Appellate Division, Second Department
Dec 30, 2008
2008 NY Slip Op 10583
Split result
The provider's class certification motion was denied for inadequate representation, but renewal remained available. The Appellate Division, Second Department, reversed the reargument order, insofar as appealed from, to deny certification without prejudice to renewal under CPLR article 9; the superseded order's appeal was dismissed. The proposed class challenged reductions of durable medical equipment reimbursements under former 11 NYCRR Appendix 17-C, part E. Common issues predominated and damages were manageable, but the provider's principal risked being preoccupied with fraud counterclaims, whose merits remained unresolved. Overbilling and invoice recycling were not coverage defenses, and the insurer's failure to assert them within 30 days precluded them. Documented costs were unnecessary to establish the class members' prima facie cases because the insurer had not sought verification.
Appellate Division, Second Department
Dec 30, 2008
2008 NY Slip Op 10596
Provider prevailed
The insurer failed to establish a reasonable excuse for its default, and its denial of receipt did not rebut proof of proper service. The Appellate Division, Second Department, affirmed the denial of the insurer's motion under CPLR 5015 (a) (1) to vacate a default judgment awarding the providers no-fault benefits under two insurance contracts. The providers established service through delivery to the Assistant Deputy Superintendent and Chief of Insurance under Insurance Law § 1212. The insurer did not challenge the address on file with the Superintendent, and mere denial of receipt was insufficient. Even treating the motion as one under CPLR 317, the insurer failed to show that it lacked actual notice of the summons in time to defend.
Appellate Division, Second Department
Dec 9, 2008
2008 NY Slip Op 09786
Insurer prevailed
The insurer raised a triable issue whether it timely and properly denied a claim based on alleged intoxication after receiving verification. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and denied the provider's summary judgment motion on the first cause of action. The provider established that the claim had not been paid or denied within 30 days of receipt of the prescribed forms under 11 NYCRR 65-3.8 (a) (1) and (c). The insurer's opposition raised a factual issue concerning a denial issued within 30 days after receiving requested additional verification under 11 NYCRR 65-3.5 and 11 NYCRR 65-3.8 (e) and (g). The insurer had paid the separate claim comprising the second cause of action.
Appellate Division, First Department
Dec 9, 2008
2008 NY Slip Op 09639
Insurer prevailed
The insurer properly disclaimed because late notice of the personal injury suit deprived it of the right to appear and answer. The Appellate Division, First Department, affirmed summary judgment declaring that the insurer had no duty to defend or indemnify its insureds and denying the injured claimant's cross motion to compel satisfaction of the underlying judgment. Although the claimant timely supplied accident information, notice of the suit came 14 months after commencement, after the claimant had obtained an order for a default judgment. Applying Insurance Law § 3420 (a) (3) and American Tr. Ins. Co. v B.O. Astra Mgt. Corp., the majority upheld the disclaimer; a separate concurrence explained that timely accident and claim notice required the insurer to demonstrate prejudice.
Appellate Division, Second Department
Dec 2, 2008
2008 NY Slip Op 09585
Split result
The insurer raised a triable issue whether the provider timely complied with its verification demand, defeating the provider's summary judgment motion. The Appellate Division, Second Department, modified the order to deny the hospital provider's motion on the first cause of action and affirmed the denial of the insurer's cross motion to dismiss that cause of action. The provider established mailing and receipt of the prescribed billing forms and overdue payment. However, the factual issue concerning compliance with verification prevented summary judgment, and the insurer's obligation to pay or deny did not arise until the provider furnished all demanded verification.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 52586(U)
Insurer prevailed
The provider failed to show exhaustion of remedies against the vehicle owner before seeking no-fault benefits from MVAIC. The provider obtained summary judgment and a judgment for assigned benefits, which MVAIC challenged on exhaustion grounds. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the provider had not demonstrated exhaustion of remedies against the owner of the vehicle allegedly striking the assignor. The court reversed the judgment, vacated the underlying order, and denied the provider's motion for summary judgment, reaching no other issue.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 28528
Insurer prevailed
A provider cannot correct during litigation claim forms identifying the treating professionals as independent contractors. The insurer sought summary judgment based on two such forms; the provider offered unrelated trial transcripts finding its treating providers were employees. The Appellate Term, Second Department, affirmed dismissal. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.11 (a), the forms did not establish a compensable loss or entitlement to direct payment. The independent-contractor defense was nonprecludable, and the insurer could rely on the forms without issuing a denial. The court noted that a corrected claim might be submitted with reasonable justification for missing the 45-day deadline under 11 NYCRR 65-1.1, but left that justification unresolved here.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 52584(U)
Insurer prevailed
The providers' appeal was dismissed because the oral trial motion was not made on notice and no appeal lay from the dismissal decision. The providers sought a ruling that an earlier summary judgment order recognizing their prima facie showing eliminated the need to establish a prima facie case at trial. The Civil Court denied that oral motion and dismissed the complaint when the providers presented no evidence; no judgment was entered. The Appellate Term, Second Department, dismissed the appeal, explaining that CCA 1702 (a) (2) and CPLR 2211 afforded no appeal as of right from the ruling on the motion and that a decision was not appealable. The insurer retained the favorable dismissal.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 52589(U)
A party that obtains all requested relief cannot appeal merely because it disagrees with the order's findings or rationale. In an assigned no-fault action, the insurer sought a protective order striking the provider's notice to admit. Civil Court denied the motion, giving the provider the full relief sought in opposition. The provider nevertheless appealed to remove language expressing the court's views on notices to admit in no-fault actions. Following Parochial Bus Sys. v Board of Educ. of City of N.Y., the Appellate Term, Second Department, dismissed the provider's appeal because disagreement with the favorable order's reasoning supplied no grounds for appeal.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 52585(U)
Insurer prevailed
The provider's conclusory, undetailed and uncorroborated claim of law office failure did not excuse its default. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious cause of action. Counsel supplied no explanation for failing to submit written opposition or appear on the adjourned motion date. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied vacatur and the requested subsequent denial of the insurer's motion. The insurer's summary judgment on default remained intact; the court passed on no other issue.
Appellate Term, Second Department
Dec 31, 2008
2008 NY Slip Op 52588(U)
Provider prevailed
The insurer failed to prove timely mailing of the IME requests or the assignor's nonappearance through admissible evidence. The provider sought summary judgment on two claims that the insurer asserted it had timely denied for failure to attend two IMEs. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted partial summary judgment to the provider under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The matter was remanded for statutory interest and attorney fees under Insurance Law § 5106 (a). A separate concurrence agreed only with the result and expressed disagreement with propositions in the cited authority.
Appellate Term, Second Department
Dec 5, 2008
2008 NY Slip Op 52468(U)
Split result
The insurer established grounds for corporate eligibility discovery, but failed to justify disclosure of the provider owner's personal tax returns. In an assigned no-fault action, the Appellate Term, Second Department, modified the order, insofar as appealed from, to compel specified documents and interrogatory answers, corporate tax returns, and the owner's deposition. Detailed, specific reasons supported a Mallela defense, making corporate information material under CPLR 3101 (a). Untimely objections under CPLR 3122 did not require disclosure of privileged or palpably improper material, including discovery concerning precluded defenses. Special circumstances warranted corporate tax returns, but the insurer failed to show personal returns were indispensable and unavailable elsewhere. A deposition concerning another corporation did not bar this deposition; a partial dissent favored compelling personal tax returns too.
Appellate Term, Second Department
Dec 4, 2008
2008 NY Slip Op 52466(U)
Insurer prevailed
The provider failed to establish its prima facie case at trial because it called no witness to authenticate its claim form as a business record. The provider relied on a notice to admit, the attached claim form and the insurer's response. Under CPLR 3123 (b) and Bajaj v General Assur., admitted matters remain subject to admissibility objections, and testimony was required to establish the document's admissibility. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial in the insurer's favor; it reached no other issue.
Appellate Term, Second Department
Dec 3, 2008
2008 NY Slip Op 52453(U)
Insurer prevailed
A provider whose assignor knows the vehicle's driver and owner must exhaust remedies against them before seeking relief from MVAIC. MVAIC moved under CPLR 3211 (a) (7) to dismiss the provider's action for assigned no-fault benefits as premature. The provider and its assignor knew the identities of the driver and owner of the vehicle in which the assignor had been a passenger. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, reversed the order and granted MVAIC's motion. The provider could assert a claim against MVAIC after exhausting those remedies; the court reached no other issue.
Appellate Term, Second Department
Dec 3, 2008
2008 NY Slip Op 28487
Insurer prevailed
The provider waived objections to defects in the insurer's 90-day demand and failed to justify its delay or show a meritorious claim. The insurer moved under CPLR 3216 to dismiss for failure to prosecute. The provider neither filed a note of issue or notice of trial within 90 days nor timely moved to vacate the demand or extend the period under CPLR 2004. The Appellate Term, Second Department, held that omissions of the court, venue and index number were defects of form under CPLR 2101 (c), waived by failure to return the demand within two days under CPLR 2101 (f). It affirmed the judgment dismissing the complaint.
Appellate Term, Second Department
Dec 3, 2008
2008 NY Slip Op 52450(U)
Insurer prevailed
The insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary. In this action for assigned no-fault benefits, the provider appealed only the grant of the insurer's cross motion for summary judgment dismissing the complaint. The reports and affidavit supplied a factual basis and medical rationale for the reviewer's opinions, establishing the insurer's prima facie defense. The provider submitted no evidence refuting that showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving dismissal in the insurer's favor intact.
Appellate Term, Second Department
Dec 3, 2008
2008 NY Slip Op 52455(U)
Insurer prevailed
The insurer's chiropractor established that the assignor missed an IME at the office address stated in the scheduling letters. The provider opposed summary judgment only by questioning whether the scheduled address was an office maintained by the examiner. The chiropractor's affidavit established the office location and nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint. Denial timeliness was unchallenged; the provider's remaining arguments were first raised on appeal and also lacked merit.
Appellate Term, Second Department
Dec 3, 2008
2008 NY Slip Op 52456(U)
Insurer prevailed
The provider failed to prove tender of a release and stipulation of discontinuance required to enforce its settlement under CPLR 5003-a. After settling its assigned no-fault action, the provider moved for leave to enter judgment and add interest, attorney fees and costs. CPLR 5003-a (a), (e) and (g) permit judgment upon nonpayment only after tender by personal delivery or registered or certified mail, return receipt requested, and expiration of 21 days. The provider's submissions did not establish that tender. The Appellate Term, Second Department, affirmed denial of the unopposed motion on different grounds, favoring the insurer, and passed on no other issue.
Appellate Term, Second Department
Dec 2, 2008
2008 NY Slip Op 52442(U)
Provider prevailed
The insurer failed to establish timely denials or that it did not insure the assignor's vehicle on the loss date. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment. The insurer failed to establish timely denials permitting its late-notice and late-proof defenses and, independently, failed to demonstrate those defenses' merits. Its documentation showed only that the vehicle was not insured under the claimed policy number, without alleging or proving that no coverage existed on the loss date. The burden therefore never shifted to the provider. A separate concurrence agreed with the result but considered the litigation examiner's affidavit sufficient to establish timely mailing.
Trial court, Second Department
Dec 31, 2008
2008 NY Slip Op 28532
Provider prevailed
An insurer must issue a timely denial to preserve a fee-schedule defense, including a defense of partial payment under the schedule. The provider established its prima facie case through a billing manager's detailed affidavit describing recordkeeping and mailing procedures and personal mailing of the bill. The insurer denied the claim approximately 56 days after receipt. Applying Insurance Law § 5106 (a), 11 NYCRR 65-3.5 and Fair Price Med. Supply Corp. v Travelers Indem. Co., the Civil Court, Richmond County, held that fee-schedule noncompliance did not implicate lack of coverage in the first instance. The untimely denial precluded the insurer's fee-schedule and related partial-payment defenses, and the court granted the provider summary judgment.
Trial court, Second Department
Dec 8, 2008
2008 NY Slip Op 28510
Provider prevailed
The insurer's untimely initial verification request failed to toll the denial period, precluding its IME nonappearance defense. The insurer sought summary judgment dismissing two psychological-service claims or a finding that its denials were timely. The Civil Court, Kings County, rejected the provider's contention that policy language requiring examination by a physician excluded a psychologist, relying on 12 NYCRR 300.2 (b) (5). Nevertheless, under 11 NYCRR 65-3.5 (a) and (d), the insurer's failure to send initial verification within 10 business days meant its IME requests, made as initial rather than additional verification, did not extend the denial period. The court precluded the medical-necessity and IME nonappearance defenses, denied the insurer's motion and awarded summary judgment to the provider.
Trial court, Second Department
Dec 1, 2008
2008 NY Slip Op 52580(U)
The insurer's intoxication evidence raised factual questions but did not establish that intoxication caused the accident. The Supreme Court, Nassau County, denied both sides' summary judgment motions on the second and third causes of action. Under Insurance Law § 5103 (b) (2), intoxication is a coverage exclusion requiring timely denial or verification requests. Although the hospital established billing and nonpayment, the insurer showed timely requests and follow-ups for toxicology information that remained unanswered. A single-vehicle accident, a driving-while-intoxicated charge and blood-alcohol evidence justified seeking verification, but the insurer supplied no specifics establishing causation. The court also rejected the hospital's challenge to the denial's specificity.
