisions of Insurance Law § 5103 (b) (2), 11 NYCRR 65-3.8 (g), and 11 NYCRR 65-3.5 (c). The insurer's certificate of disposition on the assignor's DWI charge did not establish causation as a matter of law. The Appellate Division, Second Department, affirmed the order, insofar as appealed and cross-appealed from, adhering to denial of the provider's motion and the insurer's cross motion, and did not reach the provider's remaining contention.
Appellate Division, Second Department
May 13, 2008
2008 NY Slip Op 04524
An arbitrator may determine the preclusive effect of a prior arbitration on a later claim for reimbursement of the same payments. The petitioning insurer first lost a priority-of-payment claim, then sought loss transfer against the same insurer for the same accident and payments. Different factual allegations and a different reimbursement theory did not prevent application of res judicata. The claims arose from the same transaction and formed a convenient trial unit. The arbitrator acted within its authority, and the compulsory award under Insurance Law § 5105 was supported by a reasonable hypothesis and was neither arbitrary nor capricious. The Appellate Division, Second Department, affirmed denial of vacatur under CPLR 7511 (b) (1), leaving some remaining contentions unreached.
Appellate Term, Second Department
May 28, 2008
2008 NY Slip Op 51118(U)
Insurer prevailed
The provider's petition to vacate a master arbitration award denying no-fault benefits was denied, and the insurer's cross petition was granted. The Appellate Term, Second Department, affirmed the order denying vacatur and confirming the award. Upon reviewing the record, it found that the master arbitrator's determination upholding the arbitrator's denial of assigned benefits had a rational basis and was not arbitrary and capricious.
Appellate Term, Second Department
May 28, 2008
2008 NY Slip Op 51119(U)
Provider prevailed
MVAIC's appeal from an intermediate summary judgment order was dismissed because entry of judgment terminated the right of direct appeal. The order determined that the provider's affidavit established mailing of the claim forms to MVAIC. Applying Matter of Aho, the Appellate Term, Second Department, dismissed the appeal without addressing the merits of that determination in the provider's action for assigned no-fault benefits.
Appellate Term, Second Department
May 28, 2008
2008 NY Slip Op 51122(U)
Insurer prevailed
The provider's appeal from denial of summary judgment became academic after the action was dismissed. The Civil Court had, in effect, denied the provider's motion as premature and also denied the insurer's cross motion. The provider appealed only the denial of its own motion. Following Fair Price Med. Supply Corp. v ELRAC Inc., the Appellate Term, Second Department, dismissed the appeal because the subsequent dismissal of the action rendered it academic.
Appellate Term, Second Department
May 27, 2008
2008 NY Slip Op 51098(U)
Insurer prevailed
The insurer's unrebutted peer review established lack of medical necessity and supported dismissal of the unpaid portion of the provider's claim. The insurer had paid part of the claim and timely denied the balance based on an affirmed peer review report. That report established prima facie that the services were not medically necessary, and the provider submitted no evidence refuting the showing. 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. Because the insurer did not contest the provider's prima facie case, the court declined to review that determination.
Appellate Term, Second Department
May 27, 2008
2008 NY Slip Op 51099(U)
Insurer prevailed
The provider failed to establish a business-records foundation for the documents supporting its summary judgment motion. In an action to recover assigned first-party no-fault benefits, the provider's employee asserted personal knowledge of its practices and procedures but gave no basis for that conclusory assertion. The documents therefore did not establish the provider's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion.
Appellate Term, Second Department
May 27, 2008
2008 NY Slip Op 51113(U)
Split result
The provider failed to establish a prima facie case because counsel's affirmation did not authenticate the claim form as a business record. The summary judgment papers included the provider's affidavit, counsel's affirmation, and supporting documents, but counsel's attempted authentication did not supply the foundation required by CPLR 4518. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting summary judgment, and denied the provider's motion. It declined the insurer's request to search the record and grant summary judgment dismissing the complaint. A separate concurrence agreed only in the result and expressed disagreement with legal propositions in the cited authorities.
Appellate Term, Second Department
May 1, 2008
2008 NY Slip Op 51034(U)
Insurer prevailed
A master arbitrator's award had a rational basis where the provider's assignment named a different entity and did not establish standing. The arbitrator denied the provider's claim for assigned no-fault benefits on that ground, and the master arbitrator upheld the determination as supported by the evidence. The Appellate Term, Second Department, found the master arbitrator's determination neither arbitrary nor capricious and affirmed the denial of vacatur. It modified the order to confirm the award, as required by CPLR 7511 (e) upon denial of the petition, and noted that a special proceeding should terminate in a judgment under CPLR 411.
Trial court, First Department
May 30, 2008
2008 NY Slip Op 51066(U)
Split result
An insurer's founded belief that a collision was staged raises a factual issue rather than establishing entitlement to summary judgment. The Civil Court, New York County, denied the insurer's motion under CPLR 3212 despite uncontradicted circumstantial evidence. Reading A.M. Medical Services, P.C. v Nationwide Mut. Ins. Co. as barring summary judgment on a staged-accident defense, it found itself constrained by that precedent. The court granted alternative relief under CPLR 3124 only to compel the medical provider's owner and treating practitioner to attend a deposition with documents concerning corporate structure, with preclusion against that provider for nonappearance. It declined to compel the other requested depositions because the insurer had not supplied supporting specifics.
Trial court, Second Department
May 29, 2008
2008 NY Slip Op 51065(U)
Provider prevailed
⚠ Not followed by Glispy v Ameriprise Ins. Co. (2023 NY Slip Op 50338(U))
⚠ Not followed by MSB Physical Therapy, P.C. v Nationwide Ins. (2021 NY Slip Op 50750(U))
The insurer failed to prove timely denial mailing and was precluded from asserting lack of medical necessity. The District Court, Nassau County, denied the insurer's motion under CPLR 3212 and granted the provider's cross motion. The examiner lacked personal knowledge of mailing, did not establish familiarity with procedures for the relevant year, and described no safeguards ensuring proper addressing and mailing. Unproduced computer records did not cure those defects. The IME report also lacked a detailed medical rationale, and the treating practitioner's affidavit raised a factual conflict. The provider authenticated its claim forms, the insurer's admission of timely receipt cured deficient mailing proof, and nonpayment established overdue benefits under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1).
Trial court, Second Department
May 28, 2008
2008 NY Slip Op 51057(U)
Insurer prevailed
A claimant who elects litigation may not switch to arbitration for no-fault damages arising from the same injury. The Supreme Court, Queens County, granted the insurer's application and permanently stayed arbitration. The injured claimant had commenced a Civil Court action for no-fault reimbursement, which was dismissed without prejudice as premature because it preceded the services later submitted to arbitration. The claimant argued that no court action remained pending and that arbitration was unavailable before the surgery occurred. Following Roggio v Nationwide Mut. Ins. Co., the court found the prior election binding, reasoning that switching forums would prolong disputes, burden dispute-resolution resources and invite inconsistent adjudications.
Trial court, Second Department
May 27, 2008
2008 NY Slip Op 28207
Provider prevailed
A preclaim EUO set beyond 30 days after claim receipt must be rescheduled within that period to support a nonappearance defense. The Civil Court, Kings County, entered judgment for the provider after a trial on stipulated facts. The insurer scheduled the assignor's EUO before receiving the claim, but the scheduled date fell more than 30 days after receipt. Although 11 NYCRR 65-1.1 (d) permitted a preclaim EUO, receipt triggered claim-processing obligations under Insurance Law § 5106 (a), 11 NYCRR 65-3.5 and 11 NYCRR 65-3.8 (a) (1). The insurer's failure to reschedule within that period barred its defense despite the assignor's two nonappearances. The provider established receipt of its billing documents and overdue payment.
Trial court, Second Department
May 27, 2008
2008 NY Slip Op 51063(U)
Insurer prevailed
An insurer's follow-up verification request sent on the 30th day after its initial request is timely under 11 NYCRR 65-3.6 (b). The provider sought summary judgment for unpaid medical equipment claims, and the insurer cross-moved for summary judgment and dismissal because requested verification remained outstanding. The provider conceded noncompliance but argued that the insurer had to wait until the 31st day to follow up. The Civil Court, Richmond County, rejected that reading in light of the regulation's purpose of promoting prompt payment of documented claims. Because the unsatisfied requests continued to toll the insurer's time to pay or deny, the court dismissed the complaint as premature and denied the provider's motion.
Trial court, First Department
May 21, 2008
2008 NY Slip Op 28197
Insurer prevailed
The provider's action was premature because it failed to supply properly requested verification concerning its MRI claims. The Civil Court, New York County, granted the insurer summary judgment and dismissed the complaint. The claims examiner's detailed affidavit established timely mailing of initial and follow-up requests; the provider's attorneys did not deny receipt. Requests for medical-necessity letters and a valid provider signature were proper. Because counsel had directed all correspondence to its office as the provider's agent, notice to counsel sufficed under 11 NYCRR 65-3.6 (b). Separate notification applied to verification sought from third parties, rather than the applicant. The unanswered requests prevented the 30-day period to pay or deny from beginning, so benefits were not overdue.
Trial court, Second Department
May 19, 2008
2008 NY Slip Op 28185
A provider PLLC's summary judgment motion was denied because its sole member's suspension left it without authority to prosecute. The District Court, Nassau County, denied that motion without prejudice and denied the insurer's cross motion for dismissal, preclusion or discovery. The subsequent suspension did not establish fraudulent formation under Mallela or 11 NYCRR 65-3.16 (a) (12). Without a transfer to a qualified member, Limited Liability Company Law §§ 1209 and 1210 required dissolution, while section 703 (b) permitted collection during winding up. Under CPLR 2201, the court stayed proceedings for up to six months pending appointment of a proper representative and suspended any interest under 11 NYCRR 65-3.9 (a) from joinder of issue until the stay was lifted.
Trial court, Second Department
May 2, 2008
2008 NY Slip Op 28169
Insurer prevailed
A billing company's incorporation of a provider's records into a claim form does not cure hearsay in the underlying records. The Civil Court, Kings County, entered judgment for the insurer after trial and dismissed the complaint because the provider failed to establish a prima facie case. The billing company's president described preparing and mailing the claim but demonstrated no familiarity with the provider's recordkeeping procedures. Under CPLR 4518 (a), the underlying patient-file documents were not established as business records or admissible under another hearsay exception. Routine reliance and incorporation could not make the resulting claim form admissible. The insurer's acknowledgment of receipt did not concede the facts asserted in the claim.
