Appellate Division, Third Department
Nov 26, 2008
2008 NY Slip Op 09334
Loss-transfer recovery based on use for hire requires proof that a vehicle was principally used for that purpose. A workers' compensation carrier obtained an arbitration award reimbursing benefits from the no-fault insurer. The record showed only that the insured passenger vehicle bore another vehicle's livery plates and transported passengers for hire on the accident date. Under Insurance Law § 5105 (a), principal use was part of the carrier's threshold showing, not an affirmative defense. Compulsory arbitration under Insurance Law § 5105 (b) required evidentiary support and a rational basis, which this award lacked. The carrier had not pursued available disclosure. The Appellate Division, Third Department, reversed the order denying vacatur, granted the insurer's CPLR 7511 application, and vacated the award.
Appellate Division, Third Department
Nov 6, 2008
2008 NY Slip Op 08396
Insurer prevailed
An injured claimant's burns from lighting gasoline-soaked clothing did not arise out of the use or operation of a motor vehicle. Gasoline spilled on the claimant's clothing while the claimant refueled a car. After reentering the vehicle and leaving the station, the claimant attempted to light a cigarette, igniting the gasoline. Insurance Law § 5102 (b) and § 5103 (a) (1) require the vehicle to be a proximate cause of the injury. The injuries would have occurred even without reentry into the vehicle, and their occurrence inside a moving car did not establish coverage. The Appellate Division, Third Department, affirmed the order denying the claimant's summary judgment motion and granting the insurer's cross motion for a declaration of no obligation.
Appellate Term, Second Department
Nov 26, 2008
2008 NY Slip Op 52651(U)
Split result
The insurer failed to raise triable issues on overdue claims or claims challenged only through unsworn peer reviews. The Appellate Term, Second Department, modified the order to grant the providers summary judgment on nine medical, three acupuncture and three chiropractic claims. Two medical claims were not timely denied; a nonspecific affidavit failed to establish outstanding verification for seven medical and three chiropractic claims under 11 NYCRR 65-3.5 (b) and 65-3.8 (a). Unsworn acupuncture peer reviews lacked probative value. Summary judgment remained denied on three medical and two chiropractic claims supported by timely denials and affirmed peer reviews. The court remanded for interest and attorney fees under Insurance Law § 5106 (a) and further proceedings, leaving the unpreserved business-record foundation issue unaddressed.
Appellate Term, Second Department
Nov 21, 2008
2008 NY Slip Op 52382(U)
The subrogation defendant failed to establish an excuse for default through an attorney affirmation lacking personal knowledge. The insurer sued to recover uninsured motorist and basic no-fault payments made on behalf of its subrogor. After an initial default was vacated by stipulation, the defendant defaulted again, and the judgment was reinstated following an inquest. Under CPLR 5015 (a), vacatur required a reasonable excuse and a meritorious defense. The attorney's affirmation had no probative value because it did not allege personal knowledge. The Appellate Term, Second Department, reversed the order granting vacatur, denied the defendant's motion and reinstated the insurer's default judgment against that defendant.
Appellate Term, Second Department
Nov 7, 2008
2008 NY Slip Op 52304(U)
Provider prevailed
The insurer's fraudulent-procurement defense failed because it showed neither preaccident cancellation nor the assignors' participation in fraud. The providers established their prima facie case under Insurance Law § 5106 (a), with the billing manager's affidavit authenticating the claim forms under CPLR 4518. The insurer alleged identity theft, but the record contained no evidence connecting the assignors to the scheme. A prior order denying summary judgment because fraud presented a factual issue lacked sufficient finality for collateral estoppel. Without cancellation before the accident under Vehicle and Traffic Law § 313, the insurer raised no triable issue. The Appellate Term, Second Department, affirmed the providers' summary judgment.
Appellate Term, Second Department
Nov 5, 2008
2008 NY Slip Op 52186(U)
Insurer prevailed
The provider's claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted. The assignor was a passenger in the vehicle, and both the provider and assignor knew its driver and owner. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (7). On that motion, the inquiry was whether the provider had a cause of action, rather than merely whether it had stated one. The provider could assert a claim against MVAIC after exhausting its remedies against those parties.
Appellate Term, Second Department
Nov 5, 2008
2008 NY Slip Op 52191(U)
Provider prevailed
A letter that neither demands nor requires a response is not a proper verification request and does not toll the denial period. The insurer opposed the provider's summary judgment motion by asserting that the assignor's delay in attending an EUO tolled its time to pay or deny. The Appellate Term, Second Department, found the relied-upon letter insufficient as a verification request. The 30-day period under 11 NYCRR 65-3.8 (c) therefore remained untolled, making the denial untimely and precluding the insurer's lack-of-medical-necessity defense under Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co. The court affirmed the judgment awarding the provider summary judgment and passed on no other issue.
Appellate Term, Second Department
Nov 5, 2008
2008 NY Slip Op 52184(U)
Provider prevailed
An insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits. The insurer sought dismissal as premature, asserting that an application and completed assignment remained outstanding despite receipt of the hospital's NF-5 form. Under 11 NYCRR 65-3.5 (g), that completed form satisfied the application requirement. The insurer received the form, including an assignment, on October 6, 2005, but did not request assignment verification until December 23, 2005, failing to establish a timely request or entitlement to that verification. The Appellate Term, Second Department, affirmed summary judgment for the hospital and denial of the insurer's cross motion. Its business-record foundation challenge was unpreserved because first raised on appeal.
Appellate Term, Second Department
Nov 5, 2008
2008 NY Slip Op 52188(U)
Insurer prevailed
An arbitration claim against MVAIC is governed by the three-year limitations period in CPLR 214 (2), rather than a six-year period. The Appellate Term, Second Department, found the arbitrator's application of a six-year period contrary to settled law. Neither party showed a verification request tolling the payment due date, and MVAIC's later denial did not postpone that date. Accrual did not depend on whether the assignor had been determined to be a qualified person. Finding the arbitration untimely, the court reversed the order, denied the provider's confirmation petition, and granted MVAIC's motion to vacate both the arbitrator's and master arbitrator's awards.
Appellate Term, Second Department
Nov 5, 2008
2008 NY Slip Op 52185(U)
Split result
Discovery supporting a precluded medical-necessity defense is palpably improper even without a timely objection. The provider failed to challenge document demands within CPLR 3122's deadline, limiting review to privilege or palpable impropriety. The insurer did not establish timely denials, so medical-necessity discovery was improper. Its detailed reasons to suspect fraudulent incorporation supported discovery on that nonprecluded defense under Mallela and CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel only specified documents, including incorporation, management and shareholder-license records, within 60 days, followed by a deposition within 30 days after production. The provider obtained a limitation of document discovery, while the insurer retained eligibility discovery and the deposition.
Trial court, Second Department
Nov 24, 2008
2008 NY Slip Op 52610(U)
Split result
An insurer may recover no-fault payments made after 11 NYCRR 65-3.16 (a) (12) took effect to providers controlled by unlicensed persons. The Supreme Court, Queens County, granted partial summary judgment to the insurer on nine causes against five providers that received payments after April 4, 2002. Consent orders established that their nominal physician owner lacked control, violating Business Corporation Law § 1503 (a). Applying Mallela's reasoning, the court found intent to defraud at incorporation immaterial and rejected reliance on permission to collect receivables while winding up. The same causes were dismissed against four other providers because the insurer proved neither receipt of payments nor control of the paid entities. Remaining causes continued, with discovery compelled.
Trial court, Second Department
Nov 24, 2008
2008 NY Slip Op 52641(U)
Insurer prevailed
The provider's conditions for attending an EUO constituted refusal to supply verification, leaving six claims premature. The provider demanded separate paid appearances for each patient rather than a single EUO and failed to appear twice, although the insurer accommodated requests concerning location and day. The District Court, Nassau County, found timely verification requests remained unanswered and the payment-or-denial period remained tolled under 11 NYCRR 65-3.8 (a) (1). It denied the provider's summary judgment motion and granted judgment to the insurer dismissing the final six claims as premature. The fifth claim was also dismissed because the provider supplied no medical evidence opposing a timely peer-review denial. The first, second, third, fourth and sixth claims remained unresolved because their partial fee-schedule denials presented factual disputes.
Trial court, Second Department
Nov 5, 2008
2008 NY Slip Op 28494
Insurer prevailed
An IME by a licensed psychologist can satisfy the mandatory no-fault endorsement's requirement of examination by a physician. The insurer sought summary judgment based on the assignors' IME and EUO nonappearances. Interpreting 11 NYCRR 65-1.1 (d), the Civil Court, Kings County, relied on an Insurance Department opinion allowing examination by a licensed health provider outside the treating provider's specialty. It rejected the contention that Education Law § 6522 restricted IMEs to physicians. The insurer's affidavits established mailing of initial and follow-up IME requests and denials, and the assignors' nonappearances. The court granted the insurer summary judgment dismissing the complaint without reaching the provider's objections to the EUO requests.
