Appellate Division, Second Department
Sep 30, 2008
2008 NY Slip Op 07211
Insurer prevailed
The insurer established that acupuncture reimbursement was properly limited to charges for similar procedures under existing fee schedules. The provider's submissions showed timely partial denials on prescribed forms that were neither factually insufficient nor vague, defeating its prima facie showing. The insurer proved that no acupuncture fee schedule existed in 2001 and that its payments complied with 11 NYCRR 68.5 (b) and Insurance Law § 5108. The provider raised no factual issue regarding the reimbursement limit. Its challenge to the evidence supporting the chosen comparable procedure was unpreserved. The Appellate Division, Second Department, affirmed the Appellate Term's order sustaining denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Division, Second Department
Sep 9, 2008
2008 NY Slip Op 06813
Insurer prevailed
The insurers raised a triable issue of fraudulent incorporation despite evidence of physician ownership and oversight of the provider. The physician and radiology practice showed licensed sole ownership, medical supervision, and sole signature authority over the practice's bank account. The insurers' opposition raised a factual issue about actual control by a management company owned by unlicensed individuals. Under Mallela and 11 NYCRR 65-3.16 (a) (12), insurers may withhold reimbursement for willful, material licensing violations. Financial documents were material and necessary under CPLR 3101 (a), without a separate good-cause showing. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the defendants' summary judgment motion on all three causes of action and granting the insurers' requested financial disclosure.
Appellate Term, Second Department
Sep 29, 2008
2008 NY Slip Op 51963(U)
Insurer prevailed
The provider's notice of trial was properly vacated because its certificate of readiness incorrectly stated that discovery was complete or waived. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and directing complete, meaningful responses to discovery demands and an examination before trial concerning alleged fraudulent incorporation. The insurer was not precluded from asserting that defense under Multiquest, P.L.L.C. v Allstate Ins. Co. It was also entitled to examine the provider before trial despite having served a separate demand for discovery and inspection of documents.
Appellate Term, Second Department
Sep 29, 2008
2008 NY Slip Op 51954(U)
Provider prevailed
The insurer failed to raise a triable issue on its IME nonappearance defense because it lacked admissible proof from a person with knowledge. The Appellate Term, Second Department, reversed the order denying the provider's summary judgment motion, granted the motion and remanded for calculation of statutory interest and attorney fees under Insurance Law § 5106 (a) and its implementing regulations. Although the insurer denied the claims for the assignors' failures to attend scheduled IMEs, it supplied no admissible evidence from anyone with personal knowledge of those nonappearances. The court did not review the provider's prima facie showing because the insurer challenged it neither below nor on appeal.
Appellate Term, Second Department
Sep 29, 2008
2008 NY Slip Op 51956(U)
Insurer prevailed
The provider's appeal was dismissed because the challenged order was entered on its default in opposing MVAIC's dismissal cross motion. The provider submitted no opposition to the cross motion asserting the statute of limitations. The resulting order dismissed the complaint and denied the provider's summary judgment motion as moot. Under CPLR 5511, no appeal lies from an order entered on the appealing party's default. The Appellate Term, Second Department, therefore dismissed the appeal.
Appellate Term, First Department
Sep 24, 2008
2008 NY Slip Op 51928(U)
Provider prevailed
The insurer's unsigned peer-review report was inadmissible and failed to raise a triable issue on medical necessity. The Appellate Term, First Department, reversed the denial of the provider's summary judgment motion, granted the motion and directed entry of judgment. The provider proved mailing and receipt of the prescribed billing forms and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The peer-review report did not comply with CPLR 2106. The insurer also supplied no competent evidentiary proof for its fraudulent-incorporation defense under Mallela or its defense that the charges did not conform to the workers' compensation fee schedule.
Appellate Term, Second Department
Sep 19, 2008
2008 NY Slip Op 28350
Insurer prevailed
A timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete. The Appellate Term, Second Department, affirmed the order, insofar as appealed from and reviewed, vacating the provider's notice and requiring a deposition. The provider never appeared for the noticed deposition. Without proof of earlier service, receipt on September 10 and motion service on October 1 established timeliness under 22 NYCRR 208.17 (c) and General Construction Law § 25-a. Document demands did not foreclose a deposition under CPLR 3102. The court upheld denial of sanctions and dismissed the appeal concerning a supplemental demand under CPLR 5511 because the provider was not aggrieved, leaving the propriety of the forthcoming rephrased demand unaddressed.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 28342
Insurer prevailed
The 30-day examination deadline in 11 NYCRR 65-3.5 (d) does not apply to EUOs. The provider challenged summary judgment dismissing its claims because the initial EUO was set more than 30 days after receipt of the claim. The Appellate Term, Second Department, explained that an amendment deleted EUOs from that deadline, although verification must proceed expeditiously under 11 NYCRR 65-3.2 (c). The insurer established an endorsement authorizing EUOs, timely mailing of scheduling letters and the assignor's nonappearances; the initial examination date was not unreasonable. The court affirmed the order, insofar as appealed from, granting the insurer's cross motion and dismissing the action as premature because the claims were not overdue.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51867(U)
Split result
The insurer's unrebutted peer review established lack of medical necessity for two claims, but it failed to prove another charge excessive. In this action for assigned no-fault benefits, the Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the second and third causes of action. The affirmed peer review report established that the supplies underlying those claims were medically unnecessary. The provider waived its objection to the report's stamped facsimile signature by raising it for the first time on appeal. Summary judgment remained denied as to the unpaid balance of the first claim because the insurer did not establish that the fee was excessive.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 28341
Insurer prevailed
An insurer's failure to supply a requested peer review report does not preclude its medical-necessity defense. The provider sought summary judgment, asserting that the insurer had ignored written requests for the reports underlying its denials. The insurer supplied affirmed reports in opposition that specifically supported lack of medical necessity. The Appellate Term, Second Department, declined to impose preclusion because 11 NYCRR 65-3.8 (b) (4) provides no sanction or deadlines for requesting or supplying reports. Creating such a sanction would require a regulatory scheme the regulations did not establish. The court affirmed denial of the provider's motion because the reports raised a triable issue of medical necessity.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51866(U)
Insurer prevailed
The provider failed to establish its prima facie case because its affidavit did not lay a business-records foundation. The provider sought summary judgment on claims for assigned first-party no-fault benefits. Its officer and medical billing manager submitted an affidavit that did not establish personal knowledge of the provider's practices and procedures sufficient to authenticate the documents attached to the motion. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, affirmed the denial of the provider's motion. The deficient affidavit prevented the provider from meeting its initial summary judgment burden.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51868(U)
The provider could not obtain summary judgment against the named insurer on papers served on a different insurer without proof they were one entity. The Appellate Term, Second Department, modified the order to deny both the provider's motion and the answering insurer's cross motion without prejudice, otherwise affirming. The claim had been submitted to the answering insurer, which asserted it had been incorrectly sued under the named insurer's name. The provider neither amended the caption nor joined the answering insurer. Its motion sought judgment against the named insurer but was served on the answering insurer's attorneys. The cross motion also failed because the answering insurer was not formally a party and sought dismissal of a complaint against another entity.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51874(U)
Provider prevailed
The provider was entitled to compel the insurer's deposition under CPLR 3101 (a) in its action for assigned no-fault benefits. The Appellate Term, Second Department, reversed the order denying the provider's motion and granted it to the extent of directing the insurer to appear for a deposition within 30 days of the appellate order. CPLR 3101 (a) permits full disclosure of material and necessary matters regardless of the burden of proof. Reasonable discovery includes facts bearing on the controversy that assist trial preparation by sharpening issues and reducing delay.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51865(U)
Insurer prevailed
A provider must submit claims to MVAIC within 45 days of the services rendered, subject to a reasonable justification for delay. After a nonjury trial on stipulated facts, the provider's complaint was dismissed as untimely. The sole issue below was whether the 45-day submission limit in 11 NYCRR 65-1.1 applied to MVAIC. Following Nir v MVAIC, the Appellate Term, Second Department, affirmed the judgment, recognizing that untimely submission could be excused upon reasonable justification under 11 NYCRR 65-3.3 (e).
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 28343
Insurer prevailed
The provider failed to justify service of a trial subpoena beyond New York City and adjoining counties under CCA 1201. Seeking an insurer employee's trial testimony in an assigned-benefits action, the provider moved for leave to serve the insurer outside the city. The Appellate Term, Second Department, affirmed denial because the moving papers neither established that the interests of justice would be served nor identified the proposed service location. The court also stated that the provider's remedy for an allegedly improper response to its notice to admit lay in CPLR 3123 (c).
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51869(U)
Insurer prevailed
The insurer established that it had received no claims for the accident alleged in the complaint, and the provider failed to rebut that showing. The Appellate Term, Second Department, reversed the order, granted the insurer summary judgment dismissing the complaint and denied the provider's cross motion. The provider's billing affidavit identified the same accident date as the complaint, but its annexed claim forms and denials concerned a different accident date. It therefore failed to prove submission of statutory claim forms and overdue payment under Insurance Law § 5106 (a). The insurer's unrebutted proof that it had received no claims concerning the pleaded accident supported dismissal of the action as premature.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51870(U)
Split result
The provider's business-record foundation and the insurer's proof of timely mailing were insufficient to support their summary judgment motions. The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed, leaving the insurer's cross motion denied. The provider's billing manager and corporate officer did not establish personal knowledge of its recordkeeping practices sufficient to admit the annexed documents as business records. The insurer sought dismissal for lack of medical necessity or a determination that its denials were timely. Its litigation examiner inadequately described procedures ensuring proper addressing and mailing of verification requests and denials, defeating its claimed toll of the 30-day period.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51871(U)
Provider prevailed
The provider's motion to compel the insurer's deposition should have been granted because the insurer did not oppose it. The Appellate Term, Second Department, reversed the denial of the motion in the provider's action for assigned no-fault benefits. Following Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., it granted the motion to the extent of ordering the insurer to appear for a deposition within 30 days of the appellate order.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51872(U)
Provider prevailed
The provider's motion to compel the insurer's deposition should have been granted because the insurer did not oppose it. The Appellate Term, Second Department, reversed the order denying discovery in the provider's action for assigned no-fault benefits. Following Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., it granted the motion to the extent of requiring the insurer to appear for a deposition within 30 days of the appellate order.
Appellate Term, Second Department
Sep 10, 2008
2008 NY Slip Op 51873(U)
Provider prevailed
The provider's motion to compel the insurer's deposition should have been granted because the insurer did not oppose it. The Appellate Term, Second Department, reversed the order denying the motion in an action for assigned no-fault benefits. Following Crossbay Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., it granted relief to the extent of requiring the insurer to appear for a deposition within 30 days of the appellate order.
Appellate Term, Second Department
Sep 3, 2008
2008 NY Slip Op 51862(U)
Split result
The insurer failed to prove timely verification requests, and the provider failed to lay a business-records foundation. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion for summary judgment while affirming denial of the provider's motion. The provider's officer did not establish personal knowledge of its practices and procedures sufficient to authenticate the attached documents. The insurer did not demonstrate timely mailing of its initial and follow-up verification requests, so it failed to establish that the action was premature under 11 NYCRR 65-3.8 (a). A partial dissent found the requests timely mailed and would have affirmed summary judgment dismissing the action as premature.
Appellate Term, Second Department
Sep 3, 2008
2008 NY Slip Op 51861(U)
Split result
The provider obtained summary judgment on three claims because one peer review was insufficient and two denials lacked timely-mailing proof. The Appellate Term, Second Department, modified the order to grant judgment on those claims while leaving one claim for further proceedings. One reviewer cited insufficient documentation, and the insurer did not show that it sought the missing information through verification. Another report supplied a sufficient factual basis and medical rationale to raise a medical-necessity issue; its observation that documentation did not show failed office-based therapy did not make that report insufficient. The mailing affidavit did not address the other two denials, precluding their medical-necessity defenses. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Sep 3, 2008
2008 NY Slip Op 51863(U)
Split result
The insurer failed to prove timely denials of seven claims, but its IME report raised a medical-necessity issue for two later-treatment claims. The Appellate Term, Second Department, modified the provider's summary judgment award, granting judgment on the seven claims and one claim for treatment preceding the IME, while denying judgment on two post-IME claims. The mailing affidavit lacked personal-mailing evidence or an office procedure. Concurrent care lacked competent supporting testimony. The IME report supplied a factual basis and medical rationale for denying later treatment, but its prospective cutoff did not address earlier services. The matter was remanded for statutory interest and attorney's fees under Insurance Law § 5106 (a) and further proceedings on the remaining claims; a separate concurrence agreed only in the result.
Appellate Term, Second Department
Sep 3, 2008
2008 NY Slip Op 51864(U)
Insurer prevailed
A provider that knows the owner of the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC benefits. The provider and assignor knew the owner's identity, and the provider had not exhausted its remedies. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, held the claim against MVAIC premature and reversed the order denying MVAIC's motion for summary judgment. It granted the motion dismissing the complaint, explaining that the provider could assert a claim against MVAIC if its remedies against the vehicle owner ultimately proved unsuccessful.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51859(U)
Insurer prevailed
The insurer's investigators established a founded belief that the assignor's injuries did not arise from an insured incident. The providers made a prima facie showing by proving submission of claim forms stating the facts and amounts of their losses and overdue payment under Insurance Law § 5106 (a). The insurer's affidavits nevertheless raised a triable coverage issue under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed denial of the providers' summary judgment motion on that ground, rather than the business-records deficiency identified below, and reached no other issue.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51852(U)
Split result
The insurer's summary judgment award was vacated because medical necessity was not an issue raised by the provider's motion. The provider sought summary judgment for assigned no-fault benefits, and the insurer opposed with peer reviews and the reviewer's affidavit. The Appellate Term, Second Department, rejected the provider's assertion that the denials were vague or misleading: the NF-10 forms, accompanying explanations, and peer reviews adequately identified the grounds. Although a court may award summary judgment to a nonmoving party, searching this record on medical necessity was improper. The judgment was reversed and the insurer's award vacated; denial of the provider's motion remained intact. A remaining contention was not reached because it was first raised on appeal.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51856(U)
Provider prevailed
The insurer's causation expert failed to establish that the hearsay materials supporting the opinion were accepted as reliable in the profession. At a nonjury trial, the parties stipulated to the provider's prima facie case and timely denials, leaving accident causation as the sole issue. The insurer's only witness relied on a police report, vehicle photographs, and a repair estimate. Under Hambsch v New York City Tr. Auth., expert reliance on out-of-court material required proof of professional acceptance. Without that proof, the testimony and report were inadmissible. The provider's failure to object did not permit a judgment resting entirely on hearsay. The Appellate Term, Second Department, affirmed the judgment for the provider.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51860(U)
Insurer prevailed
A provider that knows the owner of the vehicle its assignor was driving must exhaust remedies against that owner before seeking MVAIC benefits. The provider and assignor knew the owner's identity but had not exhausted those remedies. Following Hauswirth v American Home Assur. Co., the claim against MVAIC was premature; the provider could pursue MVAIC after unsuccessfully exhausting its remedies against the owner. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion. It reached no other issue.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51853(U)
Insurer prevailed
The provider failed to prove claim submission or lay a business-records foundation for its summary judgment motion. Under Insurance Law § 5106 (a), prima facie entitlement required proof of submitted claims stating the fact and amount of loss and overdue benefits. The corporate officer's affidavit and postal ledger did not establish mailing, and counsel's assertion lacked personal knowledge and probative value. The officer also failed to authenticate the attached documents. The Appellate Term, Second Department, reversed the judgment, vacated the summary judgment order, and denied the provider's motion. It dismissed the direct appeal from the order because entry of judgment terminated that appeal right, and did not reach the insurer's remaining contention.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51854(U)
Insurer prevailed
The provider's officer failed to establish personal knowledge sufficient to lay a business-records foundation for summary judgment. The provider obtained summary judgment in an action for assigned first-party no-fault benefits, and a judgment was entered on that order. On the insurer's appeal, the officer's affidavit did not demonstrate familiarity with the provider's practices and procedures sufficient to admit the attached documents as business records. Following Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department, concluded that the provider failed to establish its prima facie entitlement to relief. It reversed the judgment, vacated the summary judgment order, and denied the provider's motion.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51855(U)
Insurer prevailed
Severance under CPLR 603 is discretionary and ordinarily stands on appeal absent prejudice to a substantial right. The provider sued for assigned no-fault benefits arising from three separate motor vehicle accidents under three insurance policies. The insurer moved to sever the causes of action into separate actions. The claims were likely to present few, if any, common issues of law or fact, and a single trial involving the different accidents and injuries risked being unwieldy and confusing. The Appellate Term, Second Department, affirmed the order granting the insurer's severance motion.
Appellate Term, Second Department
Sep 2, 2008
2008 NY Slip Op 51858(U)
Insurer prevailed
The insurer's chiropractor supplied a factual basis and medical rationale raising a triable issue of medical necessity. The insurer opposed the equipment provider's summary judgment motion with the reviewer's affidavit. Its claims representative established mailing through a standard office practice, and the timely denial's reference to a peer review finding the supplies unnecessary preserved that defense. The Appellate Term, Second Department, reversed the judgment, vacated the order granting the provider's motion, and denied the motion. It declined to search the record to award the insurer summary judgment and did not address the unchallenged provider's prima facie case; a separate concurrence disputed that refusal to examine the prima facie showing.
Trial court, First Department
Sep 29, 2008
2008 NY Slip Op 51985(U)
The no-fault insurer failed to establish a reasonable excuse or meritorious defense for vacating a default judgment in an arbitration proceeding. The Supreme Court, New York County, denied vacatur, leaving intact the judgment restoring the workers' compensation carrier's original loss-transfer award. Service through the Superintendent of Insurance satisfied Insurance Law § 1212 (b); the insurer's assertion that its files contained no notice did not rebut proof of service. Its attack on the original award did not address whether the arbitrator exceeded authority by amending it under CPLR 7509 and 7511 (b) (1) (iii). The court left the asserted workers' compensation offset issue undecided. Relief effectively seeking confirmation of the amended award was also untimely under CPLR 7510.
Trial court, Second Department
Sep 25, 2008
2008 NY Slip Op 28381
Provider prevailed
The insurer's peer-review testimony failed to establish that a shoulder MRI lacked medical necessity. The parties stipulated to the provider's prima facie case, a timely denial and admission of the peer review and underlying records, leaving medical necessity as the sole trial issue. On cross-examination, the peer reviewer acknowledged that the MRI was necessary to distinguish a musculoskeletal injury from a nerve-root injury. The insurer neither qualified the reviewer as an expert nor established the reviewer's expertise. The Civil Court, Kings County, found the insurer's proof insufficient and entered judgment for the provider with statutory interest and attorney's fees, without reaching the sufficiency of the provider's rebuttal.
Trial court, Second Department
Sep 22, 2008
2008 NY Slip Op 51925(U)
Split result
Discovery into alleged fraudulent incorporation under CPLR article 31 does not require the good-cause showing applicable to claim verification. The Civil Court, Richmond County, compelled disclosure concerning the provider's corporate structure and ownership and an examination before trial of its purported owner. Under CPLR 3101 (a), the insurer showed that the requested discovery was material and necessary, with an investigator's affidavit supporting a founded belief of control by an unlicensed person. The court declined to order personal tax returns because the insurer had not shown they were indispensable and unavailable elsewhere. It denied dismissal under CPLR 3126 because the provider had answered some requests and had not acted willfully, contumaciously or in bad faith.
Trial court, First Department
Sep 17, 2008
2008 NY Slip Op 28380
Insurer prevailed
The interest suspension in 11 NYCRR 65-3.9 (c) is consistent with Insurance Law § 5106 (a). The provider challenged an arbitration award computing interest from commencement of arbitration rather than 30 days after receipt of its bills. The Supreme Court, New York County, upheld the regulation as rationally encouraging prompt challenges to denials while preventing applicants from benefiting from delay. If an applicant fails to commence arbitration or litigation within 30 days after receiving a denial, interest does not accumulate until that action is taken. The court denied vacatur and granted the insurer's cross petition to confirm, while severing and referring the court-fixed attorney's-fee issue under 11 NYCRR 65-4.10 (j) (4) to a special referee.
Trial court, Second Department
Sep 15, 2008
2008 NY Slip Op 51902(U)
Provider prevailed
An insurer must notify a provider that its response to an additional verification request is insufficient or incomplete. The Civil Court, Kings County, granted the provider's motion and entered judgment for unpaid no-fault benefits, rejecting the insurer's premature-claim defense. The provider had responded to the verification request, and the insurer requested nothing further after receiving that response. Following All Health Medical Care, P.C. v Government Employees Insurance and Westchester County Medical Center v NY Central Mutual Fire Ins. Co., the court required further communication concerning any perceived deficiency rather than inaction.
Trial court, Second Department
Sep 4, 2008
2008 NY Slip Op 51844(U)
Insurer prevailed
Staged accident and fraudulent incorporation defenses remain available despite an insurer's late denial. The Civil Court, Richmond County, denied the provider's summary judgment motion and directed it to answer discovery. Although the billing affidavit satisfied CPLR 4518 (a), an investigator's affidavit and transcriber-certified statements identified inconsistencies sufficient to raise a staged-accident issue. The unsigned statements and the investigator's absence when they were taken did not defeat that showing. Corporate documents and employee testimony also supported a founded belief that a nonlicensed professional controlled the provider. Following Mallela and 11 NYCRR 65-3.16 (a) (12), the court treated licensing eligibility as a condition precedent and held that Fair Price Med. Supply Corp. v Travelers Indem. Co. did not make that defense precludable.
