No-Fault Decisions, July 2009

Appellate Term, Second Department Jul 31, 2009 2009 NY Slip Op 51732(U) Insurer prevailed

W & Z Acupuncture, P.C. v Amex Assur. Co.

⚠ Overruled by Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

The insurer's counsel's affirmation established that the provider's owner failed to appear for duly scheduled EUOs. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss based on the owner's nonappearance. The majority found that a partner in the law firm retained to conduct the EUOs alleged sufficient facts to establish nonappearance. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the assignee's appearance was a condition precedent to policy liability. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's cross motion; a dissent found counsel's personal knowledge insufficiently established.

Appellate Term, Second Department Jul 31, 2009 2009 NY Slip Op 51731(U) Split result

WJJ Acupuncture, P.C. v Utica Mut. Ins. Co.

A Supreme Court stay barred the provider's summary judgment motion on claims involving two assignors but did not cover the third assignor's claim. The Appellate Term, Second Department, reversed the judgment and vacated summary judgment on the stayed claims, denying those branches without prejudice. It preserved the provider's entitlement on the unstayed claim because the insurer's sole appellate argument concerned the stay, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a). The provider's contention that the appealed order was entered on default failed because the CPLR 2219 (a) recitation showed that the insurer's opposing papers had been considered.

Appellate Term, Second Department Jul 31, 2009 2009 NY Slip Op 51733(U) Split result

Great Wall Acupuncture, P.C. v Auto One Ins. Co.

The insurer's cross motion to compel discovery was premature because it was made when the supplemental demand was served, before receipt. The provider had no opportunity to respond or object. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny that cross motion. It otherwise affirmed the conditional direction requiring the insurer to respond to the provider's demands within 60 days or face trial preclusion. Striking the insurer's answer under CPLR 3126 was unwarranted because the provider had not clearly shown willful, contumacious, or bad-faith noncompliance. The order had not compelled the provider's owner's deposition, and the provider's contention that the insurer was not entitled to that deposition lacked merit.

Appellate Term, Second Department Jul 31, 2009 2009 NY Slip Op 51734(U) Split result

Urban Radiology, P.C. v American Tr. Ins. Co.

The insurer's lost-file excuse and potentially meritorious medical-necessity defense supported vacatur of the default on one claim. Under CPLR 5015 (a) (1), the insurer showed a reasonable excuse by explaining that it lost the summons-and-complaint file and promptly moved upon learning of the default. For the peer-reviewed claim, it established denial within 30 days under 11 NYCRR 65-3.8 (c) and Insurance Law § 5106 (a). For the other assignor's claims, it failed to establish timely verification requests under 11 NYCRR 65-3.5 (b), defeating its prematurity defense. The Appellate Term, Second Department, modified the order to vacate the default and compel acceptance of a late answer only for the peer-reviewed claim, leaving the default judgment intact for the remaining claims.

Appellate Term, Second Department Jul 29, 2009 2009 NY Slip Op 51721(U) Provider prevailed

Alexander Alperovich, M.D., P.C. v Auto One Ins. Co.

The insurer's identity-theft defense failed because it showed no assignor involvement or awareness and had not canceled the policy before the accident. The provider sought summary judgment for assigned no-fault benefits, but the Civil Court found factual questions concerning whether the assignor was an innocent third party to the fraud used to obtain the policy. The record contained no evidence of the assignor's participation in or knowledge of that scheme. Applying Vehicle and Traffic Law § 313, the Appellate Term, Second Department, reversed, granted the provider's motion, and remitted for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 (a).

Appellate Term, Second Department Jul 29, 2009 2009 NY Slip Op 51729(U) Insurer prevailed

Astoria Advanced Med., P.C. v Allstate Ins. Co.

The provider's attorney and law firm were disqualified because the attorney, also its sole owner, would almost certainly be a witness. The insurer raised a factual issue concerning the provider's eligibility for no-fault reimbursement under Mallela and showed that the ultimate determination might hinge partly on the attorney's credibility. The Appellate Term, Second Department, affirmed the disqualification order. Applying the attorney-witness restriction in Code of Professional Responsibility DR 5-102, 22 NYCRR 1200.21, now Rules of Professional Conduct rule 3.7, 22 NYCRR 1200.29, it treated disqualification as discretionary and resolved doubt in favor of disqualification.

Appellate Term, Second Department Jul 24, 2009 2009 NY Slip Op 51629(U) Split result

Andromeda Med. Care, P.C. v Utica Mut. Ins. Co.

The insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected. The certificates failed to comply with Real Property Law § 299-a, rendering the affidavits noncompliant with CPLR 2309 (c). The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment dismissing the assigned no-fault claims. It affirmed the denial of the provider's cross motion for summary judgment and sanctions. The provider had not established that its billing records were admissible under CPLR 4518, and its remaining contentions lacked merit. Neither side obtained summary judgment.

Appellate Term, Second Department Jul 24, 2009 2009 NY Slip Op 51634(U) Insurer prevailed

Psychology YM, P.C. v Nationwide Mut. Ins. Co.

The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518. In an action for assigned no-fault benefits, the Civil Court had granted the provider's motion and entered judgment in its favor. The Appellate Term, Second Department, deemed the insurer's appeal to be from that judgment under CPLR 5501 (c), reversed the judgment, vacated the summary judgment order, and denied the provider's motion. The court reached no other issue.

Appellate Term, First Department Jul 22, 2009 2009 NY Slip Op 29313 Provider prevailed

Richard Denise, M.D., P.C. v New York City Tr. Auth.

⚠ Reversed by Richard Denise M.D. P.C. v New York City Tr. Auth. (2012 NY Slip Op 04925)

A no-fault claim against a self-insurer is subject to the six-year statute of limitations in CPLR 213 (2). The self-insurer argued that its strictly statutory liability required suit within three years, although an identical claim against an insured owner had a six-year period. The Appellate Term, First Department, rejected that distinction, reversed the dismissal order, denied the motion, and reinstated the provider's complaint. Mandatory no-fault obligations under Insurance Law § 5103 (a), Vehicle and Traffic Law § 321 (2), and Public Authorities Law § 1215 are not diminished by self-insurance. Following the contractual treatment of uninsured motorist claims in Matter of ELRAC, Inc. v Suero, the court found no legal or compelling policy basis for treating no-fault claims differently.

Appellate Term, First Department Jul 22, 2009 2009 NY Slip Op 51595(U) Provider prevailed

J & S Med. Supplies, Inc. v Republic W. Ins. Co.

The insurer's limitations-based dismissal motion was properly denied under the six-year statute of limitations. The Appellate Term, First Department, affirmed, citing the companion appeal decided the same day, Richard Denise, MD, P.C. v New York City Trans. Auth., No. 07-308. It assumed, without deciding, that the defendant qualified as a self-insurer.

Appellate Term, Second Department Jul 20, 2009 2009 NY Slip Op 29310 Insurer prevailed

V.S. Med. Servs., P.C. v Allstate Ins. Co.

An insurer may prove that a collision was intentional and outside no-fault coverage by a preponderance of the evidence. After a nonjury trial, the provider's complaint for assigned benefits was dismissed for lack of coverage. The provider argued that the insurer had to prove an insurance fraud scheme by clear and convincing evidence. The Appellate Term, Second Department, affirmed, explaining that the insurer needed to establish an intentional collision, not the elements of fraud. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the absence of an accident was the coverage issue. The insurer's unrebutted proof satisfied its burden.

Appellate Term, Second Department Jul 20, 2009 2009 NY Slip Op 51591(U) Insurer prevailed

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co.

The insurer's detailed reasons to suspect fraudulent incorporation entitled it to depose the provider's owner. The provider opposed the insurer's CPLR 3126 motion to dismiss for inadequate discovery responses and failure to produce its owner, and sought a protective order. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granting protection. The insurer had supplied detailed, specific reasons to believe the provider might be ineligible for reimbursement under Mallela, supporting disclosure under CPLR 3101 (a). The court denied the protective order and granted the insurer's motion only to the extent of directing the owner's deposition within 60 days of the appellate order or on an agreed date.

Appellate Term, Second Department Jul 20, 2009 2009 NY Slip Op 51593(U) Insurer prevailed

New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action. The Civil Court had permitted the insurer to add a fraudulent-incorporation defense and directed the provider to produce its owner for a deposition within 60 days, with dismissal for noncompliance. After the provider failed to comply, the Civil Court dismissed the complaint with prejudice on the insurer's opposed application, and judgment was entered. Applying Matter of Aho, the Appellate Term, Second Department, dismissed the provider's appeal from the earlier order.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51570(U) Insurer prevailed

Sweetwater Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

The insurer could amend its answer to add Mallela defenses because the provider showed no prejudice or surprise and the defenses were sufficient. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting leave to assert fraudulent incorporation and resulting lack of standing, and compelling responses to amended discovery demands. Under CPLR 3025 (b), the proposed defenses were neither devoid of merit nor palpably insufficient as a matter of law. The insurer also sufficiently showed that its amended demands were material and necessary to those defenses under CPLR 3101. The provider's appeal was limited to the insurer's cross motion.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51571(U) Split result

Great Wall Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

The insurer established a reasonable excuse for its short answering delay and a potentially meritorious Mallela defense, warranting vacatur. The Appellate Term, Second Department, modified the order to vacate the default judgment, compel acceptance of the late answer, and deem the annexed answer served. Applying CPLR 5015 (a) (1), the court found the claims representatives' affidavits sufficient to excuse the delay; the provider had identified no prejudice. The insurer also made a prima facie showing that the provider might be ineligible for no-fault reimbursement. The court affirmed denial of sanctions against the provider because the record did not support their imposition.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51584(U) Provider prevailed

D.S. Chiropractic, P.C. v Country-Wide Ins. Co.

The insurer's verification follow-ups mailed on the 30th calendar day were premature and did not toll its time to pay or deny. The Appellate Term, Second Department, affirmed judgment granting the provider summary judgment and implicitly denying the insurer's cross motion. Under General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the follow-ups were ineffective, leaving the 30-day period under 11 NYCRR 65-3.8 untolled. The late denials precluded defenses subject to timely denial; the insurer's submissions also failed to support its nonprecludable lack-of-coverage defense. The provider's billing-manager affidavit established admissibility under CPLR 4518, and the insurer's acknowledgment of receipt cured any deficiency in proof of claim mailing.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51568(U) Provider prevailed

Motor Veh. Acc. Indem. Corp. v Modern Art Health Care, P.C.

An appeal does not lie from an order entered on the appealing party's default. MVAIC petitioned under CPLR 7511 to vacate a master arbitrator's award upholding no-fault benefits awarded to a provider. The named respondent moved to dismiss, asserting, among other grounds, that MVAIC had named the wrong party. MVAIC did not oppose that motion, and Civil Court dismissed the petition. The Appellate Term, Second Department, dismissed MVAIC's appeal under CPLR 5511 because the dismissal order was entered on its default, leaving the dismissal of the petition in place.

Appellate Term, First Department Jul 14, 2009 2009 NY Slip Op 51486(U) Provider prevailed

Liberty Med. Group, P.C. v New York Cent. Mut. Fire Ins. Co.

The insurer failed to support its fraud-based challenge to a settlement stipulation with competent evidence. The Appellate Term, First Department, affirmed denial of the insurer's motion to vacate the stipulation and dismiss the provider's no-fault action. Following Hallock v State of New York, the court emphasized that settlement stipulations are favored and not lightly set aside. Five years after agreeing to the settlement on advice of counsel, the insurer offered only conclusory assertions that the underlying claims appeared fraudulent. Information concerning the provider's corporate status had been available when the stipulation was entered.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51572(U) Provider prevailed

Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co.

The insurer's appeal concerning the owner's deposition was dismissed because no motion on notice sought that relief and leave was not granted. In the provider's assigned-benefits action, the insurer moved under CPLR 3126 to dismiss for insufficient interrogatory responses, then served a deposition notice. The provider submitted protective-order papers without a notice of cross motion, and the insurer argued its need for the deposition in reply. The Appellate Term, Second Department, held that the challenged portion of the order was not appealable as of right under CCA 1702 (a) (2) and CPLR 2211. Without leave under CCA 1702 (c), the insurer could not obtain appellate review.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51578(U) Provider prevailed

Radiology Today, P.C. v GEICO Ins. Co.

The insurer's premature verification follow-up left its denial untimely and precluded its medical-necessity defense. The Appellate Term, Second Department, affirmed the judgment awarding summary judgment to the provider on the claim at issue in the appeal. The insurer mailed its follow-up on the 30th calendar day after the initial request. Under General Construction Law § 20 and 11 NYCRR 65-3.6 (b), that follow-up was ineffective and did not toll the determination period under 11 NYCRR 65-3.8. The insurer therefore failed to raise a triable issue. The court did not review the provider's prima facie showing because the insurer raised no appellate challenge to it.

Appellate Term, Second Department Jul 14, 2009 2009 NY Slip Op 51579(U) Provider prevailed

D.S. Chiropractic, P.C. v Country-Wide Ins. Co.

The insurer's verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature. The Appellate Term, Second Department, affirmed judgment granting the provider summary judgment and implicitly denying the insurer's cross motion. Applying General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the court found the follow-ups premature, so they did not toll the 30-day claim-determination period under 11 NYCRR 65-3.8. The provider's billing-manager affidavit established that its supporting documents were admissible under CPLR 4518. The insurer's claims representative conceded receipt of the claims, curing any deficiency in the provider's proof of mailing.

Appellate Term, First Department Jul 13, 2009 2009 NY Slip Op 51474(U) Insurer prevailed

Bronx Expert Radiology, P.C. v Great N. Ins. Co.

The provider failed to justify its delayed claim submission after mistakenly billing the wrong insurer. The Appellate Term, First Department, reversed the judgment after a nonjury trial and dismissed the complaint. Services were rendered in November 2003, but the claims reached the defendant insurer on March 16, 2004. Although mistaken submission to another insurer in December could justify the initial delay under 11 NYCRR 65-3.5 (l), the provider failed to establish when that insurer denied the claims or explain the subsequent delay. The trial court improperly relied on the defendant insurer's failure to show prejudice, as no such requirement appears in the no-fault statute or regulations.

Appellate Term, First Department Jul 13, 2009 2009 NY Slip Op 51475(U)

Bronx Expert Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.

An insurer's medical expert may testify on medical necessity within the original peer review's denial grounds and subject to cross-examination. The Appellate Term, First Department, reversed the judgment entered after exclusion of the insurer's expert and a directed verdict for the provider, and remanded for further proceedings. Reliance in part on the assignor's medical records prepared by the provider did not bar the expert's testimony. Nor did reliance on records prepared by other physicians and submitted to the insurer concerning treatment of injuries arising from the same accident. The insurer therefore should have been permitted to present its expert.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51502(U) Insurer prevailed

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co.

The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the assigned-benefits complaint upon reargument. The insurer's claims-representative affidavit established timely mailing of the denial through its standard office practice and procedure, contrary to the provider's challenge. The examining physician's affirmed report adequately supported the medical-necessity defense, and the provider failed to rebut it. The appeal was limited to the grant of summary judgment.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51495(U) Insurer prevailed

Pan Chiropractic, P.C. v Mercury Ins. Co.

The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint. The claims representative's detailed, personal-knowledge account of office mailing procedures established timely denial. The sworn peer review supplied a factual basis and medical rationale for finding the services unnecessary, supported by the assignor's medical records and reports submitted with the motion. The provider's opposing affidavit neither meaningfully referred to nor discussed that determination, and its remaining contentions lacked merit.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 29299 Provider prevailed

Davydov v Progressive Ins. Co.

The insurer's assignment defense was precluded because it neither sought verification of the facial discrepancy nor denied on that ground. The assignment named the dental provider's professional corporation, while the provider sued individually. The Appellate Term, Second Department, affirmed the provider's judgment after a nonjury trial. Under Insurance Law § 5106 (a), the provider's testimony and exhibits proved mailing and receipt of the billing forms and overdue payment; the services' nature did not alter that burden. Because the insurer offered no evidence of timely mailed denials, its medical-necessity and fee-schedule defenses were precluded, and examination on those subjects was properly curtailed. A dissent would have dismissed for lack of standing because the assignment benefited a different entity.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51492(U) Insurer prevailed

Alur Med. Supply, Inc. v Eveready Ins. Co.

The provider's action was premature because it began before responses to timely verification requests were served. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion for summary judgment dismissing the complaint. The record showed timely mailing of initial and follow-up requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b). Because the provider had not responded before commencing suit, the insurer's time to pay or deny under 11 NYCRR 65-3.8 (a) had not elapsed. The court reached no other issue.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51493(U) Insurer prevailed

563 Grand Med., P.C. v Nationwide Ins. Co.

The provider's arbitration-vacatur petition failed because its sole supporting document was not affirmed under penalties of perjury. The Appellate Term, Second Department, affirmed, on different grounds, the order denying vacatur and confirming the master arbitrator's award upholding denial of assigned no-fault benefits. The provider sought relief under CPLR 7511, but the attorney's purported affirmation said only that the attorney "states as follows" and omitted the declaration required by CPLR 2106. The document therefore was insufficient as an affirmation, and the papers warranted no relief. The court also noted that a special proceeding should terminate in a judgment under CPLR 411.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51494(U) Insurer prevailed

AKS Med., P.C. v Progressive Ins. Co.

The provider failed to prove claim submission because its billing-manager affidavit contradicted the post office ledger on which it relied. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment on the provider's fifth cause of action. Under Insurance Law § 5106 (a), the provider needed proof of claim submission and overdue payment. Proper mailing could establish presumed receipt through evidence of actual mailing or a standard office procedure. The conflicting submissions did not establish mailing of the disputed claim, which the insurer denied receiving. The ruling concerned only the fifth cause of action.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51500(U) Provider prevailed

Proscan Imaging, P.C. v Lumbermens Mut. Cas. Co.

The insurer was properly denied a further trial adjournment after two prior adjournments and delayed efforts to subpoena its witness. At the nonjury trial of the provider's assigned no-fault claims, the parties stipulated to the provider's prima facie case. The insurer then sought an adjournment because a subpoenaed witness had not appeared. Civil Court noted that the insurer had more than a month to subpoena the witness but secured the so-ordered subpoena only the day before trial. The Appellate Term, Second Department, found no improvident exercise of discretion, deemed the appeal from the decision to be from the subsequent judgment under CPLR 5520 (c), and affirmed the judgment for the provider.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51496(U) Provider prevailed

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co.

The provider established prima facie entitlement to summary judgment, and the insurer submitted no opposition. The Appellate Term, Second Department, reversed the order denying the provider's unopposed motion in the assigned no-fault benefits action and granted summary judgment. It remitted the matter to the Civil Court for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 (a) and the implementing regulations.

Appellate Term, Second Department Jul 9, 2009 2009 NY Slip Op 51504(U)

Allstate Ins. Co. v Romeo

The subrogation defendant failed to show a meritorious defense because there was no showing of nonresponsibility for the accident. The insurer sought recovery of no-fault and uninsured motorist benefits paid to its subrogor and obtained summary judgment on default. The Appellate Term, Second Department, reversed the order vacating the default judgment and denied the defendant's vacatur motion. Under CPLR 5015 (a) (1), a reasonable excuse and a meritorious defense were required. The defendant's bare assertion that no money was owed did not establish a defense to responsibility for the underlying accident.

Trial court, Second Department Jul 31, 2009 2009 NY Slip Op 51662(U) Split result

Autoone Ins. Co. v Manhattan Hgts. Med., P.C.

An insurer cannot recover payments made before April 4, 2002, on a fraudulent-incorporation theory under 11 NYCRR 65-3.16 (a) (12). The Supreme Court, Queens County, partially granted defendants' CPLR 3211 (a) (7) dismissal motions in the insurers' recovery and declaratory action. Fraud and unjust-enrichment claims survived for later payments under Mallela; fraudulent-incorporation, unlawful fee-splitting, and independent-contractor declaratory claims also survived. Pre-effective-date recovery claims were dismissed, as were punitive damages against the moving management defendants because the alleged conduct targeted insurers rather than the public. Reimbursement under Public Health Law § 238-a was dismissed because the alleged management-controlled referrals did not fit the statute. The court severed the three independently operating defendant groups under CPLR 1002 and 1003 for lack of a sufficient transactional connection and potential juror confusion.

Trial court, Second Department Jul 31, 2009 2009 NY Slip Op 51663(U) Insurer prevailed

Autoone Ins. Co. v Manhattan Hgts. Med., P.C.

The insurers established grounds to enjoin pending no-fault litigation and arbitration based on a likelihood of proving fraudulent incorporation. The Supreme Court, Queens County, granted preliminary relief against the providers targeted by the motion. The verified complaint, investigator's affidavit, and testimony from other cases made a prima facie showing that licensed professionals did not truly own and operate those providers. Business Corporation Law §§ 1503 (a), 1507, 1508, and 1504 (a) governed professional ownership and services; Mallela and 11 NYCRR 65-3.16 (a) (12) permitted denial of payments to fraudulently incorporated providers. Repetitive proceedings established irreparable injury, and the equities favored deciding the common eligibility issue in one action without undue hardship.

Trial court, Second Department Jul 27, 2009 2009 NY Slip Op 29317 Split result

Custom Orthotics, Ltd. v Government Empls. Ins. Co.

The insurer's inaction on a physician-report response warranted payment, but an unresponsive invoice letter left the other claim premature. In two actions consolidated for trial, the provider's attorney sent identical compliance letters asserting that all available documents had been supplied. The Civil Court, Queens County, found both requests proper under 11 NYCRR 65-3.5 (b) and (c). For the physician-report claim, the response directed the insurer to a physician it had identified; under 11 NYCRR 65-3.2 (e) and (f), the insurer had to respond or pursue the report, and its inaction warranted judgment for the provider. For the invoice-and-payment claim, the letter supplied neither verification nor useful alternative information, required no further response, and left the claim premature; that complaint was dismissed.

Trial court, Second Department Jul 13, 2009 2009 NY Slip Op 51526(U) Provider prevailed

Matter of NY Med. Health P.C. v New York City Tr. Auth.

⚠ Not followed by Country-Wide Ins. Co. v Yao Jian Ping (2024 NY Slip Op 24033)

A self-insurer's unequivocal denial of all no-fault liability excuses later submission of proofs of claim before arbitration. The self-insurer denied coverage on the ground that the accident did not arise from use or operation of its bus. The provider first submitted its bills with its arbitration demand. An arbitrator awarded benefits, and a master arbitrator affirmed. Applying State Farm Ins. Co. v Domotor, the Civil Court, Kings County, held that repudiation excused both the assignor and provider from the proof-of-claim requirement ordinarily governing entitlement under Insurance Law § 5106 (a). Self-insurer obligations under 11 NYCRR 65-2.1 did not change that result. Finding the award supported by a reasonable hypothesis and consistent with settled law, the court granted confirmation and denied the cross-petition to vacate.

Trial court, Second Department Jul 8, 2009 2009 NY Slip Op 51450(U) Insurer prevailed

John Hancock Life Ins. Co. of NY v Hirsch

A life insurance policy never took effect because the insured and policyholder failed to disclose a possible health problem before issuance. The Supreme Court, Westchester County, granted the insurer summary judgment under CPLR 3212 (b), declared the policy void, and directed return of the premiums. Medical reports established that the insured underwent testing and received a cancer diagnosis after applying but before the policy issued. The application made coverage conditional on no deterioration in insurability. The court accepted unsworn reports obtained from the insured's physicians through authorized releases, but excluded illegible notes. The policyholder raised no triable issue and failed to show that discovery would reveal facts defeating the motion.

Trial court, Second Department Jul 6, 2009 2009 NY Slip Op 51620(U) Split result

Lenox Hill Radiology & MIA, P.C. v Global Liberty Ins. Co. of N.Y.

A workers' compensation priority defense is subject to the 30-day denial requirement and does not constitute lack of coverage. The Civil Court, Richmond County, denied the insurer's summary judgment motion and granted the provider's cross motion solely as to that defense. Following Westchester Medical Center v Lincoln General Ins. Co. and Fair Price Med. Supply Corp. v Travelers Indem. Co., the court held that possible workers' compensation benefits presented an offset, not an absence of coverage in the first instance. The insurer's asserted policy misrepresentation did not avoid preclusion. Because the insurer timely denied the claim for lack of medical necessity and submitted a sufficient peer review report, that issue remained for trial.

Trial court, Second Department Jul 6, 2009 2009 NY Slip Op 51424(U) Provider prevailed

Media Neurology, P.C. v Liberty Mut. Ins. Co.

The insurer failed to justify a deposition sought three years after the notice of trial on the basis of a provider principal's indictment. The District Court, Nassau County, denied the insurer's motion to compel. Under 22 NYCRR 212.17 (c), post-notice discovery required unusual and unanticipated circumstances. The insurer had denied the claim only for medical necessity, so Fair Price Medical Supply Corp. v Travelers Ins. Co. precluded a fraud defense. The proposed testimony was therefore not material under CPLR 3101 (a). The indictment could support only impeachment if the principal testified; another employee could establish the provider's prima facie case. The principal also could invoke the Fifth Amendment at a deposition. These circumstances did not warrant reopening discovery.

Trial court, Second Department Jul 6, 2009 2009 NY Slip Op 51432(U) Provider prevailed

Corona Comprehensive Med. Care, P.C. v Global Liberty Ins. Co. of N.Y.

A workers' compensation defense is a statutory offset subject to preclusion unless timely raised in a denial. The Civil Court, Queens County, denied the insurer's summary judgment motion against a provider seeking no-fault benefits for treatment of a for-hire vehicle operator. The insurer argued that workers' compensation was primary because the assignor was working when injured. Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., the court rejected the insurer's characterization of that defense as lack of coverage. Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) required payment or denial within 30 days. The claims manager described receipt and processing of claims but established neither actual mailing nor standard mailing procedures. The court therefore did not reach the defense's potential merit.

Trial court, First Department Jul 2, 2009 2009 NY Slip Op 51818(U) Insurer prevailed

Hastava & Aleman Assoc., P.C. v State Farm Mut. Auto Ins. Co.

Certified mailing of EUO notices does not impose a higher threshold for the presumption of receipt than regular mailing. The insurer supported its pre-answer dismissal motion with affidavits concerning mailing procedures and retained mail lists establishing actual mailing, despite the absence of signed return receipts. The provider did not deny receipt and failed to appear for two scheduled EUOs. The Civil Court, Bronx County, granted the insurer's motion. It also found production of the policy unnecessary: the mandatory EUO endorsement under 11 NYCRR 65-1.1 applied, considering the policy period under Insurance Law § 3425 (a) (8). The verification regulations, including 11 NYCRR 65-3.5 (a), did not distinguish regular from certified mail.