Court of Appeals
Apr 2, 2009
2009 NY Slip Op 02481
Insurer prevailed
No-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling. The Court of Appeals reversed the order, insofar as appealed from, in the insurer's favor and remitted for recalculation of fees and interest awarded to the providers on summary judgment. Under Insurance Law § 5106 (a) and 11 NYCRR 65-4.6 (e), fees were 20 percent of benefits plus interest, capped at $850 for each insured's aggregate claim. The Superintendent's interpretation warranted deference as neither irrational nor contrary to the statute. Under 11 NYCRR 65-3.9 (c), interest was suspended when the claimant failed to seek arbitration or sue within 30 days after receipt of a denial, even if the denial was untimely.
Appellate Division, Fourth Department
Apr 24, 2009
2009 NY Slip Op 03301
Provider prevailed
An insurer given timely accident notice must show prejudice from late notice of a SUM claim before disclaiming on that ground. The Appellate Division, Fourth Department, affirmed the order, insofar as appealed from, denying the insurer's motion for summary judgment dismissing the injured claimant's SUM action. The claimant promptly reported the May 22, 2000 accident, filed a no-fault claim on July 20, 2000, and gave SUM notice on April 7, 2003. Although the endorsement required notice as soon as practicable, Rekemeyer v State Farm Mut. Auto. Ins. Co. required prejudice where accident notice was timely. The insurer failed to establish prejudice from the delayed SUM notice.
Appellate Division, First Department
Apr 9, 2009
2009 NY Slip Op 02731
Provider prevailed
The insurer failed to establish grounds to vacate a master arbitration award rejecting a precluded fraud defense. The Appellate Division, First Department, affirmed denial of the insurer's CPLR 7511 petition and adherence to that ruling on reargument. Under Fair Price Med. Supply Corp. v Travelers Indem. Co., the master arbitrator rationally found legal error in the arbitrator's fraud determination because the denial did not assert fraud and the defense was subject to 30-day preclusion. Objections under 11 NYCRR 65-4.10 (d) (2) were not raised before the master arbitrator, and no prejudice appeared. Although service by regular mail violated 11 NYCRR 65-4.10 (d) (3), the insurer participated in review and acknowledged that the defect could be harmless.
Appellate Term, First Department
Apr 29, 2009
2009 NY Slip Op 50824(U)
Provider prevailed
The insurer's motion for summary judgment dismissing the provider's no-fault complaint on medical-necessity grounds was denied. The Appellate Term, First Department, affirmed because the insurer's submissions did not conclusively establish its defense of lack of medical necessity as a matter of law.
Appellate Term, Second Department
Apr 28, 2009
2009 NY Slip Op 50860(U)
Insurer prevailed
The insurer's unrebutted IME report and claims affidavit established its entitlement to summary judgment for lack of medical necessity. The Civil Court had denied the insurer's motion, finding a factual issue concerning the necessity of the services, although the provider submitted no opposition papers. The Appellate Term, Second Department, reversed and granted the insurer's motion dismissing the complaint. The claims support services supervisor's affidavit and affirmed IME report established that the claims were properly and timely denied for lack of medical necessity. Because the provider offered no opposition, that prima facie showing remained unrebutted.
Appellate Term, Second Department
Apr 24, 2009
2009 NY Slip Op 50810(U)
Insurer prevailed
The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's medical-necessity showing. The insurer's claims representative established a business-record foundation under CPLR 4518 and timely mailing of the denials through standard office practices. Affirmed IME and peer review reports established that the disputed services were not medically necessary. The insurer specifically objected to the provider's opposing physician affirmation because the physician was a principal of the professional corporation that was a party. Neither the facts nor exhibits referred to in that affirmation could be considered. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer partial summary judgment dismissing the first, second, third, fifth, sixth, and seventh causes of action.
Appellate Term, Second Department
Apr 24, 2009
2009 NY Slip Op 50805(U)
The law-of-the-case doctrine does not apply to prior discovery orders, including a so-ordered discovery stipulation. In a subrogation action to recover paid no-fault and uninsured motorist benefits, the defendant sought dismissal under CPLR 3126 for the insurer's failure to produce its subrogor for an EBT and IME as stipulated. Civil Court instead set new deadlines and conditional sanctions for both parties. The Appellate Term, Second Department, dismissed as academic the appeal concerning the subrogor's EBT because it occurred during the appeal. It affirmed the order, insofar as reviewed, rejecting the defendant's sole remaining objection that the new order violated law of the case and noting that the appellate court was itself not bound by that doctrine.
Appellate Term, Second Department
Apr 24, 2009
2009 NY Slip Op 50806(U)
An arbitration award must be confirmed under CPLR 7511 (e) when the court denies a petition to vacate it. The petitioning no-fault insurer sought reimbursement from the Transit Authority through compulsory arbitration under Insurance Law § 5105 and 11 NYCRR 65-4.10. The arbitrator dismissed both claims, and the Civil Court denied vacatur. The Appellate Term, Second Department, found that the arbitrator's determination was supported by a reasonable hypothesis and was not arbitrary and capricious. It modified the order to add confirmation of the awards and otherwise affirmed, leaving the awards in favor of the Transit Authority intact.
Appellate Term, First Department
Apr 22, 2009
2009 NY Slip Op 50763(U)
Provider prevailed
The insurer's unsworn chiropractor's report was inadmissible and failed to raise a triable issue of medical necessity. The provider established entitlement to summary judgment by proving that the prescribed billing forms were mailed and received and that payment was overdue under Insurance Law § 5106 (a). Even assuming a timely denial, the insurer's report had to be excluded because it was not in admissible form under CPLR 2106. The Appellate Term, First Department, reversed the order denying the provider's motion, granted summary judgment to the provider, and directed entry of judgment.
Appellate Term, Second Department
Apr 20, 2009
2009 NY Slip Op 29164
Insurer prevailed
The provider was collaterally estopped by a prior arbitration finding of fraudulent incorporation and ineligibility for reimbursement. The earlier arbitration between the same parties concerned a different assignor and resolved the identical eligibility issue under Mallela. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer leave to amend its answer under CPLR 3025 (b), and granted summary judgment dismissing the complaint. The provider showed no prejudice or surprise from amendment, and the defense was not palpably insufficient. Arbitration awards can have collateral estoppel effect when the party had a full and fair opportunity to litigate. By failing to address the summary judgment branch, the provider failed to establish the absence of that opportunity.
Appellate Term, First Department
Apr 20, 2009
2009 NY Slip Op 50747(U)
Provider prevailed
The insurer failed to show that it considered the provider's explanation for submitting its claim beyond the 45-day period. The Appellate Term, First Department, affirmed the denial of the insurer's motion for summary judgment dismissing the complaint. Although the claim was concededly late under 11 NYCRR 65-1.1, its submission included correspondence explaining the delay. Under 11 NYCRR 65-3.3 (a) and Matter of Medical Socy. of the State of New York v Serio, insurers must allow reasonable justification for late notice and give due consideration to late-filing explanations, including difficulty identifying the insurer or submission to the wrong insurer. The record did not show that the insurer considered the explanation.
Appellate Term, Second Department
Apr 16, 2009
2009 NY Slip Op 50735(U)
Insurer prevailed
The insurer's affirmed peer review raised a medical-necessity issue, and the provider waived its objection to the stamped signature. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. The claims employee's affidavit established timely mailing of the denial through standard office procedures, and the peer review supplied admissible evidence that the supplies were unnecessary. The provider's signature objection was raised for the first time on appeal and was waived. The majority did not review the provider's prima facie case because the insurer did not challenge it; a separate concurrence in the result maintained that appellate courts should always consider whether that showing was made.
Appellate Term, Second Department
Apr 16, 2009
2009 NY Slip Op 50736(U)
Insurer prevailed
The insurer established that its insured's vehicle was not involved in the alleged hit-and-run accident, and the provider raised no factual issue. The insurer supported its summary judgment motion with affidavits from the insured and the insured's spouse stating that neither they nor their vehicle had been involved in the Brooklyn accident. They also stated that only they had access to the vehicle and that they had not visited Brooklyn in over 30 years. The provider opposed solely through an attorney affirmation challenging the sufficiency of that proof. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint because the provider failed to rebut the insurer's prima facie showing.
Appellate Term, Second Department
Apr 16, 2009
2009 NY Slip Op 50737(U)
Insurer prevailed
The insurer's credited peer-review testimony established lack of medical necessity for the supplies, and the provider offered no rebuttal. The parties stipulated to the provider's prima facie case and mailing of the verification requests and denials, leaving medical necessity as the sole trial issue. After a nonjury trial, the Civil Court dismissed the complaint. The Appellate Term, Second Department, affirmed the judgment for the insurer. Applying the fair-interpretation-of-the-evidence standard, it found no basis to disturb the trial court's determination because the insurer's expert testimony established the defense and the provider offered no evidence that the supplies were medically necessary.
Appellate Term, Second Department
Apr 16, 2009
2009 NY Slip Op 50739(U)
Insurer prevailed
A denial form is not invalid for omitting irrelevant sections if it is approved and specifically identifies the medical-necessity defense. The provider appealed the grant of the insurer's cross motion for summary judgment, challenging omissions in the denial form. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. The insurer established that the Department of Insurance approved the form, and the denial promptly identified lack of medical necessity based on a peer review with sufficient specificity. The defense therefore was not precluded. The affirmed peer review established lack of medical necessity for the supplies, and the provider offered no rebuttal evidence. The provider's remaining arguments were raised for the first time on appeal and also lacked merit.
Appellate Term, Second Department
Apr 14, 2009
2009 NY Slip Op 50732(U)
Provider prevailed
The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient. For the second cause of action, the insurer submitted a timely denial and an affirmed peer review report bearing an electronic signature. The record did not show that the reviewing doctor placed the signature on the report or directed its placement, so the report was not competent summary judgment evidence. For the first, third, and fourth causes of action, the insurer established timely fee-schedule denials but supplied insufficient evidence that the charges exceeded permissible amounts. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion for summary judgment dismissing the provider's complaint.
Appellate Term, Second Department
Apr 14, 2009
2009 NY Slip Op 50731(U)
Insurer prevailed
The provider failed to rebut the insurer's IME proof that the supplied items were not medically necessary. The insurer moved for summary judgment dismissing the assigned no-fault claims, and the provider cross-moved for summary judgment. The insurer's claims representative's affidavit and affirmed IME report established that the claims were properly and timely denied for lack of medical necessity. The provider did not rebut that showing. Its remaining contentions were raised for the first time on appeal and, in any event, lacked merit. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 10, 2009
2009 NY Slip Op 29155
Insurer prevailed
The provider's billing witness failed to lay a business records foundation, leaving the provider without a prima facie case at trial. The witness worked for an outside billing company that received, printed, and mailed the provider's records without incorporating them into its own records. Even assuming familiarity with the provider's practices and competence to testify about them, the witness did not supply the foundation required by CPLR 4518 (a). Without admissible evidence, including claim forms, the provider failed to establish entitlement to payment under Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the provider's judgment and dismissed the complaint, stating that Pine Hollow Med., P.C. v Progressive Cas. Ins. Co. should no longer be followed to the extent inconsistent.
Appellate Term, First Department
Apr 9, 2009
2009 NY Slip Op 50621(U)
Insurer prevailed
The provider failed to justify its six-month delay in submitting claims to MVAIC after learning that another insurer had denied benefits. The provider had initially submitted its no-fault claims to another insurer and later sought payment from MVAIC. Even assuming that the initial submission was inadvertent and excused the initial delay under 11 NYCRR 65-3.5 (l), the provider supplied no reasonable justification for the ensuing six-month delay. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted MVAIC's motion for summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Apr 7, 2009
2009 NY Slip Op 50657(U)
Provider prevailed
The insurer's follow-up verification requests mailed on the 30th calendar day were premature and did not toll its time to deny the claim. The Appellate Term, Second Department, affirmed the provider's judgment entered on summary judgment. Under General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the follow-up requests were without effect because they preceded expiration of the period for supplying verification. The insurer therefore failed to timely deny the claim and was precluded from asserting lack of medical necessity under Fair Price Med. Supply Corp. v Travelers Indem. Co. The appellate court did not review the provider's prima facie showing because the insurer raised no issue concerning it.
Appellate Term, Second Department
Apr 3, 2009
2009 NY Slip Op 50586(U)
Insurer prevailed
The insurer's supervisor affidavit and affirmed peer review established a timely medical-necessity denial sufficient to defeat summary judgment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, and denied the provider's motion. The provider established its prima facie case under Insurance Law § 5106 (a), with its billing manager's affidavit supplying admissible business-record proof under CPLR 4518. The insurer's acknowledgment of receipt cured any deficiency in proof of mailing, and the provider did not have to prove its costs. Contrary to the Civil Court's determination, the insurer's submissions established a proper, timely denial based on lack of medical necessity and raised a triable issue. The appellate court reached no other issue.
Appellate Term, Second Department
Apr 1, 2009
2009 NY Slip Op 50584(U)
Insurer prevailed
The provider's officer affidavit failed to establish the personal knowledge needed to admit its supporting documents as business records. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion. The affidavit did not establish familiarity with the provider's practices and procedures sufficient to lay a foundation under CPLR 4518, so the provider failed to make its prima facie showing. The court also rejected the provider's objection to consideration of the insurer's untimely opposition papers because the Civil Court considered the provider's reply papers as well.
Appellate Term, Second Department
Apr 1, 2009
2009 NY Slip Op 50583(U)
Provider prevailed
The insurer's affidavits failed to establish mailing of the IME scheduling letters, defeating its IME nonappearance defense. The providers established their prima facie entitlement through statutory claim forms and their billing manager's affidavit under CPLR 4518 and Insurance Law § 5106 (a). The insurer's proof did not support a presumption that the assignor received the scheduling letters. The appellate court also found that the insurer failed to timely deny the claims and was precluded from asserting its defenses. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the providers summary judgment on the claims denied for IME nonappearance, and remanded for calculation of statutory interest and assessment of attorney fees.
Trial court, Second Department
Apr 30, 2009
2009 NY Slip Op 50877(U)
The insurer's peer review raised a medical-necessity issue but did not establish entitlement to summary judgment on the MRI claims. The Civil Court, Richmond County, denied both the provider's motion and the insurer's cross motion for summary judgment. The provider established its prima facie case through its billing manager's affidavit and proof of mailing under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The sworn peer review questioned why the MRIs were ordered and how they would assist treatment, sufficiently raising a factual issue. Under CPLR 3212 (b), however, the report alone did not establish lack of medical necessity as a matter of law, even without rebuttal evidence. The court distinguished the proof needed to defeat the provider's motion from that needed to obtain judgment.
Trial court, First Department
Apr 30, 2009
2009 NY Slip Op 50874(U)
Insurer prevailed
An insurer's admission of receiving claim forms through a notice to admit does not establish the truth of the forms' contents. The Civil Court, Bronx County, dismissed the providers' actions because they failed to establish a prima facie case and called no witnesses. Under CPLR 3123 (a), a notice to admit may properly establish receipt of claim forms, including through a failure to respond within 20 days. Following Bajaj v General Assur. Co., however, the court required a foundation under CPLR 4518 establishing that the forms were admissible business records. Receipt alone did not satisfy that requirement. The court distinguished sworn interrogatory responses and followed the Appellate Term, Second Department, precedent in the absence of contrary First Department authority.
Trial court, First Department
Apr 20, 2009
2009 NY Slip Op 50719(U)
Provider prevailed
The insurer failed to establish material reliance on the assignor's residency misrepresentations to justify rescission under Virginia law. The Civil Court, New York County, denied the insurer's summary judgment motion against a transportation provider seeking assigned no-fault benefits. Applying the grouping-of-contacts analysis, the court found that Virginia law governed the policy. Virginia Code § 38.2-309 required proof both of falsity and of reliance material to the decision to insure the risk. Although misrepresentations were shown, the underwriter's affidavit did not sufficiently establish material reliance or that truthful answers would have influenced issuance. The assignor's EUO also left unclear whether the application preparer knew of the misrepresentations. The court therefore did not address deficiencies in the provider's opposition.
Trial court, Second Department
Apr 6, 2009
2009 NY Slip Op 50693(U)
Provider prevailed
The insurer's peer reviews failed to establish lack of medical necessity, and its affidavit failed to establish timely mailing of the denials. The District Court, Nassau County, denied the insurer's motion and granted the provider's cross motion for summary judgment, with interest and legal fees. The peer reviews did not establish the doctor's qualifications, identify generally accepted practices, or explain departures from those practices. The mailing affidavit did not establish familiarity with the issuing representative's practices or compliance with company procedures. The medical-necessity defense required timely denial under 11 NYCRR 65-3.8. The provider's billing affidavit and the insurer's denials established submission within 45 days under 11 NYCRR 65-1.1, and the insurer admitted nonpayment.
Trial court, Second Department
Apr 3, 2009
2009 NY Slip Op 29145
Insurer prevailed
An insurer need not notify a prospective provider of an IME cutoff determined before submission of the provider's claim. The Civil Court, Richmond County, denied the provider's summary judgment motion and directed the action to trial. The provider established its prima facie case through its billing manager's affidavit, but the insurer timely denied certain claims submitted more than 45 days after treatment under 11 NYCRR 65-1.1 (b) and 65-2.4 (c). All claims were denied for lack of medical necessity under preclaim IMEs. The verification notice requirements of 11 NYCRR 65-3.5 and 65-3.6 did not apply. The cutoff preceded treatment by approximately six months, and the assignors, who apparently knew benefits were cut off, were obligated to inform later providers.
Trial court, First Department
Apr 2, 2009
2009 NY Slip Op 50565(U)
Provider prevailed
The insurer's conclusory affidavit failed to establish a founded belief that the assignor's injuries arose from a staged accident. The Civil Court, New York County, granted the provider's summary judgment motion and denied the insurer's cross motion. The provider established submission of its claims and overdue payment under Insurance Law § 5106 (a), with the insurer's denials acknowledging receipt. Although the denials exceeded the 30-day period under 11 NYCRR 65-3.8 (a), the lack-of-coverage defense remained available. The claims representative lacked personal knowledge of the investigation, and the insurer supplied neither an investigator's affidavit nor the EUO transcripts underlying the asserted discrepancies. Its unsubstantiated hypotheses and suppositions did not raise a triable issue.
