Appellate Division, Second Department
Jul 1, 2008
2008 NY Slip Op 06146
Insurer prevailed
The insurer raised a factual issue about the provider's compliance with timely verification requests for toxicology information. The provider initially established entitlement to summary judgment on the first cause of action by showing that prescribed billing forms were mailed to and received by the insurer and that payment was overdue. The insurer's opposition, however, raised a triable issue regarding compliance with its timely and properly sent requests for information concerning the assignor's toxicology report. Applying Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (2), the Appellate Division, Second Department, reversed the order, insofar as appealed from, and denied the provider's motion for summary judgment on that cause of action.
Appellate Term, Second Department
Jul 30, 2008
2008 NY Slip Op 28291
Split result
The insurer established grounds for discovery concerning the provider's possible fraudulent incorporation, including corporate tax information. The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel the certificate of incorporation and specified interrogatory responses. Failure to object timely under CPLR 3122 required disclosure except of palpably improper or privileged material; demands concerning precluded defenses remained improper. Detailed reasons for suspected ineligibility under Mallela justified corporate discovery, and special circumstances warranted corporate tax disclosure under CPLR 3101 (a). The court upheld denial of the owner's deposition because its noticed location outside New York City violated CPLR 3110, and upheld protection of personal tax returns and bank records because the insurer had not established their necessity given available corporate disclosure.
Appellate Term, Second Department
Jul 30, 2008
2008 NY Slip Op 51682(U)
Split result
The provider failed to establish a business-record foundation for its claim forms, and the insurer failed to prove timely verification mailings. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the provider's summary judgment motion, and denied that motion, while leaving the insurer's cross motion denied. The billing manager's conclusory affirmation did not establish personal knowledge of office practices sufficient to admit the supporting documents. The insurer's litigation examiner likewise failed to establish a standard office mailing practice ensuring proper addressing and mailing of verification requests. The court left open whether attorney's fees constituted a separate cause of action; a partial dissent would have granted the insurer summary judgment on the second through seventh claims.
Appellate Term, Second Department
Jul 30, 2008
2008 NY Slip Op 51681(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for its default through counsel's unsupported claims of law office failure. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion to vacate the default judgment and compel acceptance of a late answer. Although CPLR 2005 permits acceptance of law office failure, counsel must provide supporting facts in evidentiary form and a detailed explanation of the oversights. Counsel did not explain why the office failed to answer timely, and assertions that the insurer delayed forwarding, lost, or misplaced the summons and complaint lacked personal knowledge and probative value. The court passed on no other issue.
Appellate Term, First Department
Jul 28, 2008
2008 NY Slip Op 51612(U)
Insurer prevailed
The provider failed to justify its three-month delay in submitting claims to MVAIC after learning that the vehicle's insurance had been canceled. MVAIC established that the claims were submitted late, denied them on that ground, and afforded an opportunity for reasonable justification under 11 NYCRR 65-3.3 (e). Even assuming inadvertent submission to another insurer justified the initial delay under 11 NYCRR 65-3.5 (l), the provider offered no reasonable justification for the subsequent three-month interval under 11 NYCRR 65-1.1. The Appellate Term, First Department, reversed the order and granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Jul 28, 2008
2008 NY Slip Op 51615(U)
Provider prevailed
The insurer failed to prove denial within 30 days and was precluded from asserting excessive-fee and medical-necessity defenses. The provider made a prima facie showing of entitlement to summary judgment for assigned no-fault benefits under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). In opposition, the insurer submitted no competent proof that its denial forms were timely mailed. The Appellate Term, First Department, reversed the order denying the provider's motion without prejudice to renewal, granted summary judgment to the provider, and directed entry of judgment.
Appellate Term, First Department
Jul 28, 2008
2008 NY Slip Op 51616(U)
Provider prevailed
The insurer failed to raise a medical-necessity issue because it submitted neither the IME report underlying its denials nor other supporting proof. The provider established entitlement to partial summary judgment through proof that the prescribed billing forms were mailed and received and that benefits were overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The Appellate Term, First Department, reversed the order denying the provider's motion, granted partial summary judgment, and directed entry of judgment.
Appellate Term, Second Department
Jul 25, 2008
2008 NY Slip Op 52697(U)
Provider prevailed
The insurer's stamped peer reviews failed to raise a triable issue because the record did not establish the doctor's authorization. On reargument, the Appellate Term, Second Department, affirmed the judgment for the provider entered on summary judgment. Counsel conceded the signatures were stamped; no evidence showed placement by or at the reviewing doctor's direction, leaving the reports inadmissible under CPLR 2106. Assuming without deciding that assignment proof was required, claim forms stating that the assignor's signature was on file sufficed because the insurer had not timely sought verification. One claim lacked a corresponding denial, with unexplained discrepancies in component amounts. The court declined to review other aspects of the prima facie showing; a separate concurrence favored reviewing that showing even without an insurer's challenge.
Appellate Term, Second Department
Jul 25, 2008
2008 NY Slip Op 52698(U)
Provider prevailed
The insurer's unsigned affidavit failed to prove a timely denial, precluding its defense that the provider submitted the claim late. On reargument granted on its own motion, the Appellate Term, Second Department, vacated its prior decision, reversed the order, and granted the provider summary judgment. The provider established submission of a claim stating the fact and amount of loss and overdue payment under Insurance Law § 5106 (a). The no-fault supervisor's unsigned affidavit had no probative value and did not establish denial within the 30-day period under 11 NYCRR 65-3.8 (c). The insurer was therefore precluded from asserting submission more than 45 days after services. The matter was remanded for statutory interest and attorney fees.
Appellate Term, Second Department
Jul 22, 2008
2008 NY Slip Op 51678(U)
Provider prevailed
The provider's attorney's fee award on each of eight claims, rather than their aggregate sum, was affirmed after a nonjury trial. The Appellate Term, Second Department, rejected the insurer's appeal and affirmed the judgment for the reasons stated in Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co.
Appellate Term, Second Department
Jul 18, 2008
2008 NY Slip Op 51502(U)
Provider prevailed
The insurer failed to prove timely mailing of verification requests and denials, precluding its medical-necessity defense. Its no-fault examiner's affidavit did not sufficiently describe office procedures ensuring proper addressing and mailing. The Appellate Term, Second Department, affirmed the judgment awarding the provider partial summary judgment because the insurer raised no triable issue on those claims. The majority declined to address the provider's prima facie showing because that issue had neither been raised nor decided below and was not raised on appeal. A dissent would have denied the provider's cross motion, finding the mailing proof sufficient and objecting to declining review of the prima facie showing.
Appellate Term, First Department
Jul 16, 2008
2008 NY Slip Op 51406(U)
Insurer prevailed
The provider's claim was premature because it undisputedly failed to respond to verification requests presumed timely mailed and received. The insurer's documentary submissions established the mailing and receipt presumption under Nassau Ins. Co. v Murray. Under 11 NYCRR 65-3.8 (b) (3), an insurer need not pay or deny until it receives all relevant requested verification. No triable issue existed as to whether the provider supplied the information. The Appellate Term, First Department, reversed the order granting the provider summary judgment, denied that motion, and, upon searching the record, awarded the insurer summary judgment dismissing the action.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51541(U)
Insurer prevailed
A provider that knows the identities of the driver and vehicle owner must exhaust its remedies against them before seeking relief from MVAIC. The assignor was struck by a taxicab whose driver and owner were known, making the provider's claim against MVAIC premature. Following Hauswirth v American Home Assur. Co., the provider could pursue MVAIC under Insurance Law § 5218 (c) after unsuccessfully exhausting those remedies. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's cross motion for summary judgment dismissing the complaint, reaching no other issue.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51529(U)
Split result
The insurer established entitlement to corporate eligibility discovery, but failed to justify disclosure of the owner's personal tax returns. The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel the certificate of incorporation, specified interrogatory answers, and the owner's deposition, otherwise affirming. Untimely objections under CPLR 3122 left only privilege and palpable impropriety available; demands concerning precluded defenses remained improper. Detailed reasons to suspect fraudulent incorporation under Mallela supported corporate discovery, and special circumstances justified corporate tax disclosure under CPLR 3101 (a). Personal returns required a strong showing of indispensability and unavailability from other sources, which was lacking given available corporate records; a partial dissent would have compelled those returns too.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 28271
Provider prevailed
The insurer's follow-up verification demand, mailed 27 days after its initial demand, was premature and did not toll the claim determination period. The Appellate Term, Second Department, affirmed summary judgment for the provider and denial of the insurer's cross motion under 11 NYCRR former 65.15 (e) (2), now 11 NYCRR 65-3.6 (b). The insurer's failure to pay or deny precluded its excessive-fee defense. A medical equipment provider need not prove its supply costs to establish a prima facie case under Insurance Law § 5106 (a); the court did not otherwise review that showing. It also rejected limiting interest to accrual after suit under 11 NYCRR 65-3.9 (a), (c). A dissent disputed the prima facie showing and found the verification requests effective.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 28269
Provider prevailed
MVAIC's 30-day period to deny a claim or request verification runs from receipt of the claim, regardless of a qualification determination. The Appellate Term, Second Department, affirmed the denial of MVAIC's motion for summary judgment dismissing the provider's action as premature. Under Insurance Law § 5202 (b), the assignor's status as a qualified person did not depend on MVAIC's receipt of a police report. The record also did not support MVAIC's contention that the assignor failed to satisfy other reporting requirements under Insurance Law article 52. MVAIC therefore failed to establish prima facie entitlement to dismissal.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51533(U)
Split result
Neither the provider's business-records proof nor MVAIC's challenge to the assignor's qualified-person status warranted summary judgment. The provider's officer failed to establish personal knowledge of its practices and procedures sufficient to authenticate the supporting documents as business records. MVAIC likewise failed to establish entitlement to dismissal: qualified-person status under Insurance Law § 5202 (b) did not depend on receipt of a household affidavit or written proof of lack of insurance. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its cross motion, and denied that cross motion, while leaving the denial of MVAIC's motion intact.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51537(U)
Insurer prevailed
The provider's challenge to an allegedly inadequate judgment failed because unrebutted peer-review testimony established lack of medical necessity. The disputed services were nerve testing of the assignor's upper and lower extremities. At the nonjury trial, the parties stipulated to the provider's prima facie case and proper, timely denials, and the insurer's doctor's deposition testimony was admitted under CPLR 3117 (a) (4). That testimony established medical nonnecessity for the services at issue on appeal, and the provider offered no rebuttal evidence. Applying the fair-interpretation-of-the-evidence standard for nonjury findings, the Appellate Term, Second Department, affirmed the judgment and rejected the provider's demand for a greater recovery.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51540(U)
Provider prevailed
The insurer's peer review failed to raise a medical-necessity issue because its facsimile signature lacked proof of the doctor's authorization. The Appellate Term, Second Department, affirmed the judgment entered on the provider's summary judgment motion. Under CPLR 2106, the record did not establish that the doctor placed the electronically stamped signature on the report or directed its placement. The provider properly raised that defect in reply because the report first appeared in the insurer's opposition. An additional affirmation annexed to the insurer's appellate reply brief could not be considered because it was outside the record. A dissent would have denied the provider's motion, reasoning that the insurer first had an opportunity on appeal to respond to the signature objection.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51552(U)
Provider prevailed
The provider's prior discovery dismissal did not bar a second action because it did not constitute a determination on the merits. The insurer sought summary judgment on res judicata grounds after an identical action was dismissed under CPLR 3126 (3) for noncompliance with a so-ordered discovery stipulation. Applying Maitland v Trojan Elec. & Mach. Co., the court found that the noncompliance had not resulted in dismissal with prejudice, preclusion, or summary judgment effectively closing the provider's proof. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, allowing the provider's second action to proceed.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51530(U)
Provider prevailed
The insurer failed to establish continued EUO tolling after receiving verification, rendering its denial untimely and precluding fraudulent billing. The provider established submission of its claim and overdue payment under Insurance Law § 5106 (a). The insurer received medical-necessity verification on November 23, but the record did not show an additional EUO request within 15 days as required by 11 NYCRR 65-3.5. Its denial was not mailed until January 4. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment, and remanded for statutory interest and attorney's fees; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51531(U)
Insurer prevailed
Provider eligibility requirements under 11 NYCRR 65-3.16 (a) (12) apply retroactively to services rendered before April 4, 2002. The provider sought payment for psychological services rendered in 1999, and the insurer cross-moved for summary judgment based on fraudulent incorporation. Following Allstate Ins. Co. v Belt Parkway Imaging, P.C., the court rejected the lower court's conclusion that the regulation was inapplicable. The insurer established that the provider performed the services in violation of Limited Liability Company Law §§ 1203 and 1207, making it ineligible for reimbursement. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51534(U)
Insurer prevailed
The provider's discovery appeal was dismissed because the challenged order decided a motion that had not been made on notice. The order required an assignor's authorization to obtain the insurer's no-fault file and placed reproduction costs on the provider. Under UDCA 1702 (a) (2), no appeal as of right lay from that order. CPLR 2211 requires service of a notice of motion or order to show cause, neither of which was served. The Appellate Term, Second Department, dismissed the appeal and declined to treat the notice of appeal as an application for leave under UDCA 1702 (c).
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51538(U)
Split result
The insurer's IME report established lack of medical necessity for one supply claim, but its peer review did not establish that defense for another. Civil Court denied both parties' summary judgment motions, and the insurer appealed the denial of its cross motion. The insurer proved timely mailing of its denials through its standard office practice. Its affirmed IME report showed that the supplies covered by that denial were medically unnecessary, and the provider offered no rebuttal evidence. The affirmed peer review failed to establish medical nonnecessity for the separate claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the IME-based claim and otherwise affirmed.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51551(U)
Insurer prevailed
The insurer established a meritorious defense through an investigator's affidavit raising issues about who operated and controlled the provider. The provider had obtained a default judgment for assigned no-fault benefits, and Civil Court denied vacatur because the insurer's papers did not establish a meritorious defense. That defense was the sole issue on appeal. The Appellate Term, Second Department, reversed, granted the insurer's motion to vacate the judgment and extend its time to appear, and directed service and filing of an answer within 20 days of the appellate order.
Appellate Term, Second Department
Jul 10, 2008
2008 NY Slip Op 51557(U)
Provider prevailed
The insurer's verification request, made two business days late, shortened its denial period to 28 days and rendered its denial untimely. Under 11 NYCRR 65.15 (d) (2), additional verification had to be requested within 10 business days; the insurer requested it after 12. Applying 11 NYCRR 65.15 (g) (3) and (10), the court found that verification received May 16 required payment or denial by June 13. The June 14 denial precluded the medical-necessity defense. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider summary judgment on the unpaid claim balance, and remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51447(U)
Insurer prevailed
The provider's claim against MVAIC was barred by the three-year limitations period measured from the pleaded payment due date. The complaint alleged submission in June 1997 and sought interest beginning 30 days later, implicitly placing the due date in July 1997 under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (g), now 11 NYCRR 65-3.8. The action commenced in March 2003 was untimely under CPLR 214 (2). MVAIC did not have to show that verification had not tolled the due date as part of its prima facie case. The Appellate Term, Second Department, reversed the order and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 28259
Provider prevailed
The insurer's peer review report failed to raise a medical-necessity issue because its stamped signature lacked proof of the doctor's authorization. The Appellate Term, Second Department, affirmed the judgment awarding the provider partial summary judgment on its first cause of action. Under CPLR 2106, the report was inadmissible because nothing showed that the reviewing doctor placed the electronic facsimile signature on it or directed its placement. The provider properly identified that defect in reply because the report was first submitted in opposition. An affirmation annexed to the insurer's appellate brief could not be considered because it was outside the record; the provider's prima facie showing was unchallenged.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51450(U)
Provider prevailed
The insurer failed to justify consolidation, establish provider ineligibility as a matter of law, or support discovery after the notice of trial. The Appellate Term, Second Department, affirmed denial of the insurer's motion. Consolidation with 11 other actions failed because common questions were not demonstrated under CPLR 602 (a). Under CPLR 3212 (b) and 4540, the insurer did not establish that the owner's alleged lack of medical licensure barred reimbursement under 11 NYCRR 65-3.16 (a) (12) and Business Corporation Law §§ 1507 and 1508. Discovery failed under 22 NYCRR 208.17 (d) because no affidavit specified facts justifying pretrial proceedings almost a year after the notice of trial; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51460(U)
Split result
The insurer obtained dismissal of an unverified claim as premature but failed to prove IME nonappearance on a separate claim. Affidavits established timely mailing of verification requests and IME scheduling letters through a standard office practice. The provider did not demonstrate that it supplied the requested verification for the first claim, which therefore was not overdue. For the IME-based claim, the insurer supplied no proof from anyone with personal knowledge of the assignor's nonappearance at two IMEs. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion on that claim, otherwise affirming dismissal of the verification-based claim and denial of the provider's summary judgment motion; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51453(U)
Provider prevailed
CPLR 5021 (a) (2) permits a money judgment to be deemed satisfied only upon full payment of the judgment. The insurer paid the reduced settlement sums after the stipulated 30-day deadline, by which time the provider had entered judgment for the full demand with interest and fees. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion to deem the judgment satisfied. The stipulations were a variant of a consent judgment, allowing reduced payment if timely tendered, rather than unenforceable penalty clauses. The insurer also failed to demonstrate sufficient reason to vacate the judgment.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51444(U)
Split result
The provider failed to lay a business-record foundation, and the insurers failed to prove timely mailing of verification requests and denials. The affidavit of the provider's counsel's employee did not establish personal knowledge of the provider's practices sufficient to admit its supporting documents. The insurers' examiner established neither personal mailing nor an office procedure supporting a mailing presumption. Without proof of denial within 30 days under 11 NYCRR 65-3.8 (c), the insurers did not establish that their medical-necessity defense remained available. The Appellate Term, Second Department, modified the order to deny the provider's cross motion for summary judgment and otherwise affirmed denial of the insurers' motion; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51448(U)
Provider prevailed
The insurer's investigator failed to establish a fact or founded belief that the assignor's injuries did not arise from an insured incident. The provider's biller supplied a sufficient business-record foundation, establishing its prima facie entitlement to summary judgment. Although the insurer missed the 30-day payment-or-denial period under 11 NYCRR 65-3.8 (c) and failed to establish timely verification tolling under 11 NYCRR 65-3.5 (a) and (b), its intentional-loss coverage defense was not precluded under Central Gen. Hosp. v Chubb Group of Ins. Cos. The investigator's affidavit nevertheless failed to support that defense. The Appellate Term, Second Department, affirmed the grant of the provider's motion and denial of the insurer's cross motion.
Appellate Term, Second Department
Jul 8, 2008
2008 NY Slip Op 51459(U)
Provider prevailed
CPLR 3015 (e)'s license-pleading requirement does not apply to a provider's action against a no-fault insurer because the insurer is not a consumer. The insurer cross-moved for summary judgment, asserting that the medical equipment provider was unlicensed and had failed to identify its license in the complaint. The assertion of nonlicensure was conclusory and unsupported by factual evidence. CPLR 3015 (e) applies only to actions against consumers arising from businesses subject to the specified licensing requirements. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 1, 2008
2008 NY Slip Op 51417(U)
Insurer prevailed
The insurer's denial preserved its medical-necessity defense, and an unrebutted affirmed peer review established that the supplies were unnecessary. The provider challenged the denial because portions of the form were omitted. The omitted sections were irrelevant to the claim, the form specifically identified lack of medical necessity based on a peer review, and the insurer proved Department of Insurance approval of the form. The defense was therefore not precluded. The insurer's cross-motion papers established medical nonnecessity without rebuttal. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 1, 2008
2008 NY Slip Op 51418(U)
Insurer prevailed
The insurer's denial was not fatally defective, and its unrebutted affirmed peer review established lack of medical necessity for the supplies. Although portions of the denial form were omitted, those sections were irrelevant to the claim. The form promptly and specifically identified the ground for denial, and the insurer established that the Department of Insurance had approved it. The insurer's sworn submissions, including the peer review, made a prima facie showing of medical nonnecessity that the provider did not rebut. 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.
Trial court, Second Department
Jul 25, 2008
2008 NY Slip Op 28275
Split result
The insurer failed to prove its MRI fee reduction, and the provider failed to establish a business-record foundation for its claim form. The District Court, Nassau County, denied both sides summary judgment. The insurer supplied no admissible proof supporting application of the X-ray fee rule to cervical and lumbar MRIs. The provider's counsel's employee did not establish knowledge of the provider's recordkeeping. Verification tolled the denial period under 11 NYCRR former 65.15 (d) and (e) even though the eventual denial concerned fees rather than medical necessity. The court dismissed the medical-necessity defense as waived and conclusory, and the policy-condition defense as conclusory; fee-schedule defenses remained. It denied the provider's sanctions request under 22 NYCRR 130-1.1.
Trial court, Second Department
Jul 15, 2008
2008 NY Slip Op 52715(U)
Insurer prevailed
The insurer obtained a conditional stay of no-fault proceedings and payments based on evidence of fraudulent provider ownership. The Supreme Court, Suffolk County, found a cooperating physician's affidavit established likely success, irreparable harm, and favorable equities. The injunction covered defaulting defendants; appearing defendants could avoid it by documenting licensed medical ownership and control. An undertaking was required under CPLR 6312 (b). Applying Mallela and 11 NYCRR 65-3.16 (a), the court denied dismissal under CPLR 3211 (a) (7) of declaratory, fraud, unjust-enrichment, and punitive-damages claims supported by allegations and affidavits. It also denied a defendant's venue motion: the insurer maintained a principal office in Suffolk County, and the showing of witness inconvenience under CPLR 510 (3) was insufficient.
Trial court, Second Department
Jul 1, 2008
2008 NY Slip Op 51601(U)
Insurer prevailed
The insurer established lack of medical necessity for psychiatric evaluation and testing through unrebutted expert testimony. The District Court, Nassau County, rendered judgment for the insurer after a trial limited by stipulation to medical necessity. The insurer had to establish a factual basis and medical rationale showing that the services departed from generally accepted professional standards. Its expert testified that the interview occurred 13 days after the accident rather than the generally accepted six weeks, risking a false positive, and that a proper interview could have identified mild anxiety without subsequent testing. The provider called no witnesses, and its cross-examination did not refute the expert's testimony or supply rebuttal evidence of medical necessity.
Trial court, First Department
Jul 1, 2008
2008 NY Slip Op 51357(U)
A liability policy's exclusion for injury to contractors and their employees includes employees of subcontractors. The Supreme Court, New York County, granted the primary insurer summary judgment under CPLR 3212, declaring no duty to defend or indemnify the general contractor in a construction worker's personal injury action, with a similar declaration for the building owner pursuant to stipulation. It rejected the umbrella insurer's material misrepresentation defense under Insurance Law § 3105 (c) because the record did not establish materiality or reliance on the primary policy's exclusions. Both cross motions concerning umbrella coverage were denied without prejudice pending discovery. Although notice followed the accident by nearly 18 months, the general contractor's asserted lack of knowledge required investigation.
