Appellate Division, Second Department
Oct 27, 2009
2009 NY Slip Op 07824
Provider prevailed
The insurer failed to establish a meritorious defense because its timely denial misstated the claim amount and gave an invalid reason. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying vacatur of the hospital's default judgment. CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Although the insurer denied the claim within 30 days after receiving the completed hospital facility form, the denial was fatally defective. Under 11 NYCRR 65-3.4 (c) (11), a denial must provide the prescribed information and specify its grounds; timely issuance alone does not prevent preclusion when the denial is substantively insufficient.
Appellate Division, Fourth Department
Oct 2, 2009
2009 NY Slip Op 06984
Insurer prevailed
The insurer's medical-necessity denials raised a triable issue, and severance was proper for claims arising from 14 unrelated accidents. The Appellate Division, Fourth Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's motion to sever 14 causes of action. The provider established receipt of statutory billing forms and overdue payment, but the insurer's denial forms raised a factual issue concerning medical necessity. Under Insurance Law § 5102 (a) (1) and 11 NYCRR 65-1.1 (d), benefits covered only medically necessary expenses, and the assignee remained subject to that defense. Severance was within the trial court's discretion because unrelated assignors sustained diverse injuries in different accidents and required different treatment.
Appellate Term, Second Department
Oct 23, 2009
2009 NY Slip Op 52222(U)
Provider prevailed
The insurer waived its late-claim defense by failing to advise the provider that reasonable justification could excuse late submission. The provider submitted its claim more than 45 days after rendering the services, and the insurer invoked the 45-day requirement in 11 NYCRR 65-1.1. Under 11 NYCRR 65-3.3 (e), however, the insurer had to communicate the availability of an excuse based on reasonable justification. The insurer also failed to show under CPLR 3212 (f) that outstanding discovery was needed to establish a triable issue. The Appellate Term, Second Department, affirmed the judgment awarding the provider summary judgment for assigned no-fault benefits.
Appellate Term, Second Department
Oct 23, 2009
2009 NY Slip Op 52217(U)
Insurer prevailed
A fraudulent-incorporation defense need not be asserted in a timely denial of claim. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, allowing the insurer to amend its answer and compelling a deposition of the provider's owner. Under CPLR 3025 (b), the amendment was permissible because no prejudice or surprise was shown and the proposed defense was neither devoid of merit nor palpably insufficient. The insurer also demonstrated under CPLR 3101 that testimony concerning the provider's corporate structure was material and necessary. A separate concurrence agreed with the result but objected to the majority's prejudice-or-surprise analysis, emphasizing that any such prejudice must result directly from delay.
Appellate Term, Second Department
Oct 23, 2009
2009 NY Slip Op 52211(U)
Insurer prevailed
The insurer's timely denials and reliance on the chiropractic acupuncture fee schedule raised a triable issue concerning reimbursement. The provider established prima facie entitlement to summary judgment for assigned no-fault benefits under Insurance Law § 5106 (a), shifting the burden to the insurer. The insurer's affidavit established timely mailing of denials through standard office practices and procedures. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the chiropractic fee schedule could properly determine reimbursement for the acupuncture services. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion, but declined the insurer's request to search the record and award it summary judgment.
Appellate Term, Second Department
Oct 23, 2009
2009 NY Slip Op 52208(U)
Insurer prevailed
The insurer established mailing of the IME notices and the assignor's nonappearance, warranting summary judgment dismissing the provider's claims. The insurer's unopposed motion had been denied for failure to prove mailing. A manager of the medical review service retained to schedule and conduct the IMEs described standard procedures for generating, properly addressing, and mailing notices. Affirmations and affidavits from the medical professionals scheduled to perform the examinations established that the assignor did not appear. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint for assigned no-fault benefits.
Appellate Term, Second Department
Oct 23, 2009
2009 NY Slip Op 52210(U)
Insurer prevailed
The insurer's affirmed peer review raised a triable issue of medical necessity despite the provider's challenge to the information reviewed. The provider appealed the denial of summary judgment for assigned no-fault benefits, arguing that the reviewer lacked sufficient information to reach a conclusion. The report instead indicated that pertinent treating-physician reports and other documentation had been requested and supplied, and that those materials did not substantiate medical necessity for the services. The Appellate Term, Second Department, affirmed the denial of the provider's motion and declined the insurer's request to search the record and grant it summary judgment.
Appellate Term, Second Department
Oct 19, 2009
2009 NY Slip Op 52125(U)
Provider prevailed
MVAIC failed to prove nonexhaustion because its motion appeared to include only the last page of the claims examiner's affidavit. MVAIC sought summary judgment dismissing the provider's assigned no-fault action as premature for failure to exhaust remedies against the owner of the vehicle the assignor was driving. The Appellate Term, Second Department, explained that a provider aware of that owner's identity must exhaust remedies against the owner before seeking MVAIC benefits under Hauswirth v American Home Assur. Co. However, the incomplete affidavit did not establish nonexhaustion through someone with personal knowledge. The court affirmed denial of MVAIC's motion, without relying on Civil Court's stated ground concerning verification protocol.
Appellate Term, Second Department
Oct 13, 2009
2009 NY Slip Op 52114(U)
Insurer prevailed
Restoring an action more than one year after it was marked off the trial calendar requires a meritorious claim and a reasonable excuse for delay. The provider's no-fault action was marked off by consent, and the provider moved to restore it more than a year later. Applying 22 NYCRR 208.14 (c) and the cited restoration authorities, the Appellate Term, Second Department, found that the provider had not satisfied those requirements. It affirmed denial of restoration with leave to renew upon a proper showing and a reasonable excuse for the delay.
Appellate Term, Second Department
Oct 13, 2009
2009 NY Slip Op 52111(U)
Insurer prevailed
The insurer's affirmed peer reviews raised a triable issue concerning the medical necessity of equipment supplied to the assignors. The provider established admissible business records under CPLR 4518 through affidavits of its president and records custodian. The insurer's denials acknowledged receipt of the claims, curing any deficiency in mailing proof, and the provider established overdue benefits under Insurance Law § 5106 (a). The insurer's timely denials and peer reviews supplied factual bases and medical rationales for disputing necessity. The provider waived its admissibility challenge to the reviews by first raising it on appeal. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and declined to search the record to award the insurer summary judgment.
Appellate Term, Second Department
Oct 13, 2009
2009 NY Slip Op 52122(U)
Insurer prevailed
The insurer's affirmed peer review raised a triable issue concerning the medical necessity of the MRIs. The provider sought summary judgment for assigned no-fault benefits. Its billing manager's affidavit established the admissibility of supporting documents as business records under CPLR 4518, defeating the insurer's challenge to the provider's prima facie showing. The insurer nevertheless established timely denials based on a peer review supplying a factual basis and medical rationale for finding the services unnecessary. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the order granting its motion, and denied the motion. It declined the insurer's request to search the record and grant it summary judgment.
Appellate Term, Second Department
Oct 6, 2009
2009 NY Slip Op 52067(U)
Insurer prevailed
The insurer established mailing of the EUO notices and the assignor's failure to appear, warranting dismissal of the providers' claims. The providers sought summary judgment for assigned no-fault benefits, and the insurer cross-moved based on EUO nonappearance. The providers' challenges to mailing, the notices' adequacy, and the necessity of an EUO failed. Independently, their billing manager's affidavit did not establish admissibility of the supporting documents under CPLR 4518, so they failed to make a prima facie showing. The Appellate Term, Second Department, affirmed the order denying the providers' motion and granting the insurer's cross motion for summary judgment dismissing the complaint.
Trial court, Second Department
Oct 14, 2009
2009 NY Slip Op 29413
Insurer prevailed
A Mallela defense based on nonphysician ownership or control does not require proof of the elements of common-law fraud. After a defense verdict in joined no-fault actions, the Civil Court, Richmond County, denied the provider's CPLR 4404 (a) motion and authorized dismissal judgments. Under 11 NYCRR 65-3.16 (a) (12) and Business Corporation Law §§ 1507 and 1508, eligibility depends on licensing compliance when services are rendered, not solely at incorporation. The court upheld instructions addressing de facto ownership, control, and the physician shareholder's practice of medicine. It also upheld use of unavailable nonparties' depositions under CPLR 3117 (a) (3) and adverse inferences from their Fifth Amendment invocations, finding them corporate alter egos and material witnesses within the provider's control.
Trial court, Second Department
Oct 1, 2009
2009 NY Slip Op 52261(U)
Provider prevailed
The insurer failed to establish potential merit to its workers' compensation defense because the employer's report was inadmissible hearsay. The insurer sought dismissal of the provider's no-fault action on the ground that the assignor was injured in the course of employment and coverage belonged first before the Workers' Compensation Board. Its claims specialist attached an employer-prepared accident report but did not establish a business-record foundation under CPLR 4518 (a). The affidavit described neither regular procedures for obtaining employment information nor knowledge of the employer's preparation and submission practices or duty to record. The Civil Court, Richmond County, denied summary judgment because admissible proof did not establish employment at the time of the accident; the action was to proceed to trial.
