Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51761(U)
Split result
The insurer proved two claims medically unnecessary but failed to establish the assignor's EUO nonappearance on the remaining claim. The Appellate Term, Second Department, affirmed dismissal of the first and third causes of action and modified the order, insofar as appealed from, to grant the provider summary judgment on the second. The insurer's receipt concessions cured deficient mailing proof, establishing the provider's prima facie case under Insurance Law § 5106 (a). Unrebutted peer reviews supplied factual bases and medical rationales for denying the MRIs; neither rested on missing documentation. The EUO affidavit was insufficient to prove nonappearance. The matter was remanded for interest and attorney's fees; a partial dissent would have required the provider to prove compliance with the EUO condition.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51757(U)
Split result
The insurer failed to prove IME nonappearance on two claims, but its peer review raised a medical-necessity issue on the third. The Appellate Term, Second Department, modified the order to grant the provider summary judgment on the two IME-denied claims while leaving the peer-reviewed claim for further proceedings. The insurer's affidavit established timely mailing of verification requests and denials through detailed office procedures. The provider's peer-review challenge was first raised on appeal and also lacked merit because the report supplied a factual basis and medical rationale. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a); a partial dissent would have required the provider to prove IME compliance as a condition precedent.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51762(U)
Split result
The insurer's unrebutted IME evidence established lack of medical necessity, while the provider failed to authenticate its claim records. The Appellate Term, Second Department, reversed the judgment and dismissed the fifth through twenty-fourth causes of action. It denied both sides summary judgment on the first and second causes because the provider lacked a business-records foundation and the insurer failed to establish prematurity. The provider retained judgment on the third and fourth causes because the insurer acknowledged payment was due; interest and fees required calculation on remand. The missing conformity certificate under CPLR 2309 (c) and Real Property Law § 299-a (1) should have been disregarded absent objection; other unpreserved objections to affidavit form were waived under CPLR 2101 (f).
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51756(U)
Split result
Mallela's good-cause requirement does not apply to a motion for leave to amend an answer to assert fraudulent incorporation. Applying CPLR 3025 (b), the Appellate Term, Second Department, modified the order to permit that defense because it was not palpably insufficient and no prejudice or surprise was shown. It also compelled the provider's owner's deposition under CPLR 3101, but upheld denial of compelled production of nonparty witnesses and a duplicative standing defense. The court separately reversed the appealed CPLR 3212 (g) determination establishing the provider as the real party in interest: its submissions did not establish a substantial and real interest as a matter of law, and discovery could support standing or eligibility defenses.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51758(U)
Split result
The insurer waived its CPLR 3211 (a) (5) defense, but the Virginia rescission papers raised a triable coverage issue. Under CPLR 3211 (e), the defense was waived because it appeared in neither a timely pre-answer motion nor the answer. The provider was not collaterally estopped by the Virginia order: it took assignments before that proceeding, was not a party, and lacked privity with the insured. Nevertheless, the petition and uncertified rescission order supported a founded belief of no coverage. The Appellate Term, Second Department, modified the order to deny the insurer's dismissal cross motion while affirming denial of the provider's summary judgment motion; a separate concurrence objected to leaving the unchallenged prima facie case unexamined.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51754(U)
Insurer prevailed
The insurer established that it neither transacted business nor resided in Kings County, supporting transfer to the assignor's county. The provider designated venue based on the insurer's residence but offered only a conclusory assertion that it transacted business in Kings County. Applying CCA 305 (b), the Appellate Term, Second Department, affirmed transfer to Queens County. It also affirmed denial of the provider's sanctions request because the venue motion was not frivolous conduct under 22 NYCRR 130-1.1 (a) and (b), and dismissed as academic the appeal from denial of a stay of transfer.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51755(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for default because its attorney did not allege personal knowledge of the asserted excuse. To vacate the default judgment in this assigned no-fault action under CPLR 5015 (a) (1), the insurer had to show both a reasonable excuse and a meritorious defense. The record did not support the excuse, which appeared only in counsel's submission. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion, preserving the provider's default judgment. It passed on no other issue.
Appellate Term, Second Department
Aug 19, 2008
2008 NY Slip Op 51760(U)
Insurer prevailed
The provider's treating doctor failed to authenticate the claim forms or sufficiently state the pertinent facts supporting the claims. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, reversed the judgment, vacated the summary judgment order, and denied the provider's motion. An insurer's admission of receipt does not concede the facts in claim forms, and its admissibility objection was not waived by omission below. The majority left open whether a treating doctor's affirmation could replace admissible claim forms because this affirmation lacked sufficient facts; a dissent found the submissions collectively admissible as business records under CPLR 4518 and would have affirmed.
Trial court, Second Department
Aug 22, 2008
2008 NY Slip Op 28324
Provider prevailed
A medically necessary prescribed procedure remains reimbursable under no-fault even if it was improperly performed. At trial, the insurer's expert conceded that EMG and nerve-conduction testing was necessary as prescribed but argued that incomplete performance made the results useless and therefore medically unnecessary. The Civil Court, Queens County, interpreted Insurance Law § 5102 (a) (1) to require a prospective assessment of necessity from the insured's standpoint when services were rendered, rather than a retrospective assessment of performance. It also found the insurer failed to prove lack of necessity, considering its expert's concession and the provider's expert testimony that the tests could benefit the patient. Judgment was entered for the provider with statutory interest and attorney's fees.
Trial court, Second Department
Aug 20, 2008
2008 NY Slip Op 51775(U)
Insurer prevailed
The insurer's unrebutted expert testimony and peer review established that the cervical MRI was not medically necessary. At trial, the parties stipulated to the provider's prima facie case, timely denial, and admission of the medical records and peer review. The Civil Court, Kings County, credited the insurer's orthopedic expert's explanation that the documented soft-tissue injuries did not warrant an MRI under accepted standards of care. Extensive work for insurers and compensation bore on credibility but did not alone justify disregarding the opinion. The provider offered no rebuttal expert evidence, and cross-examination did not refute the testimony. The court entered judgment for the insurer and dismissed the provider's cause of action.
Trial court, Second Department
Aug 7, 2008
2008 NY Slip Op 51687(U)
Provider prevailed
The provider proved mailing of disputed bills, while the insurer failed to prove timely denials preserving its medical-necessity defense. The District Court, Nassau County, granted the provider summary judgment on all 23 claims, with interest and attorney's fees. The treating chiropractor authenticated the bills and described address checks, postage, and postal delivery. That procedure created a receipt presumption the insurer's denial of receipt did not rebut for three bills. Three other bills were admittedly unpaid and undenied, with benefits overdue under 11 NYCRR 65-3.8 (a) (1). For the remaining 17, the insurer's affidavits conflicted about mailing locations and failed to describe procedures ensuring correct addresses. Without proof of denials within 30 days, the insurer was precluded from asserting lack of medical necessity.
Trial court, First Department
Aug 6, 2008
2008 NY Slip Op 28290
Insurer prevailed
An insurer need not produce the policy to enforce the mandatory 45-day claim deadline when the policy is subject to the new regulations. The Civil Court, New York County, entered judgment for the insurer after trial and dismissed the complaint with prejudice. The parties stipulated that the policy was issued after April 5, 2002, the provider submitted claims more than 45 days after the final service date, and the insurer timely denied them. Under 11 NYCRR 65-1.1 (b) and Insurance Law § 3103 (a), the mandatory endorsement applied even if omitted from the policy. The policy's issuance date, rather than the claim submission date, determined whether the new regulations applied.
