Appellate Term, Second Department
May 28, 2009
2009 NY Slip Op 51089(U)
Provider prevailed
The insurer's assertion of clerical inadvertence did not establish a reasonable excuse for its default in answering. The provider's earlier application for a default judgment preserved its objection to untimeliness despite retaining the late answer beyond CPLR 2101 (f)'s two-day period. Because judgment had already been entered, the insurer should have sought vacatur under CPLR 5015 (a), rather than acceptance or an extension under CPLR 3012 (d). Either remedy required a reasonable excuse and a meritorious defense. Although CPLR 2005 permits consideration of law office failure, counsel provided no detailed, evidentiary explanation for the clerical oversight. The Appellate Term, Second Department, affirmed denial of the insurer's motion and did not reach whether a meritorious defense was shown.
Appellate Term, Second Department
May 28, 2009
2009 NY Slip Op 51082(U)
Insurer prevailed
The provider's appeal was dismissed because it did not challenge the insurer's summary judgment dismissing the complaint. The Civil Court denied the provider's motion for summary judgment for an insufficient business-record foundation and granted the insurer's cross motion based on lack of medical necessity. The provider limited its appeal to denial of its own motion and offered no argument for reversing dismissal. The Appellate Term, Second Department, therefore did not reach the provider's prima facie showing: resolving that issue could not alter the ultimate outcome while the insurer's summary judgment remained unchallenged.
Appellate Term, Second Department
May 28, 2009
2009 NY Slip Op 51083(U)
Provider prevailed
The insurer's inconsistent statements about receipt of the claims defeated its motion for summary judgment based on lack of medical necessity. In the provider's action for assigned no-fault benefits, the insurer's claims representative stated both that the claims were not received before suit and that they were received on specified dates before suit and then timely denied. That inconsistency prevented the affidavit from establishing the insurer's prima facie entitlement to dismissal. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.
Appellate Term, Second Department
May 27, 2009
2009 NY Slip Op 51073(U)
Insurer prevailed
The insurer's timely motion to vacate the notice of trial was warranted because the provider incorrectly certified that discovery was complete. The insurer served deposition notices and other discovery demands with its answer. The provider later filed a notice of trial and certificate of readiness without attending a deposition or complying with the other demands. The Civil Court denied vacatur on laches grounds based on the interval between the demands and the trial notice. The Appellate Term, Second Department, reversed and granted vacatur under 22 NYCRR 208.17 (c). The erroneous readiness certification and undisputed outstanding discovery required vacating both documents, and laches did not warrant denying the insurer's motion.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 29228
Split result
An insurer cannot revive a precluded fee schedule defense through an unjust enrichment counterclaim based on overpayments. The Appellate Term, Second Department, upheld denial of amendment under CPLR 3025 (b) because untimely denials precluded the proposed counterclaim. It modified the order, insofar as appealed from, to dismiss the first and seventh causes and the paid claim within the third because principal and interest were paid. It also dismissed the second and eighth causes for attorney fees under 11 NYCRR 65-4.6 (i): providers failed to rebut excessive charges with evidence of interpretation differences or inadvertent error. Remaining medical necessity claims survived because a physician's affirmation raised factual issues; the opposition-timing objection and fifth and sixth causes were not properly before the court.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51023(U)
Insurer prevailed
The insurer supported a founded belief that the injuries did not arise from an insured incident despite failing to prove timely denials. The insurer failed to establish timely mailing of EUO scheduling letters under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), so it did not establish tolling of the 30-day period under 11 NYCRR 65-3.8 or preserve its EUO nonappearance defense. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the coverage defense remained available. Witness transcripts and affidavits supported the requisite founded belief. The Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, and denied the provider's motion; a dissent found the coverage evidence insufficient and would have affirmed.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51030(U)
Insurer prevailed
The provider failed to prove its trial prima facie case because it did not establish admissibility of its claim forms as business records. At the nonjury trial, objections were sustained to the claim forms, assignment, and denials, and then to the provider's notice to admit and the insurer's response. The provider contended that those materials and an affidavit opposing its withdrawn summary judgment motion established its case. Following Bajaj v General Assur. Co., the provider still bore the burden of introducing admissible claim forms, including through a witness laying a business-record foundation, which it failed to do. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint upon the insurer's CPLR 4401 motion.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 29229
Provider prevailed
An action to recover first-party no-fault benefits from a self-insurer is governed by the six-year limitation period in CPLR 213 (2). The self-insurer obtained summary judgment on the theory that its liability arose solely by statute and was subject to CPLR 214 (2)'s three-year period. The Appellate Term, Second Department, reversed and denied its motion. Insurance Law § 5103 (a), 11 NYCRR 65-1.1, and 11 NYCRR 65-2.1 impose essentially equivalent no-fault obligations on insurers and self-insurers. Applying ELRAC, Inc. v Ward and the contractual treatment of mandated coverage, the court concluded that self-insurance cannot diminish the claimant's rights and that the same six-year period governs both forms of coverage.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51022(U)
Insurer prevailed
The insurer raised a factual issue by supporting a founded belief that the assignor's alleged injuries did not arise from an insured incident. The provider obtained summary judgment in an action for assigned no-fault benefits. The sole appellate issue concerned the sufficiency of the insurer's noncoverage evidence. Applying Central Gen. Hosp. v Chubb Group of Ins. Cos., the majority found sufficient the attorney's affirmation, transcripts of witness statements and testimony, and affidavits of the no-fault specialist and investigator. The Appellate Term, Second Department, reversed the judgment, vacated the order granting summary judgment, and denied the provider's motion; a dissent considered the evidence insufficient and would have affirmed.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51029(U)
Provider prevailed
The insurer failed to establish a breached deposition stipulation because it did not show that a deposition had been scheduled. A so-ordered stipulation required the provider to appear for a deposition within 60 days and imposed conditional trial preclusion for noncompliance. The stipulation set a deadline, not a deposition date. Without proof of a scheduled deposition and nonappearance, striking the complaint under CPLR 3126 was unwarranted. The insurer's cross motion was properly considered despite service 16 days late because the provider showed no prejudice. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the cross motion, and denied it; a dissent would have enforced preclusion and affirmed dismissal.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51025(U)
Insurer prevailed
The providers' motion for summary judgment against MVAIC was denied for failure to establish a business-record foundation. The Appellate Term, Second Department, affirmed the order because the supporting affidavit from the providers' billing manager failed to comply with CPLR 4518, without explaining the affidavit's deficiency.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51026(U)
Insurer prevailed
The insurer proved at trial that the loss did not arise from an insured incident, and the provider failed to establish collateral estoppel. The parties stipulated to the provider's prima facie case. The provider sought preclusive effect for a prior summary judgment order concerning another assignor injured in the same accident, which had found the investigator's affidavit insufficient to support a founded belief of noncoverage. The provider did not show that identical, decisive issues had been determined previously. After the investigator testified and documents were admitted without objection, the insurer met its trial burden of proving noncoverage. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after the nonjury trial.
Appellate Term, Second Department
May 22, 2009
2009 NY Slip Op 51031(U)
Provider prevailed
The insurer's inconsistent affidavit about claim receipt and disputed peer review signatures defeated summary judgment on medical necessity. The claims representative asserted both nonreceipt before suit and receipt on specified dates before suit followed by timely denials. That inconsistency defeated the insurer's prima facie showing. Independently, apparently identical signatures on the affirmed peer review reports raised a factual question about compliance with CPLR 2106, considered with General Construction Law § 46. The provider raised that objection both below and on appeal, and the signature issue could not be resolved on summary judgment. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied its motion.
Appellate Term, Second Department
May 19, 2009
2009 NY Slip Op 51016(U)
Split result
The providers obtained partial summary judgment for untimely denials, unproved verification tolling, and unsworn peer reviews. Under 11 NYCRR 65-3.5 (b), timely verification requests can extend the 30-day determination period, but the insurer failed to prove outstanding verification. Nine medical provider claims and three chiropractic claims were overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a); unsworn acupuncture peer reviews failed to defeat three acupuncture claims. Timely denials and affirmed peer reviews defeated summary judgment on three remaining medical provider claims and two chiropractic claims. The Appellate Term, Second Department, modified the order to grant summary judgment on those fifteen claims and remanded for interest, attorney's fees, and further proceedings on all remaining claims. It declined review of the unpreserved business-record objection.
Appellate Term, Second Department
May 19, 2009
2009 NY Slip Op 51017(U)
Insurer prevailed
Acupuncture services rendered by a licensed acupuncturist may be reimbursed at the workers' compensation fee schedule rate for chiropractors. The provider billed 21 sessions at $90 each, while the insurer paid $29.30 per session and timely denied the balance as exceeding the applicable schedule. The claims employee's affidavit established mailing through a standard office practice, contrary to the provider's challenge. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the insurer properly used the chiropractic acupuncture schedule despite the provider's reliance on prevailing local fees. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer summary judgment, and dismissed the complaint.
Appellate Term, Second Department
May 19, 2009
2009 NY Slip Op 29226
Insurer prevailed
The provider's conclusory claim that counsel failed to calendar the trial date did not reasonably excuse its default. The action for assigned no-fault benefits was dismissed because the provider was unready to proceed, and the provider later sought vacatur and restoration. The Appellate Term, Second Department, affirmed the judgment, leaving denial of vacatur in place. Because the action was dismissed rather than stricken from the calendar, the restoration provision in 22 NYCRR 208.14 (c) did not apply. The dismissal was a default under 22 NYCRR 208.14 (b) (2), requiring a reasonable excuse and a meritorious claim under CPLR 5015 (a). The factually unsupported calendaring explanation alone warranted denial.
Appellate Term, Second Department
May 14, 2009
2009 NY Slip Op 50971(U)
Insurer prevailed
The provider failed to prove submission of its claim, and a denial concerning a different claim did not establish receipt. The provider moved for summary judgment for assigned no-fault benefits. Although its affidavit laid a sufficient business-record foundation for the annexed claim form under CPLR 4518, it did not establish that the form was submitted to the insurer. The annexed denial related to a claim arising on a different date and seeking a different amount, so it was not an admission of receipt of the claim sued upon. The provider therefore failed to establish entitlement to overdue benefits under Insurance Law § 5106 (a). The Appellate Term, Second Department, affirmed denial of summary judgment on grounds different from Civil Court's.
Appellate Term, Second Department
May 8, 2009
2009 NY Slip Op 29508
Split result
Follow-up verification requests mailed on the 30th day after the initial requests are premature and do not toll claim determination periods. Under 11 NYCRR 65-3.6 (b) and General Construction Law § 20, the insurer's follow-ups were ineffective, leaving its remaining defenses precluded by untimely denials. The provider established entitlement under Insurance Law § 5106 (a); the insurer's receipt admissions cured mailing-proof deficiencies, and the claim forms were admissible under CPLR 4518. A timely fee-schedule denial concerning a service allegedly included in another service defeated summary judgment on that claim. The Appellate Term, Second Department, modified the judgment by severing that claim and denying summary judgment on it, otherwise affirmed the provider's recovery, and remanded; one justice dissented.
Appellate Term, Second Department
May 8, 2009
2009 NY Slip Op 52500(U)
Insurer prevailed
The insurer's claims specialist affidavit sufficiently established mailing of the verification requests supporting dismissal as premature. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's summary judgment cross motion. The insurer sought dismissal because the provider had not responded to verification requests. On appeal, the provider argued that the affidavit showed neither personal knowledge of mailing nor standard office procedures ensuring proper addressing and mailing. The court rejected that challenge under Residential Holding Corp. v Scottsdale Ins. Co. and Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. The provider's remaining contentions either lacked merit or were improperly raised for the first time on appeal.
Appellate Term, Second Department
May 8, 2009
2009 NY Slip Op 52501(U)
Provider prevailed
The insurer's follow-up verification requests mailed on the 30th calendar day after its initial requests were premature and ineffective. The Appellate Term, Second Department, affirmed denial of the insurer's summary judgment motion in the provider's action for assigned no-fault benefits. The majority relied on General Construction Law § 20, 11 NYCRR 65-3.6 (b), and St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., the companion appeal decided the same day, No. 2008-437 Q C. One judge dissented and would have reversed and granted the insurer's motion for the reasons stated in the dissent in that companion appeal.
Appellate Term, Second Department
May 8, 2009
2009 NY Slip Op 52505(U)
Insurer prevailed
The provider failed at trial to establish that payment of its no-fault claims was overdue. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after a nonjury trial. The provider's sole witness, its biller, testified to generating and personally mailing the bills, while the insurer called no witnesses. Under Insurance Law § 5106 (a), the provider's prima facie case required proof of submitted claim forms stating the fact and amount of loss and overdue payment. Neither admission of the bills into evidence nor prosecution of the action permitted an inference that payment was overdue or relieved the provider of proving that element.
Trial court, Second Department
May 13, 2009
2009 NY Slip Op 50937(U)
Insurer prevailed
A medical provider cannot recover assigned no-fault benefits for services rendered by independent contractors rather than by it or its employees. Applying 11 NYCRR 65-3.11 (a), the Supreme Court, Queens County, denied the provider defendants' motion for partial summary judgment dismissing the insurer's third and fourth causes of action. Those claims sought declarations that the insurer need not pay for independent-contractor services and presented a justiciable controversy under CPLR 3001. The court also denied the requested declaration that six Insurance Department opinion letters were irrational and undeserving of deference. No counterclaim sought that relief, and such a ruling would be advisory because the letters made no final determination of the insurer's conduct.
