Appellate Division, Second Department
Feb 17, 2009
2009 NY Slip Op 01191
Insurer prevailed
The interest toll under 11 NYCRR 65-3.9 (c) applies to provider assignees as well as injured claimants. After settling other payment issues, the parties disputed when interest began on untimely denied claims. The Appellate Division, Second Department, affirmed the Appellate Term's order remitting for recalculation from commencement of the provider's action, favoring the insurer. The term "applicant" encompassed both claimants and assignees, and the Superintendent's interpretation deserved deference as neither irrational nor unreasonable. Read as a whole, the regulations supported that interpretation. Exempting assignees would reward delay in seeking arbitration or suing, contrary to prompt claim resolution, and give assignees greater rights than their assignors. The statutory interest entitlement arose under Insurance Law § 5106 (a).
Appellate Division, Second Department
Feb 3, 2009
2009 NY Slip Op 00674
Insurer prevailed
The insurer's default judgment vacatur was affirmed, as was denial of the provider's contempt motion over an information subpoena. The Appellate Division, Second Department, found vacatur proper under the circumstances, citing New York & Presbyt. Hosp. v American Home Assur. Co. and DeStaso v Bottiglieri. It dismissed the other provider's appeal for lack of aggrievement under CPLR 5511.
Appellate Term, Second Department
Feb 27, 2009
2009 NY Slip Op 50343(U)
Insurer prevailed
The provider's billing-manager affidavit failed to establish a business-record foundation for the documents supporting summary judgment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its motion, denied the motion, and remanded for further proceedings. The affidavit did not sufficiently demonstrate the billing manager's personal knowledge of the provider's practices and procedures to support admission of the annexed documents as business records. Without admissible supporting documents, the provider failed to establish prima facie entitlement to summary judgment. The insurer raised no issue concerning the denial of its own cross motion, which remained undisturbed.
Appellate Term, Second Department
Feb 24, 2009
2009 NY Slip Op 50332(U)
Split result
A demand for IME reports in a complaint does not establish a proper request for those reports. The provider sought summary judgment by precluding the insurer's medical-necessity defense for failure to furnish the reports. Applying CPLR 3013 and 3014, the Appellate Term, Second Department, found no proper demand and explained that the insurance regulations provided no sanction for failure to supply an IME report upon written request. It upheld denial of summary judgment but modified the order under CPLR 3212 (g) to deem submission of the claim forms and timely denial established. The parties agreed that medical necessity was the only trial issue. The court declined the insurer's request for summary judgment upon searching the record.
Appellate Term, Second Department
Feb 24, 2009
2009 NY Slip Op 50331(U)
Insurer prevailed
The insurer's evidence established a founded belief that the assignors' injuries did not arise from an insured incident. The Appellate Term, Second Department, affirmed the denial of the providers' summary judgment motion, albeit on other grounds. The providers established prima facie entitlement through proof of submitted claims and overdue payment under Insurance Law § 5106 (a), supported by a billing-manager affidavit establishing admissibility under CPLR 4518. In opposition, the insurer submitted a litigation-examiner affidavit, police report, investigator affidavit, and transcripts of statements by the assignors and insured. Those materials supported the lack-of-coverage defense under Central Gen. Hosp. v Chubb Group of Ins. Cos. and defeated summary judgment; the court reached no other issue.
Appellate Term, Second Department
Feb 24, 2009
2009 NY Slip Op 50335(U)
The alleged vehicle owner's repeated defaults showed a pattern of neglect and did not provide a reasonable excuse for vacatur. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied vacatur, and reinstated the insurer's default judgment against that defendant in a subrogation action for no-fault payments. After a stipulated vacatur, the defendant missed trial, causing reinstatement, then repeatedly sought relief and missed another appearance. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious defense. The pattern of neglect rendered the default inexcusable, making vacatur an improvident exercise of discretion; the court did not reach whether the defendant had shown a meritorious defense.
Appellate Term, Second Department
Feb 20, 2009
2009 NY Slip Op 50294(U)
Insurer prevailed
An EUO governed by amended Regulation 68 must be scheduled within a reasonable time after claim receipt, rather than within 30 days. The Appellate Term, Second Department, reversed the provider's judgment, denied its cross motion, granted the insurer summary judgment, and dismissed the action as premature. The accident occurred after the amendment's April 5, 2003 effective date, and the selected EUO date was reasonable. The policy authorized EUO verification under 11 NYCRR 65-1.1, and the provider's owner failed to appear. Scheduling letters sent to counsel were effective because counsel had advised the insurer of representation concerning pending EUO requests. Although the provider established its prima facie case through admissible business records and the insurer's acknowledgment of receipt, the outstanding EUO defeated recovery.
Appellate Term, Second Department
Feb 13, 2009
2009 NY Slip Op 50242(U)
Insurer prevailed
The insurer's cross motion for summary judgment on IME nonappearance was upheld upon sufficient proof of mailing of the requests. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Rejecting the provider's sole challenge, the court found the scheduling-company employee's affidavit sufficient to establish mailing of the IME requests and follow-up requests, following Chi Acupuncture.
Appellate Term, Second Department
Feb 13, 2009
2009 NY Slip Op 50234(U)
Insurer prevailed
The provider waived its objection to the chiropractor's affirmed IME report by failing to raise the defect in Civil Court. In this action for assigned no-fault benefits, the insurer sought summary judgment based on lack of medical necessity. Although chiropractors could not affirm under CPLR 2106, the majority treated the defect as waived and found that the IME report established the insurer's entitlement to judgment. The provider's opposing unsworn report, marked "dictated but not read," had no probative value. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion dismissing the complaint; a dissent would have affirmed because the insurer's proof was inadmissible.
Appellate Term, Second Department
Feb 13, 2009
2009 NY Slip Op 50236(U)
Provider prevailed
The provider's motion to compel the insurer's deposition should have been granted because the insurer neither opposed it nor sought a protective order. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the motion to the extent of directing the insurer to appear for a deposition within 30 days of the appellate order. The ruling followed Crossbay Acupuncture v State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department
Feb 13, 2009
2009 NY Slip Op 50239(U)
Insurer prevailed
The provider's supporting affidavit failed to establish a business-record foundation for the documents submitted on its summary judgment motion. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting summary judgment, and denied the motion. The affiant served as both billing manager and corporate officer, but the affidavit did not sufficiently establish personal knowledge of the provider's practices and procedures to support admission of the annexed documents as business records. The provider therefore failed to demonstrate prima facie entitlement to judgment. Although the insurer had opposed the motion on medical-necessity grounds, the appellate disposition rested on the provider's deficient evidentiary foundation.
Appellate Term, Second Department
Feb 11, 2009
2009 NY Slip Op 50230(U)
Provider prevailed
The insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion. The provider had challenged the timeliness of the denial in opposition. The insurer's litigation-examiner affidavit merely stated that the denial was mailed and did not sufficiently describe the steps comprising its standard mailing practices and procedures. That omission prevented the insurer from establishing a procedure designed to ensure proper addressing and mailing. The insurer therefore failed to support summary judgment on its lack-of-medical-necessity defense; the court reached no other issue.
Appellate Term, Second Department
Feb 10, 2009
2009 NY Slip Op 50224(U)
Provider prevailed
The insurer's untimely EUO request failed to toll its time to pay or deny, precluding its defense based on the provider owner's nonappearance. The provider established its prima facie case under Insurance Law § 5106 (a): its billing manager supplied a business records foundation, and the insurer's denial forms and examiner's affidavit conceding receipt cured any mailing-proof deficiency. The insurer failed to request the EUO timely under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b), so the period under 11 NYCRR 65-3.8 (c) was not tolled. The Appellate Term, Second Department, affirmed the provider's judgment on different grounds from Civil Court, leaving denial of the insurer's motion and grant of the provider's cross motion for summary judgment intact.
Appellate Term, Second Department
Feb 9, 2009
2009 NY Slip Op 50208(U)
Insurer prevailed
The insurer's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint. The Civil Court had apparently treated the examination report as inadmissible despite the chiropractor's accompanying affidavit. The appellate court found that the report and affidavit together supplied a factual basis and medical rationale for the opinion that the services were unnecessary. The insurer also established timely mailing of its denials through its standard office practices and procedures. With that showing unrefuted, the insurer was entitled to dismissal.
Trial court, Second Department
Feb 26, 2009
2009 NY Slip Op 50306(U)
Insurer prevailed
The provider's action was premature because requested CPT codes and medical records remained outstanding after two follow-up verification requests. The Civil Court, Kings County, dismissed the complaint on competing summary judgment motions. Although the provider proved creation and mailing of its bill, the insurer proved timely service of an initial request for an invoice, codes, and records. The provider supplied only an invoice. The insurer acknowledged that response and twice sought the missing materials, without further response. The provider's affiant described responsibility for verification but did not assert that anyone had responded in this matter. The court placed the obligation to verify the claim on the provider, even if the requested materials were held by the referring physician.
Trial court, Second Department
Feb 23, 2009
2009 NY Slip Op 29085
Provider prevailed
A provider need not prove its assignor's New York residency as part of its prima facie case for no-fault benefits against MVAIC. At trial on stipulated facts, MVAIC conceded receipt of the claim and failure to pay or deny it timely; the provider offered no residency proof. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), MVAIC's 30-day period runs from receipt without a prior qualified-person determination. Nonqualification under Insurance Law § 5202 (b) remains a coverage defense despite an untimely denial, but MVAIC bears the burden of proof and submitted no supporting evidence. The Civil Court, Kings County, directed judgment for the provider, with statutory interest and attorney fees.
Trial court, Second Department
Feb 17, 2009
2009 NY Slip Op 29093
Provider prevailed
A provider's technical, nonprejudicial commencement defects are excusable under CPLR 2001 upon payment of the required fees. The District Court, Nassau County, denied the insurer's motion to discontinue or dismiss the no-fault action and directed the provider to purchase a new index number. After a stipulated discontinuance permitting a different provider to sue for the same bills, the provider served an amended complaint under the old index number by regular rather than certified mail. The court excused those defects under CPLR 2001. Alternatively, the insurer waived its objections by failing to move within 60 days after answering under CPLR 3211 (e), which the court interpreted to cover commencement defects, and showed no undue hardship warranting an extension.
Trial court, Second Department
Feb 10, 2009
2009 NY Slip Op 29079
Split result
A provider controlled by an unlicensed individual may be ineligible for no-fault reimbursement regardless of intent at incorporation. The Supreme Court, Nassau County, partly granted the providers' summary judgment motion in consolidated declaratory judgment litigation. Under 11 NYCRR 65-3.16 (a) (12) and Mallela, it rejected their incorporation-intent argument, barred recovery of payments made before April 4, 2002, but allowed challenges to pending earlier claims and fraud claims for subsequent submissions predating Mallela. Fraud was sufficiently pleaded under CPLR 3016 (b). The providers prevailed on independent-contractor and standing defenses: MRI technicians were employees, and accounts-receivable financing assignments preserved standing. Declaratory relief would not itself vacate prior judgments or awards; entry of a declaration was deferred pending resolution of unlicensed control.
