Court of Appeals
Jun 5, 2008
2008 NY Slip Op 04946
Provider prevailed
An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial. The Court of Appeals affirmed the order granting the provider summary judgment. Although the insurer obtained a statement denying receipt of supplies within the claim-processing period, it denied the claims nearly two years after submission. Actual accident-related injuries triggered coverage, so the alleged nondelivery did not fall within the narrow exception for lack of coverage in the first instance. Under Insurance Law §§ 5102 (a) (1) and 5106 (a) and 11 NYCRR 65-3.8 (c), the defense required a timely denial. Two judges dissented, viewing wholly fabricated claims as outside coverage.
Appellate Term, Second Department
Jun 12, 2008
2008 NY Slip Op 51230(U)
Insurer prevailed
The provider's petition to vacate a master arbitration award failed because its supporting document was not a valid attorney affirmation. The purported affirmation neither identified the signing attorney nor affirmed the statements as true under penalties of perjury, as CPLR 2106 required. Although a proper attorney affirmation can submit admissible documentary attachments without personal knowledge, the provider's papers were facially insufficient to warrant relief under CPLR 7511. The Appellate Term, Second Department, reversed the amended order vacating the award and awarding reimbursement, and denied the petition, leaving intact the master arbitrator's award upholding denial of the claim; it did not reach the remaining contentions.
Appellate Term, Second Department
Jun 12, 2008
2008 NY Slip Op 51234(U)
Split result
The provider failed to establish a business-records foundation, and the insurer's IME report did not address the necessity of the supplies. The billing manager's affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the supporting documents as business records. The insurer likewise failed to establish that the medical supplies were unnecessary. Treating the appeal as taken from the judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment to the provider, and denied that motion; the insurer's cross motion remained denied. A separate concurrence relied instead on triable factual issues defeating the provider's motion.
Appellate Term, Second Department
Jun 12, 2008
2008 NY Slip Op 51233(U)
Insurer prevailed
The provider's billing manager's affidavit failed to establish a business-records foundation for its summary judgment documents. The affidavit did not sufficiently establish personal knowledge of the provider's practices and procedures, leaving the provider without a prima facie showing of entitlement to assigned no-fault benefits. The Appellate Term, Second Department, reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion; the majority reached no other issue. A separate concurrence agreed with the result because the insurer had raised triable issues of fact.
Appellate Term, Second Department
Jun 12, 2008
2008 NY Slip Op 51229(U)
Insurer prevailed
The insurer's unrebutted peer review established that the medical supplies were unnecessary and supported dismissal of the provider's claims. The provider had failed to appear for depositions under a stipulation providing for preclusion of medical necessity evidence at trial. Its own summary judgment motion also failed because the corporate officer's affidavit did not establish personal knowledge sufficient to authenticate the supporting business records. The insurer established timely verification requests and a timely denial after verification, and the provider offered no evidence refuting the peer review. Treating the appeal as taken from the judgment under CPLR 5501 (c), the Appellate Term, Second Department, affirmed dismissal and rejected the provider's challenge to the doctor's signature on the report.
Trial court, Second Department
Jun 30, 2008
2008 NY Slip Op 51398(U)
Insurer prevailed
The providers failed to establish entitlement to summary judgment because their biller's affidavit did not supply a business-record foundation. The District Court, Nassau County, denied the providers' motion for payment of assigned no-fault claims. Under CPLR 4518 (a), the affidavit did not identify the biller's actual employer or adequately explain recordkeeping practices, contemporaneous preparation, or regular creation of the attached documents. It also failed to show that ordinary office procedures were followed for the services at issue. Statements that documents were personally mailed and the insurer's denials acknowledging receipt did not cure the foundational deficiencies. The providers therefore failed to establish their prima facie case.
Trial court, Second Department
Jun 27, 2008
2008 NY Slip Op 28287
Insurer prevailed
A hospital's no-fault action was premature because requested verification concerning the driver's alleged intoxication remained outstanding. The Supreme Court, Nassau County, denied the hospital summary judgment and granted the insurer's motion. The insurer requested verification 12 days after receiving the bill and made a timely follow-up request. The court found effective tolling despite describing the initial request as two days beyond the prescribed period. Under Insurance Law § 5103 (b) (2) and 11 NYCRR 65-3.8 (g), proof remained incomplete pending available information about the insured's condition. Information obtainable by the hospital or insured through reasonable effort was available, and 11 NYCRR 65-3.5 (c) entitled the insurer to receive verification directly from the requested parties.
Trial court, Second Department
Jun 26, 2008
2008 NY Slip Op 28273
An insurer's failure to send a denial in duplicate does not invalidate an otherwise sufficient denial absent claimed notice defects or prejudice. The Civil Court, Richmond County, denied both sides' summary judgment motions and directed the action to proceed to trial. The parties limited the issue to whether failure to comply with the duplicate-form requirement of 11 NYCRR 65-3.8 (c) (1) precluded the insurer's medical-necessity defense. The provider challenged neither the denial's content nor the promptness and specificity of notice, and claimed no prejudice from receiving one copy. The court treated the duplicate as redundant and found that invalidating the denial would conflict with the no-fault scheme's purpose of expeditious claim resolution.
Trial court, Second Department
Jun 18, 2008
2008 NY Slip Op 51371(U)
The defendants failed to justify vacating their stipulated limitations waiver or to establish entitlement to dismiss the insurer's action. The no-fault insurer sought recovery from a garage owner and attendant after a pedestrian was struck by a vehicle in their custody. The defendants challenged standing and capacity, asserted release and limitations defenses, and sought relief from a stipulation extending their time to answer. Applying CPLR 2104 and decisions enforcing counsel's stipulations, the Supreme Court, Nassau County, denied relief from the waiver. It also denied summary judgment because the defendants failed to meet their prima facie burden and material factual issues required trial.
Trial court, Second Department
Jun 17, 2008
2008 NY Slip Op 51191(U)
Provider prevailed
The insurer failed to establish collateral estoppel or entitlement to summary judgment on its staged-accident defense. The District Court, Nassau County, denied the insurer's summary judgment motion seeking dismissal of the provider's assigned no-fault claim. Prior orders staying UM arbitrations were entered on default, so the staged-accident issue was not actually litigated under Kaufman v Eli Lilly and Company. The insurer also failed to prove when the assignment occurred, as required to establish privity under Gramatan Home Investors Corp. v Lopez. Its investigator relied on hearsay and documents lacking evidentiary foundations, and its transcripts were unsigned, unverified, and uncertified. Even if admissible, the submissions supported a founded belief but left factual inferences and credibility questions for the factfinder.
Trial court, Second Department
Jun 13, 2008
2008 NY Slip Op 28252
Insurer prevailed
A provider may not challenge the reliability of its own medical records relied on by an insurer's peer reviewer. The Civil Court, Queens County, entered judgment for the insurer after trial and dismissed the complaint for lack of medical necessity. The parties stipulated to the peer review's admission and the reviewer's expertise, but the underlying records were not admitted. Following Cross Cont. Med., P.C. v Allstate Ins. Co., the court rejected the provider's reliability challenge. The reviewer's unrebutted testimony that the materials sufficed for a peer review established professional acceptability under Hambsch v New York City Tr. Auth. The insurer established its defense, and the provider offered no rebuttal evidence beyond cross-examination and its admissibility argument.
Trial court, Second Department
Jun 12, 2008
2008 NY Slip Op 51177(U)
Split result
The insurer failed to show potential merit in its workers' compensation defense sufficient to require referral to the Board. The Civil Court, Richmond County, denied summary judgment dismissing the provider's no-fault action. Under Insurance Law § 5102 (b), 11 NYCRR 65-3.16 (a) (9), and Workers' Compensation Law § 142 (7), the Board has primary jurisdiction over disputed course-of-employment questions. The police accident report did not sufficiently establish employment, while the NF-3 indicated that the injury was unrelated to employment. The court nevertheless granted leave under CPLR 3025 (b) to add a subject matter jurisdiction defense, absent claimed prejudice. It left legal coverage and employment questions for trial and reserved decision on the provider's prima facie case.
