Appellate Division, Third Department
Jan 29, 2009
2009 NY Slip Op 00475
Provider prevailed
The insurer failed to show prejudice from late notice of the injured claimant's third-party action and SUM claim. The Appellate Division, Third Department, affirmed denial of the insurer's application under CPLR 7503 to stay arbitration. Although the claimant violated the policy's prompt-notice requirements, the insurer still had to establish meaningful prejudice under Rekemeyer v State Farm Mut. Auto. Ins. Co. and Matter of Brandon. Within three weeks of the accident, the insurer received notice of the accident, a forthcoming no-fault claim, possible SUM coverage, and a police report identifying the participants and vehicles. That information permitted investigation and protection of its interests. The insurer did not show that the later notice of litigation or SUM benefits compromised either ability.
Appellate Division, Second Department
Jan 27, 2009
2009 NY Slip Op 00528
Insurer prevailed
The insurers showed an excusable default and a potentially meritorious defense based on partial exhaustion of policy limits. The Appellate Division, Second Department, affirmed the order vacating the provider's default judgment. Under CPLR 5015 (a) (1), vacatur required a reasonable excuse and a meritorious defense. The insurers' employee reasonably believed the action had been discontinued after advising the provider's counsel's office that benefits were exhausted, excusing the short delay in appearing or answering. Payments for prior services established partial exhaustion and a potentially meritorious defense under 11 NYCRR 65-3.15. The provider demonstrated no prejudice from the short delay, and the policy favoring resolution on the merits supported the discretionary vacatur.
Appellate Division, Second Department
Jan 20, 2009
2009 NY Slip Op 00351
Provider prevailed
Judicially noticed diagnosis codes alone do not establish that treatment was wholly unrelated to an insured automobile accident. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the provider summary judgment on the third cause of action. The uncontested federal diagnosis and procedure codes key was sufficiently reliable for judicial notice under CPLR 4511 (b). But deciphered codes identified conditions and treatments without establishing causation or excluding accident-related exacerbation. The insurer supplied only counsel's affirmation, without an affidavit from a qualified medical expert, and failed to raise a triable lack-of-coverage issue. The provider established overdue payment under Insurance Law § 5106 (a) without an initial causation burden. Review of the insurer's cross motion was outside the notice of appeal under CPLR 5515 (1).
Appellate Term, First Department
Jan 29, 2009
2009 NY Slip Op 50137(U)
Provider prevailed
The denial of the insurer's motion to revise the provider's attorney's-fee award was affirmed on appeal. The Appellate Term, First Department, relied on the reasons stated by the Civil Court, New York County. The decision also cited LMK Psychological Servs. v State Farm Mut. Auto. Ins. Co. without further explanation.
Appellate Term, Second Department
Jan 26, 2009
2009 NY Slip Op 51279(U)
Split result
A payment authorization showing no intent to transfer no-fault rights does not deprive an injured claimant of standing. Under 11 NYCRR 65-3.11 (a), absent assignment, a provider's claim is submitted for the injured claimant. Denial forms established receipt and nonpayment; prior payment for treatment was unnecessary. The Appellate Term, Second Department, reversed the judgment and denied CPLR 3211 (a) (7) dismissal of unassigned physician claims and claims subject only to a payment authorization. Dismissal remained for assigned claims and claims lacking proof of submission and overdue payment under Insurance Law § 5106 (a). The sanctions award under 22 NYCRR 130-1.1 was vacated as the action was not frivolous, and the claimant's CPLR 3126 cross motion was remanded for determination anew; one justice dissented.
Appellate Term, Second Department
Jan 26, 2009
2009 NY Slip Op 51283(U)
Provider prevailed
A provider need not allege that the insurer's denial was untimely to establish prima facie entitlement to summary judgment. Under Insurance Law § 5106 (a), proof of claim submission stating the fact and amount of loss, and overdue payment, generally suffices. The Appellate Term, Second Department, affirmed the provider's judgment. The insurer's claims representative established neither actual mailing of the denials nor a standard mailing practice in the office from which they allegedly were sent. The insurer was therefore precluded from asserting lack of medical necessity. Because the insurer raised no other challenge to the prima facie case, the court did not otherwise review the finding that the provider established it.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50041(U)
Insurer prevailed
MVAIC established that the assignor failed to file a timely notice of claim, defeating coverage for the provider's assigned claim. Timely filing of an affidavit giving notice of an intention to claim under Insurance Law § 5208 (a) is a condition precedent to payment and covered-person status under Insurance Law § 5221 (b) (2). MVAIC made a prima facie showing of untimely filing on its unopposed summary judgment motion. The provider offered no proof of timely filing or an application for leave to file late under Insurance Law § 5208 (b), (c). The Appellate Term, Second Department, reversed the order and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 29014
Insurer prevailed
An omitted year in a mailing affidavit's jurat is a technical defect to be disregarded where no substantial right is prejudiced. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. Under CPLR 2001, the omitted years in two jurats did not defeat the mailing proof, particularly because the provider had not objected. The affidavits established timely mailing of medical-necessity denials through standard office procedures. The insurer's affirmed peer review report established lack of medical necessity for the supplies, and that proof was unrebutted. The provider's remaining contentions lacked merit or were raised for the first time on appeal. The provider's prima facie showing was not reviewed.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50046(U)
Insurer prevailed
The provider's reimbursement claim was barred by a prior arbitration determination that it was fraudulently incorporated. The insurer sought leave to add res judicata and collateral estoppel defenses and summary judgment dismissing claims for services within the period covered by the arbitration. Amendment was warranted under CPLR 3025 (b) because the provider showed no prejudice or surprise and the defenses had potential merit. The insurer established identity of the eligibility issue under Mallela, and the provider did not address collateral estoppel or show that it lacked a full and fair opportunity to litigate. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied its summary judgment motion, and granted the insurer's cross motion.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50039(U)
Insurer prevailed
The provider failed to establish entitlement to summary judgment because its officer's affidavit lacked a business-record foundation. In an action for assigned no-fault benefits, the insurer challenged the affidavit supporting the provider's motion. The affidavit did not sufficiently demonstrate the officer's personal knowledge of the provider's practices and procedures to permit admission of the attached documents as business records. The provider therefore failed to make a prima facie showing. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting summary judgment, and denied the provider's motion, sustaining the insurer's appeal.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50042(U)
Insurer prevailed
The provider's trial dismissal for failure to establish a prima facie case was affirmed. The provider relied on a notice to admit and an affirmation from the insurer's attorney, then rested without calling witnesses. The Appellate Term, Second Department, affirmed the judgment in the insurer's favor for the reasons stated in Bajaj v General Assur.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50047(U)
Insurer prevailed
An insurer's admission that it received a claim form does not concede the truth of the facts stated in that form. At a nonjury trial, the provider called no witnesses and relied on its notice to admit and the insurer's response to establish its prima facie case. Although the insurer acknowledged receipt and that the attached copy was accurate, the provider still had to establish a business-record foundation to prove the form's contents. Its failure to do so defeated its prima facie showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint in the insurer's favor and reached no other issue.
Appellate Term, Second Department
Jan 9, 2009
2009 NY Slip Op 50048(U)
Insurer prevailed
The provider failed to establish a prima facie case because its witness gave no testimony about the generation of its claim forms. At a nonjury trial for assigned no-fault benefits, the provider offered a former employee's testimony and sought admission of its claim forms. The insurer objected that the forms were hearsay and lacked a business-record foundation under CPLR 4518. The provider rested without calling additional witnesses. Because the forms were inadmissible as business records, the Appellate Term, Second Department, affirmed the judgment dismissing the complaint, leaving the insurer as the prevailing party.
Appellate Term, Second Department
Jan 8, 2009
2009 NY Slip Op 50030(U)
Provider prevailed
The insurer failed to raise a triable issue because its denial forms did not correspond to the claims for which judgment was sought. Opposing the provider's summary judgment motion for assigned no-fault benefits, the insurer asserted late submission of claims under 11 NYCRR 65.12. Its claims representative's affidavit and attached forms showed denials of other claims, but did not establish timely denial of the claims at issue. The Appellate Term, Second Department, affirmed the provider's judgment on that ground. The lower court had granted summary judgment on a different rationale: failure to advise that the claims could be reconsidered upon a showing of impossibility of timely submission.
Trial court, Second Department
Jan 29, 2009
2009 NY Slip Op 50178(U)
Split result
The insurer's speculative fraud allegations did not warrant extensive discovery, but a limited deposition of the provider's owner was allowed. The Civil Court, Richmond County, denied the insurer's motion to dismiss for deficient discovery responses or compel extensive disclosure, except for that deposition. Applying CPLR 3101 (a), the court found no founded belief that an unlicensed professional controlled the provider. Shared billing companies, alleged connections to other clinics, and a physician's affidavit that did not mention the provider failed to establish a connection to fraud. The owner's work at other clinics nevertheless warranted inquiry into the extent of that work, whether those clinics had been judicially found fraudulently incorporated, and the owner's knowledge of their operations.
Trial court, Third Department
Jan 21, 2009
2009 NY Slip Op 50361(U)
Provider prevailed
Overdue no-fault benefits bear simple interest at two percent per month under 11 NYCRR 65-3.9 (a). The Supreme Court, Ulster County, directed judgment for the injured claimant after trial against the excess insurer. The signed NF-2 established an acceptable claim for lost wages, and credible evidence established continuing disability and unpaid benefits. Interest ran from 30 days after each missed payment became due, rather than from the primary insurer's settlement. The court awarded capped attorney's fees under 11 NYCRR 65-4.6 (e), declining additional fees. The excess insurer's objection that the settlement violated payment priority under 11 NYCRR 65-3.15 concerned the insurers' relative rights and could not reduce the claimant's recovery; any remedy against the primary insurer remained open.
Trial court, Fourth Department
Jan 21, 2009
2009 NY Slip Op 29066
Provider prevailed
The insurers' express consent validated service on the Superintendent of Insurance beyond Buffalo City Court's territorial limits. The City Court, Buffalo, denied the insurers' CPLR 3211 (a) (8) motions to dismiss seven assigned no-fault actions. The providers served the Superintendent in Albany or New York City under Insurance Law § 1212. Although New York Constitution, article VI, § 1 (c) limits city-court process geographically, the foreign insurers expressly agreed to service on the Superintendent as a condition of doing business in New York. Following Pohlers v Exeter Mfg. Co. and applying Uniform City Court Act §§ 403 and 404, the court found that consent sufficient to confer personal jurisdiction.
Trial court, Second Department
Jan 13, 2009
2009 NY Slip Op 50060(U)
A workers' compensation carrier may not enforce its statutory lien against the injured claimant's attorneys for their settlement fee. The carrier sought reimbursement from the claimant and the law firm after settlement of a third-party injury claim. Under Workers' Compensation Law § 29 (1), reimbursement excludes reasonable and necessary recovery expenses, including attorney fees. The Supreme Court, Queens County, vacated an earlier dismissal entered without awareness of an adjournment stipulation and granted the law firm's motion under CPLR 3211 (a) (1) and (7). The final paragraph dismissed the complaint against both defendants, although the court expressly left the amount of the lien against the claimant undecided.
Trial court, Second Department
Jan 5, 2009
2009 NY Slip Op 50003(U)
Insurer prevailed
The arbitration award was vacated because the claimant could not be a covered household member of the deceased named insured. The claimant sought no-fault and uninsured motorist benefits under a policy renewed after the named insured's death. The court found fraudulent intent from the claimant's EUO answers and cashing of a refund check payable to the decedent. Even assuming effective renewal, the claimant could not reside in the decedent's household. The Supreme Court, Kings County, vacated the award as irrational under CPLR 7511 (b), finding that the arbitrator exceeded its powers by awarding benefits without coverage, and granted the insurer summary judgment on noncoverage. The stay request was moot; the motions to confirm and amend were denied as moot.
