Appellate Division, Second Department
Nov 24, 2009
2009 NY Slip Op 08826
Split result
A court denying vacatur or modification of a no-fault arbitration award must confirm the award under CPLR 7511 (e). The insurer failed to establish statutory grounds for vacating a master award confirming payment of benefits. The arbitrator acted within the discretion afforded by 11 NYCRR 65-4.2 (b) (3) (ii) in rejecting late submissions, and the master award had evidentiary support and a rational basis. The Appellate Division, Second Department, modified the order to confirm the award, otherwise affirmed, and remitted for judgment. The provider's requests for sanctions under 22 NYCRR 130-1.1 and attorney fees under 11 NYCRR 65-4.6 (d) lacked merit; the court did not reach the insurer's remaining contention.
Appellate Division, Second Department
Nov 17, 2009
2009 NY Slip Op 08585
Insurer prevailed
A provider that ignored two verification requests was estopped from invoking preclusion based on a follow-up sent three days early. The insurer timely requested verification seven days after receiving the claim, then followed up 27 days after its initial request. Although the follow-up did not strictly comply with 11 NYCRR former 65.15 (e) (2), the provider's failure to respond to either request made preclusion inequitable under these circumstances. Under 11 NYCRR former 65.15 (g) (1) (i) and (2) (iii), the payment-or-denial period had not begun, making the action premature. The Appellate Division, Second Department, reversed the Appellate Term and Civil Court orders, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint without prejudice to a new action.
Appellate Term, Second Department
Nov 19, 2009
2009 NY Slip Op 52379(U)
Insurer prevailed
The insured's unrebutted affidavit established that the insured vehicle was not involved in the accident allegedly injuring the assignor. The Appellate Term, Second Department, affirmed the order granting reargument and, upon reargument, summary judgment dismissing the provider's complaint. The prior motion had been denied with leave to renew because a certificate of conformity was missing. The insured averred that no pedestrian had been struck and that the vehicle never contacted the assignor, although it had stopped at the alleged accident scene. That evidence established the insurer's prima facie entitlement to judgment. The provider failed to rebut those assertions or supply facts raising a triable issue.
Appellate Term, Second Department
Nov 19, 2009
2009 NY Slip Op 52383(U)
Split result
The insurer's founded belief of a staged accident defeated the provider's motion but did not establish entitlement to dismissal. The Appellate Term, Second Department, modified the amended order to deny the insurer's summary judgment cross motion while affirming denial of the provider's motion. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the record supported the insurer's founded belief that the assignor's alleged injuries did not arise from an insured incident. The insurer nevertheless failed to submit sufficient admissible evidence establishing lack of coverage as a matter of law. Neither party was entitled to summary judgment. The court did not review the provider's prima facie showing because the insurer had raised no issue concerning it below.
Appellate Term, Second Department
Nov 19, 2009
2009 NY Slip Op 52374(U)
Insurer prevailed
The provider's appeal was dismissed because the entered judgment awarded the full balance requested, leaving it unaggrieved. The Appellate Term, Second Department, applied CPLR 5511 and Lowery v Lamaute. After a nonjury trial concerning six claims, including the acupuncture reimbursement rate, the Civil Court's decision directed an award of $322.30. The entered judgment nevertheless awarded $1,718.40, the full requested balance. Because the provider received all the relief sought in the judgment, it could not maintain the appeal.
Appellate Term, Second Department
Nov 17, 2009
2009 NY Slip Op 29467
Insurer prevailed
An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist. The insurer partially paid the provider's claim and timely denied the balance as exceeding the applicable maximum fees. At trial, the provider's witness held both acupuncture and chiropractic licenses. Under Education Law §§ 8212, 8214 and 8216 and 8 NYCRR 52.16 (b), acupuncture licensure training remains the same even when the applicant is licensed in another profession. Because reimbursement under the workers' compensation schedule for acupuncture performed by chiropractors was undisputed, no additional payment was due. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint in the insurer's favor.
Appellate Term, Second Department
Nov 13, 2009
2009 NY Slip Op 52321(U)
Insurer prevailed
The insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing. In the provider's action for assigned no-fault benefits, the insurer supported its summary judgment motion with proof of its standard mailing practices and an IME report accompanied by the examiner's affidavit. The report supplied a factual basis and medical rationale for finding the services unnecessary. The provider's chiropractor did not meaningfully address the insurer's chiropractor's conclusion. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the underlying order, granted the insurer's motion dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Nov 5, 2009
2009 NY Slip Op 52273(U)
Insurer prevailed
The insurer's timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity. In the provider's action for assigned no-fault benefits, the insurer supported its summary judgment motion with a claims representative's affidavit describing standard procedures for properly addressing and mailing denials. An affirmed physician's peer review report and an affidavit from the chiropractor who performed a second peer review supplied factual bases and medical rationales for finding the equipment unnecessary. The provider submitted no evidence rebutting that showing, and its objections to the insurer's papers lacked merit. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 5, 2009
2009 NY Slip Op 52278(U)
Provider prevailed
A provider's summary judgment motion should be held in abeyance pending a Workers' Compensation Board determination of the assignor's eligibility. The insurer opposed the motion based on a timely denial asserting eligibility for workers' compensation benefits. The Appellate Term, Second Department, recognized the Board's authority to determine entitlement under the Workers' Compensation Law, but reversed the dismissal, reinstated the complaint, and remitted the motion to be held in abeyance pending a prompt application to the Board. The provider must file proof of that application within 90 days of the appellate order; otherwise, absent good cause, the District Court must deny the provider's motion and grant the insurer summary judgment dismissing the complaint.
Trial court, Second Department
Nov 25, 2009
2009 NY Slip Op 52385(U)
Provider prevailed
The insurer's common-ownership allegations did not justify joining all provider defendants, and its requested injunction lacked evidentiary support. The Supreme Court, Kings County, ordered severance under CPLR 603 and denied the insurer's motions to dismiss defenses and counterclaims and stay pending collection proceedings, with leave to renew. Common physician ownership alone did not establish fraudulent incorporation under Mallela and 11 NYCRR 65-3.16 (a) (12). An amended complaint could retain the physician and three providers if allegations supported joinder under CPLR 1002 (a); claims concerning services not rendered, verification, or EUO nonappearance could encompass no more than five insureds per action. The requested stay required preliminary-injunction proof, which was absent; the court left open the pleading's sufficiency to allege fraudulent incorporation.
Trial court, Second Department
Nov 5, 2009
2009 NY Slip Op 52355(U)
Insurer prevailed
The provider could not challenge the reliability of referring-physician records it relied on to perform the MRI. The Civil Court, Richmond County, rendered judgment for the insurer after a trial on medical necessity. The provider objected that the reviewing neurosurgeon's opinion relied on records not in evidence. Because the provider performed the MRI on the treating physician's referral and returned the results, it could not dispute those records' reliability and authenticity. The expert also established professional acceptance and reliability under Wagman v Bradshaw and Hambsch v N.Y.C. Transit Auth. The expert found no clinical basis justifying the lumbar MRI, and the provider offered no rebuttal evidence. The court left admissibility of the other reviewed doctors' reports undecided.
