Appellate Division, Second Department
Oct 14, 2008
2008 NY Slip Op 07846
Insurer prevailed
⚠ Overruled by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)
The providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records. In an action for assigned no-fault benefits, the providers sought partial summary judgment but failed to establish that their records qualified under the business records exception in CPLR 4518 (a). Their motion therefore had to be denied regardless of the sufficiency of the insurer's opposition. The Appellate Division, Second Department, affirmed the Appellate Term's order sustaining that denial. Any issue concerning the insurer's cross motion to dismiss the complaint was not properly before the appellate court because that cross motion remained pending and undecided.
Appellate Division, Fourth Department
Oct 10, 2008
2008 NY Slip Op 07735
Provider prevailed
The 90-day period to seek vacatur under CPLR 7511 (a) runs from receipt of the award by the petitioner or the petitioner's agent. The injured claimant commenced a proceeding to vacate a no-fault master arbitration award 91 days after mailing but 86 days after counsel received it. Supreme Court dismissed the petition as untimely. The Appellate Division, Fourth Department, held that 11 NYCRR 65-4.10 (e) (3) specifies a method of delivery without defining delivery for CPLR 7511 (a). Article 75 procedures control judicial review, and the limitations period does not vary with the type of arbitration. The order, insofar as appealed from, was reversed, the insurer's motion was denied in its entirety, and the petition was reinstated.
Appellate Division, Second Department
Oct 7, 2008
2008 NY Slip Op 07619
Insurer prevailed
The insurer obtained vacatur of its default by showing that it lacked actual notice in time to defend and might have a meritorious defense. Service was made through the insurance official under Insurance Law § 1212. Although the insurer moved under CPLR 5015 (a) (1), its application could also be treated as one under CPLR 317. The claims manager described the insurer's standard procedures for handling process and stated that the summons and complaint were received only after judgment. The provider failed to rebut that showing, and the insurer established a potentially meritorious defense. The Appellate Division, Second Department, affirmed the order vacating the clerk's judgment entered upon the insurer's failure to appear or answer.
Appellate Division, Second Department
Oct 7, 2008
2008 NY Slip Op 07651
Split result
The injured claimant proved accident-related hospitalization expenses but failed to establish lost earnings with reasonable certainty. After no-fault arbitration awards, the insurer brought a de novo action and obtained a nonjury judgment dismissing both claims. Its expert relied only on a discharge summary and claim form, making the causation opinion speculative. The claimant's neurologist relied on an examination and relevant medical records, establishing causation. The claimant's testimony about impaired management of a real estate business and stock portfolio, without financial records, did not establish lost earnings. The Appellate Division, Second Department, modified the judgment to reinstate the hospitalization claim and remitted for valuation, while affirming the dismissal of lost earnings.
Appellate Division, Fourth Department
Oct 3, 2008
2008 NY Slip Op 07463
Split result
A master arbitration award of at least $5,000, excluding interest and attorney fees, permits a de novo action despite res judicata. The insurer sought a declaration of no duty to indemnify or pay no-fault benefits based on the injured claimant's alleged failure to cooperate. Under Insurance Law § 5106 (c) and 11 NYCRR 65-4.10 (h) (1) (ii), the award qualified for de novo determination. The Appellate Division, Fourth Department, affirmed the denial of the claimant's motion to dismiss and confirm the award and the grant of the insurer's request for de novo determination. It also affirmed denial of the insurer's summary judgment request because no person with personal knowledge supplied supporting evidence and the documents did not establish noncooperation.
Appellate Term, Second Department
Oct 31, 2008
2008 NY Slip Op 52178(U)
Provider prevailed
MVAIC failed to establish that the vehicle the assignor was using or operating when injured was a motorcycle. It sought summary judgment on the ground that the assignor was ineligible for no-fault benefits, asserting that the injuries occurred while using or operating an owned motorcycle. Although motorcycle use or operation would make the assignor ineligible under Insurance Law § 5103 (a) and 11 NYCRR 65-1.1 (e), MVAIC's proof did not establish that the vehicle was a motorcycle under Vehicle and Traffic Law § 123. The Appellate Term, Second Department, affirmed denial of MVAIC's motion on that ground rather than the lower court's late-denial rationale.
Appellate Term, Second Department
Oct 31, 2008
2008 NY Slip Op 52174(U)
Insurer prevailed
The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion. The Civil Court had denied the motion for failure to establish the provider's prima facie case. The Appellate Term, Second Department, found instead that the insurer's denial forms and claims representative's acknowledgment of receipt cured any deficiency in proof of mailing. The provider's affidavit also established admissibility of its claim forms under CPLR 4518, satisfying its prima facie burden under Insurance Law § 5106 (a). Nevertheless, the insurer's claims representative affidavit and affirmed peer review established proper, timely medical-necessity denials. The court affirmed denial of the provider's motion on those different grounds, favoring the insurer.
Appellate Term, Second Department
Oct 30, 2008
2008 NY Slip Op 52218(U)
Insurer prevailed
The defendant's proof raised an employment-status question requiring determination by the Workers' Compensation Board. The provider obtained summary judgment for assigned no-fault benefits after the lower court found no indication that the assignor worked for an employer required to provide workers' compensation coverage. The Appellate Term, Second Department, found sufficient proof to question whether the assignor was acting as an employee when injured. It reversed the judgment, vacated the summary judgment order, and remanded for a new determination of the motion, directing that the matter remain in abeyance pending a prompt application to the Board to determine the parties' rights under the Workers' Compensation Law.
Appellate Term, Second Department
Oct 30, 2008
2008 NY Slip Op 52208(U)
Provider prevailed
The insurer failed to establish a reasonable excuse for its default through counsel's conclusory explanation of delayed complaint processing. Vacatur under CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Counsel attributed the delay in forwarding the summons and complaint to the insurer's large complaint volume, but supplied no personal-knowledge account or detailed evidentiary explanation of the oversights. The insurer also failed to move expeditiously: counsel received notice of entry in December 2005 but did not move to vacate until October 2006. The Appellate Term, Second Department, affirmed denial of the motion, leaving the provider's default judgment intact.
Appellate Term, Second Department
Oct 30, 2008
2008 NY Slip Op 52223(U)
Provider prevailed
The insurer's excusable-default argument failed because the providers' judgment followed contested summary judgment motions. After the providers' attorney was suspended, enforcement was stayed pending proper substitutions of counsel. When the providers sought to lift the stay, the insurer cross-moved to vacate the judgment and underlying order and dismiss the complaint, alleging lack of consent to counsel's representation. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying vacatur. The insurer had opposed summary judgment and cross-moved, so the judgment was not entered on default; it supplied no other grounds under CPLR 5015. The providers' prima facie showing on the original motions was outside the scope of this appeal, and the insurer's remaining contentions lacked merit.
Appellate Term, Second Department
Oct 30, 2008
2008 NY Slip Op 52226(U)
Insurer prevailed
A stipulation discontinuing an action with prejudice presumptively bars later litigation of the same cause of action. The provider brought a second action involving the same assignor, no-fault claims and denial forms, arguing that it had not fully litigated the prior action's merits. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's motion under CPLR 3211 (a) (5) and (7). The provider did not deny that the causes of action were identical, the stipulation contained no exception permitting the second action, and the record showed no intent to withhold res judicata effect. The court declined to consider factual allegations first presented on appeal outside the record.
Appellate Term, Second Department
Oct 27, 2008
2008 NY Slip Op 52128(U)
Insurer prevailed
The provider's entitlement to MVAIC benefits remained disputed because the assignor's qualified-person status presented a factual issue. MVAIC challenged proof of New York residency. Under Insurance Law § 5221 (b) (2), an injured person must qualify under Insurance Law § 5202 (b) and comply with applicable article 52 requirements, including Insurance Law § 5208, to obtain covered-person rights under article 51. MVAIC's failure to establish timely denial did not preclude a lack-of-coverage defense. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its summary judgment motion, and denied that motion.
Appellate Term, Second Department
Oct 27, 2008
2008 NY Slip Op 52131(U)
Insurer prevailed
The provider's petition to vacate a master arbitrator's award lacked a supporting affirmation made under penalties of perjury. The Appellate Term, Second Department, reversed the order granting the petition, denied vacatur and remanded for entry of a judgment confirming the award, which upheld denial of assigned no-fault benefits. The sole supporting document, signed by counsel, merely stated that counsel "states as follows" and did not satisfy CPLR 2106. Denial of vacatur required confirmation under CPLR 7511 (e). The court did not reach the remaining contentions and noted that a special proceeding must terminate in a judgment under CPLR 411.
Appellate Term, Second Department
Oct 9, 2008
2008 NY Slip Op 52046(U)
Split result
The provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing the second cause of action and deny the provider's cross motion on that claim, otherwise affirming. Under 11 NYCRR 65-3.5 (g), completed hospital facility forms substituted for no-fault applications. Certified-mail proof established receipt of the first claimant's hospital records. For the second claim, the insurer proved proper mailing of verification requests for an executed assignment; the follow-up satisfied 11 NYCRR 65-3.6 (b). Unanswered verification rendered that claim premature under 11 NYCRR 65-3.8 (a). The insurer's challenge to the provider's business-record foundation was unpreserved.
Appellate Term, Second Department
Oct 9, 2008
2008 NY Slip Op 52050(U)
Insurer prevailed
The provider failed to establish a prima facie case because its employee's affidavit did not identify the annexed documents as business records. The Appellate Term, Second Department, reversed the order granting the provider summary judgment for assigned no-fault benefits and denied its motion. The affidavit did not refer to the documents attached to the moving papers, much less assert that they were the provider's business records under CPLR 4518 (a). That foundational defect defeated the provider's initial showing of entitlement to judgment. The court reached no other issue.
Appellate Term, First Department
Oct 8, 2008
2008 NY Slip Op 52014(U)
Provider prevailed
The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry. The Appellate Term, First Department, dismissed the appeal from the grant of summary judgment to the provider under CPLR 5513 (a). The providers' showing that the appeal was untimely was unrefuted. The court added that, were the appeal properly before it, it would affirm because the provider established entitlement to no-fault benefits and the insurer failed to raise a triable issue.
Appellate Term, First Department
Oct 8, 2008
2008 NY Slip Op 52015(U)
Provider prevailed
The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry. The Appellate Term, First Department, dismissed the appeal from the grants of summary judgment to one provider and partial summary judgment to another under CPLR 5513 (a). The providers' showing of untimeliness was unrefuted. The court added that, if the appeal were properly before it, it would affirm because the providers established entitlement to no-fault benefits and the insurer raised no triable issue.
Appellate Term, First Department
Oct 7, 2008
2008 NY Slip Op 51996(U)
Provider prevailed
The insurer's unsworn chiropractor's report failed to raise a triable medical-necessity issue, and its fee-schedule defense lacked competent proof. The provider established mailing and receipt of prescribed billing forms and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The report was inadmissible under CPLR 2106 and, in any event, addressed only further acupuncture treatment rather than the treatment at issue. The insurer also offered no competent evidence of fee-schedule nonconformity. The Appellate Term, First Department, reversed the order denying the provider's motion and granted summary judgment to the provider.
Trial court, Second Department
Oct 31, 2008
2008 NY Slip Op 28434
Provider prevailed
A provider may obtain relevant medical records from an insurer upon supplying a valid assignment or authorization for disclosure. The radiology provider moved under CPLR 3124 to compel records concerning the scanned body parts and IME and peer-review reports. The insurer had produced its peer review and the materials reviewed, arguing that additional records could not prove the provider's prima facie case or be used by the insurer at trial. Applying CPLR 3101 (a), the City Court, Poughkeepsie, found the requested material could rebut the medical-necessity defense or assist cross-examination. Because no assignment was on file, it granted the motion conditioned on the insurer's receipt of the assignor's valid authorization.
Trial court, Second Department
Oct 24, 2008
2008 NY Slip Op 52116(U)
Service by regular mail on an insurer and its attorney does not establish personal jurisdiction in an arbitration confirmation proceeding. The petitioning insurer sought confirmation under CPLR 7510 of an interinsurer no-fault loss-transfer award. The Supreme Court, Nassau County, granted the responding insurer's motion under CPLR 3211 (a) (8) and dismissed the petition. CPLR 403 (c) required service of the notice of petition in the same manner as a summons; regular mail was insufficient. The responding insurer did not waive its jurisdictional objection by obtaining an adjournment of the return date. The court did not reach the challenges to the award's signature or the arbitrator's authority to decide coverage.
Trial court, Second Department
Oct 17, 2008
2008 NY Slip Op 52093(U)
Insurer prevailed
The provider failed to rebut the insurer's timely preserved defense that proof of claim was submitted beyond the 180-day deadline. The Civil Court, Richmond County, granted the insurer's summary judgment motion and denied the provider's cross motion. Under 11 NYCRR 65.12, proof of claim was due within 180 days; a late-submission defense required a timely denial. The insurer established that it received the actual bill through discovery and denied it within 30 days. The provider's affidavit described mailing practices but did not establish that they were followed for the claimed mailing years earlier. Neither the purported earlier bill nor the customary file notation was produced. The provider also failed to establish admissibility or mailing of the later bill, defeating its prima facie showing.
Trial court, Second Department
Oct 7, 2008
2008 NY Slip Op 52009(U)
Split result
The six-year limitations period for contractual no-fault benefits runs when benefits become overdue, rather than from an earlier denial. The Civil Court, Kings County, denied both the insurer's summary judgment motion and the provider's cross motion. Under CPLR 213 (2), Insurance Law § 5106 (a) and 11 NYCRR 65-3.8, accrual occurred after the insurer's 30-day payment period expired. Although the denial could constitute anticipatory repudiation, the provider could await the time for performance, making commencement timely. The provider nevertheless failed to establish a prima facie case because it supplied no admissible foundation for its claim form as a business record. The insurer's admission of receipt did not concede the form's contents or cure that defect.
Trial court, Second Department
Oct 7, 2008
2008 NY Slip Op 52314(U)
Provider prevailed
The insurer failed to establish grounds to undo its settlement despite alleging newly discovered evidence of fraudulent incorporation. The Civil Court, Kings County, denied the insurer's motion under CPLR 5015 (a) (1), (2) and (3) to vacate a no-fault judgment resolved by a written settlement stipulation. Applying Hallock v State of New York, the court treated the stipulation as an independent contract requiring grounds such as fraud, collusion or mistake for invalidation. Counsel's conclusory allegations did not establish those grounds. In a later stipulation in separate litigation, the insurer had expressly preserved enforcement of voluntary settlements despite awareness of possible fraudulent incorporation. That concession defeated its newly discovered evidence argument, leaving the provider's settlement enforceable.
Trial court, Second Department
Oct 1, 2008
2008 NY Slip Op 52141(U)
Insurer prevailed
A no-fault claimant cannot obtain a trial de novo under 11 NYCRR 65-4.10 (h) when the master arbitrator awards no money. The Supreme Court, Nassau County, denied the injured claimant's petition and confirmed the award denying further lost earnings benefits. A de novo action required an award of at least $5,000, exclusive of interest and attorney fees. Mailing the petition to the insurer's counsel did not establish personal jurisdiction under CPLR 403 (c) and 311 (a), and article 75 relief was sought beyond CPLR 7511's 90-day period. Alternatively, the awards had a rational basis: the arbitrator found that the claimant remained able to perform managerial duties and sustained no earnings loss. The master arbitrator properly declined to reweigh the evidence.
