Court of Appeals
Jun 25, 2009
2009 NY Slip Op 05206
Insurer prevailed
An insured's exhaustion of one tortfeasor's limits does not eliminate SUM consent-to-settle and subrogation protections. The Court of Appeals affirmed the permanent stay of the injured claimant's SUM arbitration. After giving notice of one tortfeasor's policy-limit offer, the claimant also settled with another tortfeasor below policy limits without the SUM insurer's consent and executed a release impairing subrogation rights. Under 11 NYCRR 60-2.3 (f), Conditions 9, 10, and 13, exhaustion permits a SUM claim but does not authorize unilateral impairment of subrogation. Condition 10 permits a general release without consent after 30 days' written notice of a policy-limit offer unless the insurer advances that amount. That exception did not cover the below-limit settlement.
Appellate Division, Third Department
Jun 25, 2009
2009 NY Slip Op 05240
Insurer prevailed
The claimants' breach-of-contract action for unpaid no-fault benefits failed for lack of admissible evidence of damages. The Appellate Division, Third Department, affirmed summary judgment dismissing the complaint in the insurer's favor. The injured claimant testified that no medical bills had been paid personally. Although the claimant asserted that a medical insurer had paid bills and claimed a lien against recovery in a separate personal injury action, the record contained no supporting claim, bills, statements, or proof of payment. Damages are an essential element of breach of contract and cannot be established through speculation or bare assertions.
Appellate Term, First Department
Jun 30, 2009
2009 NY Slip Op 51325(U)
Provider prevailed
The insurer failed to establish a founded belief supporting its staged-accident defense, and its policy-exclusion defense was precluded. The Appellate Term, First Department, affirmed the order granting the provider summary judgment for first-party no-fault benefits. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insurer's submission did not establish a founded belief that the alleged injury did not arise from an insured incident. Any policy-exclusion defense was precluded because the insurer failed to deny the claims timely.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51396(U)
Split result
An insurer pursuing a Mallela defense may depose a provider's owner without first showing that interrogatory responses are inadequate. The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel specified corporate and financial discovery and the owner's deposition under CPLR 3124. The provider's untimely objections under CPLR 3122 left only privilege and palpable impropriety available. CPLR 3101 (a) supported disclosure of management and premises agreements, and special circumstances warranted corporate tax returns. The insurer failed to show that the owner's personal tax returns were indispensable and unavailable elsewhere, so their production remained denied at that juncture. The denial of dismissal under CPLR 3126 remained undisturbed; demands concerning precluded defenses were palpably improper.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51395(U)
Insurer prevailed
The insurer established that it never received the provider's claims, and the provider failed to prove mailing. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint. Under Insurance Law § 5106 (a), the provider had to establish submission of claims and overdue payment. Its principal's affirmation proved neither actual mailing nor a standard office practice ensuring proper addressing and mailing. Its attorney lacked personal knowledge of mailing. Because the insurer established nonreceipt and the provider failed to prove mailing, dismissal was proper; the court passed on no other issue.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51385(U)
Provider prevailed
The insurer failed to establish that its medical necessity defense was preserved by timely mailing of the denial. The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a). The insurer supplied no affidavit from a person with knowledge establishing timely mailing through standard office procedures. Its business records challenge was raised for the first time on appeal and was not reached; the court did not pass on the finding that the provider established its prima facie case. Proof of the assignment of benefits form was not an element of that case.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51386(U)
Insurer prevailed
The provider's motion for summary judgment on the disputed bill was denied for failure to establish admissibility of its documents. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, because the medical biller's affidavit did not establish admissibility under CPLR 4518. That ground differed from District Court's reliance on the assignor's failure to appear for scheduled IMEs.
Appellate Term, First Department
Jun 29, 2009
2009 NY Slip Op 51314(U)
Provider prevailed
MVAIC's unexplained failure to comply with discovery demands and a so-ordered stipulation warranted preclusion of its evidence. The stipulation required responses to the provider's written demands or preclusion of the evidence at trial. MVAIC's purported response merely objected that the questions were irrelevant and overbroad rather than providing the requested information. The provider established prima facie entitlement to summary judgment, and preclusion left MVAIC unable to prove the timely denied defenses to which the excluded evidence related. MVAIC also failed to address or support its statute-of-limitations defense in opposition. The Appellate Term, First Department, affirmed the order granting the provider's preclusion motion and awarding summary judgment on the complaint.
Appellate Term, First Department
Jun 29, 2009
2009 NY Slip Op 51312(U)
Insurer prevailed
The insurer's amplified peer review raised a triable issue as to the medical necessity of the provider's services and diagnostic tests. The Appellate Term, First Department, affirmed the order denying the provider's summary judgment motion. The NF-10 form stated that the claim was denied based on an independent peer review, sufficiently identifying the factual basis for denial under 11 NYCRR 65-3.8 (b) (4). The initial report, amplified after the insurer received additional documentation from the provider concerning the claim, supplied sufficient facts to defeat summary judgment.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51372(U)
Provider prevailed
The insurer failed to prove proper mailing of the IME scheduling letters or the assignors' nonappearances. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the provider summary judgment on the bills at issue. The insurer's affidavits did not establish mailing sufficient to create a presumption of receipt, and the insurer also failed to establish that the assignors missed the IMEs. It therefore raised no triable issue. The insurer's business records objection was first raised on appeal and was not reached; the court did not review the finding that the provider established its prima facie case. The matter was remanded for interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51397(U)
Split result
The insurer failed to prove the assignor's EUO and IME nonappearances, while the providers failed to authenticate their billing records. The Appellate Term, Second Department, modified the order by denying the insurer's cross motion for summary judgment dismissing the complaint and affirmed the denial of the providers' motion. The providers' medical biller's affidavit did not establish that the documents submitted were admissible as business records under CPLR 4518. Although the insurer asserted that it had timely denied the claims for failure to attend scheduled EUOs and IMEs, it supplied no admissible proof of nonappearance. Neither side was entitled to summary judgment.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51398(U)
Insurer prevailed
The provider failed to establish a prima facie case because its billing manager's affidavit did not authenticate the supporting records. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion in an action for assigned first-party no-fault benefits. The insurer challenged the provider's prima facie showing, and the affidavit failed to establish that the documents annexed to the moving papers were admissible as business records under CPLR 4518.
Appellate Term, Second Department
Jun 29, 2009
2009 NY Slip Op 51400(U)
Insurer prevailed
The providers failed to establish a prima facie case because their billing manager's affidavit did not authenticate the supporting records. In an action for assigned first-party no-fault benefits, the insurer opposed summary judgment on the ground that the providers had not laid a business records foundation. The Appellate Term, Second Department, affirmed the amended order denying the providers' motion because the affidavit failed to establish admissibility under CPLR 4518; the court reached no other issue.
Appellate Term, Second Department
Jun 25, 2009
2009 NY Slip Op 51357(U)
Insurer prevailed
The provider's summary judgment motion was denied because its biller's affidavit did not establish the admissibility of the annexed documents. The Appellate Term, Second Department, affirmed, concluding that the affidavit failed to establish admissibility under CPLR 4518 and rejecting the provider's remaining contentions without discussing them.
Appellate Term, Second Department
Jun 25, 2009
2009 NY Slip Op 51356(U)
Insurer prevailed
The provider failed to authenticate its supporting records and therefore did not establish entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment on the claim at issue. The billing manager's affidavit failed to establish that the documents annexed to the moving papers were admissible as business records under CPLR 4518. The provider's remaining contentions lacked merit. The court declined the insurer's request to search the record and grant summary judgment dismissing that claim, leaving the denial of the insurer's cross motion on that claim intact.
Appellate Term, Second Department
Jun 23, 2009
2009 NY Slip Op 51335(U)
Provider prevailed
The provider was entitled to depose the insurer for material and necessary discovery under CPLR 3101 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the provider's motion to the extent of compelling the insurer's deposition within 30 days, and denied the insurer's request for a protective order. The majority relied on the parties' entitlement to reasonable discovery of facts bearing on the controversy that would assist trial preparation. One justice concurred in the result only, stating that the deposition should occur after the provider completed the insurer's interrogatories as previously ordered.
Appellate Term, Second Department
Jun 23, 2009
2009 NY Slip Op 51415(U)
Provider prevailed
The insurer failed to prove exhausted coverage because its out-of-state affidavit did not comply with CPLR 2309 (c). The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment for assigned no-fault benefits. Although an untimely denial does not preclude a policy-limit exhaustion defense, the provider had objected to the claims representative's Massachusetts affidavit as inadmissible. The insurer's attorney lacked personal knowledge of exhaustion, so the attorney's affirmation also had no probative value. The insurer's remaining contention was unpreserved and lacked merit. One justice dissented, concluding that the affidavit, attorney's affirmation, and accompanying coverage and payment documents sufficed to defeat the provider's motion.
Appellate Term, First Department
Jun 19, 2009
2009 NY Slip Op 29266
Provider prevailed
An insurer's dispute over priority of no-fault payment must be arbitrated when more than one policy provides coverage. The assignor's insurer denied the provider's claim because the assignor drove a rental car and asserted that the rental car's insurer alone owed benefits. Its own policy expressly covered rental and substitute automobiles. The Appellate Term, First Department, affirmed the provider's judgment after trial. Under Insurance Law § 5105 (b) and 11 NYCRR 65-4.11 (a) (6), the dispute concerned priority of payment and required intercompany arbitration. As the first insurer given notice of proof of claim, the assignor's insurer had to pay under 11 NYCRR 65-3.12 (b) and could not assert the priority dispute as a defense.
Appellate Term, Second Department
Jun 18, 2009
2009 NY Slip Op 29271
The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution. The providers sought summary judgment for assigned no-fault benefits, and the insurer asserted eligibility for workers' compensation. The Appellate Term, Second Department, modified the order, insofar as appealed from, to hold the providers' motion in abeyance rather than deny it without prejudice. The Board had to determine the parties' rights under the Workers' Compensation Law first. Unless the providers filed proof of a Board application within 90 days or showed good cause, the District Court was directed to deny their motion and grant reverse summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 18, 2009
2009 NY Slip Op 51261(U)
Insurer prevailed
The providers failed to establish a prima facie case because their billing manager's affidavit did not establish admissible business records. In their action for assigned no-fault benefits, the providers obtained summary judgment and a resulting judgment. The insurer challenged the foundation for the documents attached to the moving papers under CPLR 4518 (a) and sought to hold the matter in abeyance for a Workers' Compensation Board determination. Its opposition papers did not establish sufficient facts to warrant that relief. The Appellate Term, Second Department, nevertheless reversed the judgment, vacated the order granting summary judgment, and denied the providers' motion because their supporting affidavit failed to establish the documents' admissibility.
Appellate Term, Second Department
Jun 18, 2009
2009 NY Slip Op 51263(U)
Split result
The insurer's workers' compensation defense was precluded for three claims denied after the 30-day determination period. Under 11 NYCRR 65-3.5 (a), the insurer had to deny claims timely to preserve that defense. The Appellate Term, Second Department, modified the order, insofar as appealed from, granting the providers summary judgment on those claims and remitting for interest and attorney's fees. For the reasons stated in the companion appeal decided the same day, No. 2008-281 N C, the remaining, timely denied claims were remitted to be held in abeyance pending an application to the Workers' Compensation Board. Absent proof of that application within 90 days or good cause, the District Court was directed to deny the providers' motion and grant the insurer reverse summary judgment on those claims.
Appellate Term, Second Department
Jun 18, 2009
2009 NY Slip Op 51264(U)
Provider prevailed
The insurer was precluded from asserting a workers' compensation defense because it failed to establish timely mailing of its denial. The providers sought assigned no-fault benefits, and the District Court dismissed the complaint and referred the employment issue to the Workers' Compensation Board. The denial was dated two years after the services were rendered, and the insurer neither alleged nor established timely mailing. Its sole defense was that the assignor was acting as an employee when the accident occurred. The Appellate Term, Second Department, reversed, denied dismissal, granted the providers' cross motion for summary judgment, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jun 18, 2009
2009 NY Slip Op 52822(U)
Insurer prevailed
The provider's billing-manager affidavit failed to establish admissibility of its supporting documents under CPLR 4518. The provider moved for summary judgment in an action to recover assigned first-party no-fault benefits. The insurer opposed the motion, arguing that the affidavit did not establish that the annexed claim form was admissible evidence. The Appellate Term, Second Department, affirmed denial of the provider's motion because the affidavit did not lay the required business-record foundation for the documents annexed to the moving papers. Without admissible supporting documents, the provider failed to make a prima facie showing of entitlement to summary judgment.
Appellate Term, Second Department
Jun 12, 2009
2009 NY Slip Op 51221(U)
Insurer prevailed
The providers' no-fault action was barred by res judicata because a prior declaratory judgment resolved coverage for the same accident. The insurer's wholly owned subsidiary had obtained a default judgment in Supreme Court declaring no coverage after alleging that the accident was staged. The insurer then moved to dismiss the providers' pending action for assigned benefits. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint. Coverage arose from the same transaction in both actions, and a contrary judgment would impair rights established by the declaratory judgment. The record also established the requisite privity between the insurer and its subsidiary. The providers' remaining contentions lacked merit or were unpreserved.
Appellate Term, Second Department
Jun 12, 2009
2009 NY Slip Op 29261
Provider prevailed
The provider's request for nunc pro tunc relief warranted accepting its late filing of the summons and proof of service. The insurer sought dismissal under CPLR 3211 for noncompliance with former CCA 409, which required filing within 14 days of service, or alternatively summary judgment because it never received the claims. The Appellate Term, Second Department, modified the order to deem the acknowledgment of service timely filed under former CCA 411 and otherwise affirmed denial of the insurer's motion. The claims examiner's affidavit did not establish nonreceipt as a matter of law. A dissent would have dismissed without prejudice because the provider's delayed filing and conditional request did not warrant relief.
Appellate Term, Second Department
Jun 12, 2009
2009 NY Slip Op 51218(U)
Provider prevailed
A provider's late filing of the summons and proof of service did not warrant dismissal where nunc pro tunc relief was requested and justified. Former CCA 409 required filing within 14 days after service. The Appellate Term, Second Department, modified the order to deem the acknowledgment of service timely filed under former CCA 411 and otherwise affirmed denial of the insurer's CPLR 3211 motion or alternative request for summary judgment on timely denial. The claims examiner's affidavit failed to establish timely mailing of verification requests and the denial through a proper office practice. A dissent would have dismissed without prejudice, disputing whether the provider requested relief and objecting to the unexplained filing delay of approximately three and one-quarter years.
Appellate Term, Second Department
Jun 12, 2009
2009 NY Slip Op 51219(U)
Insurer prevailed
The insurer established lack of medical necessity, and the treating acupuncturist's unsupported disagreement failed to raise a factual issue. The provider sought assigned no-fault benefits, and the Civil Court denied summary judgment on four bills, leaving medical necessity for trial. The insurer's claim representative established timely mailing of the denials through its standard office practice. An affirmed IME report and the examining acupuncturist's affidavit established prima facie that the disputed services were unnecessary. The treating acupuncturist supplied no facts supporting the contrary conclusion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the claims covered by those four bills.
Appellate Term, Second Department
Jun 8, 2009
2009 NY Slip Op 51147(U)
Insurer prevailed
A billing provider cannot correct claim forms identifying treating professionals as independent contractors after litigation has begun. The insurer sought summary judgment based on forms stating that independent contractors rendered the services. The provider submitted W-2 forms and an owner's affidavit asserting employment and typographical error. Under 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services rendered by independent contractors, and that defense is not subject to preclusion. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the court found the asserted employment status irrelevant because the submitted bills did not entitle the provider to payment. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint.
Appellate Term, Second Department
Jun 8, 2009
2009 NY Slip Op 51145(U)
Insurer prevailed
The insurer established verification tolling and timely denials, and its peer review raised a factual issue concerning medical necessity. The provider established mailing through its billing manager's personal knowledge and admissible claim forms under CPLR 4518. The insurer's litigation supervisor detailed an office practice establishing timely mailing of verification requests and denials. Different final-verification dates on the unsworn denial forms did not contradict the affidavit's dates for initial requests, receipt of verification, and mailing of denials or defeat tolling of the 30-day period. The affirmed peer review supplied a medical-necessity issue for trial. The Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, and denied the provider's motion.
Appellate Term, Second Department
Jun 8, 2009
2009 NY Slip Op 51149(U)
Insurer prevailed
The provider's billing manager failed to lay a business-record foundation, defeating the provider's motion for summary judgment. The supporting affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the documents attached to its motion as business records. The Appellate Term, Second Department, affirmed the order denying summary judgment in the provider's action for assigned no-fault benefits.
Appellate Term, Second Department
Jun 2, 2009
2009 NY Slip Op 51129(U)
Insurer prevailed
The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment. In the action for assigned no-fault benefits, the District Court denied the providers' motion because the supporting affidavit was legally insufficient. The Appellate Term, Second Department, found that the affidavit did not establish admissibility of the attached documents under CPLR 4518 and affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Jun 2, 2009
2009 NY Slip Op 51130(U)
Insurer prevailed
The providers' medical biller failed to establish admissibility of the supporting documents, defeating their motion for summary judgment. The District Court had denied both sides' motions and directed discovery concerning alleged fraudulent incorporation. On the providers' appeal alone, the Appellate Term, Second Department, found their affidavit insufficient under CPLR 4518. It affirmed the order, insofar as appealed from, on that alternative ground.
Appellate Term, Second Department
Jun 2, 2009
2009 NY Slip Op 51131(U)
Insurer prevailed
The provider's billing manager failed to establish admissible business records, defeating the provider's motion for summary judgment. The provider sought assigned no-fault benefits, and the insurer challenged its prima facie showing. The billing manager's affidavit failed to establish that the documents attached to the motion were admissible under CPLR 4518. The Appellate Term, Second Department, affirmed the denial of summary judgment on that ground. It reached no other issue, leaving unaddressed the insurer's additional objections concerning the owner's failure to attend EUOs and unanswered discovery demands about alleged fraudulent incorporation.
Appellate Term, Second Department
Jun 2, 2009
2009 NY Slip Op 51132(U)
Insurer prevailed
The provider failed to establish its prima facie case because its affidavit did not establish admissibility of the supporting documents. In this action for assigned no-fault benefits, the insurer opposed summary judgment by challenging the affidavit of the provider's president and medical biller. That affidavit failed to establish that the attached documents were admissible under CPLR 4518. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment and reached no other issue.
Trial court, Second Department
Jun 30, 2009
2009 NY Slip Op 29264
Insurer prevailed
An insurer's one-day delay in requesting follow-up verification does not eliminate the toll pending receipt of the requested information. The provider never supplied the requested letter of medical necessity but argued that the follow-up request violated 11 NYCRR 65-3.6 (b). The Civil Court, Richmond County, granted the insurer summary judgment dismissing the action as premature. Reading the regulations together, it reasoned that a late follow-up request should not carry a greater penalty than a late additional verification request under 11 NYCRR 65-3.8 (j). The payment-or-denial period under Insurance Law § 5106 (a) had not begun because verification remained outstanding; the court left open whether the one-day delay would reduce that period once verification was received.
Trial court, First Department
Jun 29, 2009
2009 NY Slip Op 51305(U)
Insurer prevailed
An insurer's right to good-faith discovery in a no-fault action is not limited by the regulatory good-cause standard for delaying payment. The Civil Court, New York County, granted the insurer's motion to compel the alleged owner's deposition and complete responses to ownership and operation discovery, and denied the provider's protective order under CPLR 3103. CPLR 3101 (a) and 3106 (a) authorized material and necessary discovery and depositions. The good-cause standard cited under 11 NYCRR 65-3.39 (c) concerned delaying payment for investigation. The alleged owner's EUO testimony in an unrelated proceeding showed limited knowledge of the provider's operations and personnel, furnishing a good-faith basis to investigate ownership; the court did not determine that the provider was fraudulently incorporated.
Trial court, Second Department
Jun 16, 2009
2009 NY Slip Op 51216(U)
Provider prevailed
The bus company could not invoke collateral estoppel without establishing that a final judgment followed the fraudulent-incorporation verdict. The provider sought assigned no-fault benefits for medical services. In a separate action involving other defendants, a jury had found the provider fraudulently incorporated and found that its physician principal had not practiced medicine for the corporation during the relevant years. The Civil Court, Kings County, explained that a verdict or finding alone does not bar relitigation unless followed by a judgment incorporating it. Because the bus company failed to establish entry of a final judgment in the prior action, the court denied its summary judgment motion and directed the parties to proceed to trial.
Trial court, Second Department
Jun 3, 2009
2009 NY Slip Op 51093(U)
Insurer prevailed
The insurer obtained summary judgment because New Jersey law permitted rescission for the insured's material misrepresentation of residence. The insured represented a New Jersey residence and garaging location, but an investigation revealed a New York address. The Civil Court, Kings County, applied contract choice-of-law principles and selected New Jersey law because the policy involved an insurer doing business there and the insured's representations of New Jersey contacts. The misstatements influenced risk assessment and the premium and warranted retroactive cancellation. The provider, as assignee, acquired no greater rights than the insured and could not recover benefits under the void policy. Applying CPLR 3212 (b), the court granted the insurer's unopposed motion and dismissed the action.
