Appellate Term, Second Department
Dec 30, 2009
2009 NY Slip Op 52693(U)
Insurer prevailed
The assignor's sworn no-fault application raised a factual question about employment that the Workers' Compensation Board had to resolve first. The provider challenged a stay entered on the insurer's motion for summary judgment, arguing that the insurer had not shown an employment issue. The application stated that the assignor was injured in the course of employment. The Appellate Term, Second Department, found that admission sufficient to warrant referral under the Workers' Compensation Law. It modified the order to require the provider to file proof of a Board application with Civil Court within 90 days of the appellate order. Otherwise, the insurer's summary judgment motion would be granted unless the provider showed good cause against dismissal. The stay was otherwise affirmed.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52630(U)
Insurer prevailed
The provider's action was premature despite a follow-up verification request mailed on the 29th day after the initial request. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. Timely mailing of the initial verification request was undisputed, and the provider did not supply the information requested in either request. Following Infinity Health Prods., Ltd. v Eveready Ins. Co., the court concluded that the insurer's 30-day period to pay or deny had not begun, even though the follow-up preceded expiration of the full response period. The court reached no other issue.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52632(U)
Insurer prevailed
The insurer's timely denial and affirmed IME reports raised a triable issue of medical necessity. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of summary judgment, denied the provider's motion, and remitted for further proceedings. The billing manager's affidavit sufficiently established that the provider's supporting documents were admissible business records under CPLR 4518. Contrary to the Civil Court's finding, the insurer's claims representative established timely mailing of a denial asserting lack of medical necessity among other grounds. The affirmed reports supplied a factual basis and medical rationale for the conclusion that the services were unnecessary. The appeal concerned only the grant of the provider's motion, leaving the denial of the insurer's cross motion outside its scope.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52633(U)
Insurer prevailed
The insurer's timely denial and supported peer review raised a triable issue as to the medical necessity of the supplied equipment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. The insurer conceded receipt of the claim, and the billing manager's affidavit established admissibility of the provider's documents under CPLR 4518. The insurer nevertheless proved timely mailing of its verification request and denial through an employee's knowledge of standard office mailing procedures. Its affirmed peer review supplied a factual basis and medical rationale for finding the equipment unnecessary. The court declined the insurer's request to search the record and grant it summary judgment.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52634(U)
Insurer prevailed
A provider may not correct a claim form identifying a different claimant once litigation has commenced. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion to dismiss the claim at issue. The professional corporation held the assignment, but the submitted form sought payment on behalf of the treating physician. A handwritten parenthetical reference to the practice did not name the plaintiff corporation. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the provider's belated attempt to show that the physician was its employee or principal could not cure the form. The provider had not submitted a claim form entitling it to payment.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52635(U)
Insurer prevailed
The insurer's proof of timely denials and supported peer reviews raised a triable issue of medical necessity. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of summary judgment, denied the provider's motion, and remitted for further proceedings. The billing manager's affidavit established that the provider's supporting documents were admissible business records under CPLR 4518. Contrary to the Civil Court's finding, however, the claims representative's affidavit sufficiently established timely mailing of the denials. The affirmed peer review reports supplied a factual basis and medical rationale for finding the services unnecessary. The insurer limited its appeal to the grant of the provider's motion; the denial of its own cross motion was not reviewed.
Appellate Term, Second Department
Dec 23, 2009
2009 NY Slip Op 52636(U)
Provider prevailed
The provider obtained reversal of a sua sponte stay entered without deciding its summary judgment motion. The Appellate Term, Second Department, granted leave under UDCA 1702 and struck the stay for the reasons stated in A.B. Med. Servs., PLLC v Travelers Ins. Co. The matter was remitted to determine the provider's motion; the insurer's summary judgment cross motion also remained undecided on the merits.
Appellate Term, First Department
Dec 18, 2009
2009 NY Slip Op 52577(U)
Provider prevailed
An arbitration award requiring a provider to establish medical necessity is contrary to settled law. The Appellate Term, First Department, affirmed the order vacating the award and granting the provider unpaid no-fault benefits. The arbitrator had placed the medical necessity burden on the provider, and the master arbitrator sustained that conclusion. Applying Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., the court found the award unsupported by a reasonable hypothesis and contrary to settled law. Mary Immaculate Hosp. v Allstate Ins. Co. and Metro. Radiological Imaging, P.C. v Country-Wide Ins. Co. supported rejection of that burden. The insurer's remaining contentions were without merit.
Appellate Term, Second Department
Dec 15, 2009
2009 NY Slip Op 52601(U)
Insurer prevailed
The insured's affidavit denying any pedestrian collision established that the assignor's injuries did not arise out of an insured incident. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the provider's complaint. The Civil Court had found a factual issue as to whether the alleged accident occurred. On appeal, the insurer's prima facie showing was the sole issue. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the insured's statement that no pedestrians had been struck was sufficient to shift the burden to the provider. The provider failed to raise a triable issue in opposition.
Appellate Term, Second Department
Dec 15, 2009
2009 NY Slip Op 52596(U)
Insurer prevailed
The provider failed to establish a prima facie case because its billing company's witness could not authenticate its business records. After a nonjury trial, Civil Court awarded the provider assigned no-fault benefits based on documents, including NF-3 forms, admitted over the insurer's objection. The Appellate Term, Second Department, reversed the judgment and dismissed the complaint. The billing manager lacked personal knowledge of the provider's business practices and procedures, and the relationship between the billing company and provider did not permit the witness to lay the foundation required by CPLR 4518. The documents therefore were not admissible as the provider's business records under the hearsay exception.
Appellate Term, Second Department
Dec 15, 2009
2009 NY Slip Op 52597(U)
Insurer prevailed
The provider's challenges to the insurer's affidavit and late-notice denial were waived because they were first raised on appeal. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion. The Civil Court had found untimely notice under 11 NYCRR 65-1.1 and no reasonable justification under 11 NYCRR 65-3.3 (e). The appellate objection under CPLR 2309 (c) was unpreserved. So was the argument that the denial omitted the required advice that reasonable justification could excuse late notice. That argument differed from the provider's contention below that the insurer had failed to demonstrate the absence of reasonable justification.
Appellate Term, Second Department
Dec 15, 2009
2009 NY Slip Op 52598(U)
Insurer prevailed
A second CPLR 3211 (a) motion does not violate the single-motion rule when the first motion was not decided on the merits. The Appellate Term, Second Department, affirmed dismissal of the provider's action. The insurer sought dismissal under the six-year statute of limitations, and the provider objected that this was the insurer's second pre-answer motion. Although CPLR 3211 (e) ordinarily permits only one such motion, the original motion here had not been decided on the merits. Following Curtis v Chetrit and Breiterman v Haidt, the court rejected the procedural objection. The provider's remaining contention was unpreserved for appellate review.
Appellate Term, Second Department
Dec 9, 2009
2009 NY Slip Op 29510
Provider prevailed
A professional service LLC's disqualified sole member may wind up its affairs by prosecuting an action for benefits in the company's name. Suspension of the sole member's medical license dissolved the provider under Limited Liability Company Law §§ 1209 and 701 (a) (4), but Limited Liability Company Law § 703 (b) permitted continued litigation during winding up. Articles of dissolution were not a prerequisite. The Appellate Term, Second Department, reversed the order, insofar as appealed from, struck the CPLR 2201 stay and denial without prejudice of summary judgment, and remitted for a merits determination. The discovery cross motion's merits also remained undecided. The appeal concerning reargument was dismissed as nonappealable, and the appeal concerning renewal was dismissed as moot.
Appellate Term, Second Department
Dec 9, 2009
2009 NY Slip Op 29509
Provider prevailed
An assignor's missed deposition does not warrant dismissal under CPLR 3126 (3) when the assignor is a nonparty outside the provider's control. The insurer sought dismissal after the assignor failed to appear, arguing that the assignment conferred party status or placed the assignor under the provider's control. The Appellate Term, Second Department, affirmed denial of the insurer's motion. Assignment divests eligible injured persons of their interest in the assigned benefits, and a provider's party status cannot be imputed to its assignor. Because the assignor was neither an officer, member, nor employee of the provider and was not otherwise under its control, disclosure sanctions against the provider were unwarranted.
Appellate Term, Second Department
Dec 9, 2009
2009 NY Slip Op 52513(U)
Split result
The insurer's denials of the acupuncture provider's claims adequately stated its position and contained the information the prescribed form requires. The Appellate Term, Second Department, modified the order, insofar as appealed from and reviewed, to strike the sua sponte stay of the medical provider's action and remit its summary judgment motion for determination. That relief followed A.B. Med. Servs., PLLC v Travelers Indem. Co., the companion appeal decided the same day, No. 2009-549 N C. The insurer's cross motion concerning that provider also remained undecided. Dismissal of the acupuncture provider's claims was affirmed because the denials satisfied 11 NYCRR 65-3.2 (e) and the prescribed form's requirements; its remaining contentions lacked merit. The chiropractic provider's appeal was dismissed as abandoned.
Appellate Term, Second Department
Dec 7, 2009
2009 NY Slip Op 52464(U)
Insurer prevailed
Severance of no-fault claims may rest solely on allegations in the answer without a showing of prejudice. The Appellate Term, Second Department, reversed the order and granted the insurer's motion under CPLR 603 to sever claims assigned by two individuals into separate actions. The claims allegedly arose from separate accidents, and the answer disputed the necessity and reasonableness of the particular services rendered to each assignor. The facts were therefore likely to present few, if any, common factual issues under Radiology Resource Network, P.C. v Fireman's Fund Ins. Co. Following Ladim DME, Inc. v GEICO Gen. Ins. Co., the insurer did not need to demonstrate prejudice to obtain severance.
Appellate Term, Second Department
Dec 7, 2009
2009 NY Slip Op 52466(U)
Split result
The insurer's unrebutted peer review established lack of medical necessity for the provider's third and fourth causes of action. The Appellate Term, Second Department, modified the order to deny the provider summary judgment on those causes and grant the insurer's cross motion dismissing them. The first and second causes remained resolved in the provider's favor for attorney's fees after the insurer paid those claims and accrued interest following commencement. The billing manager's affidavit satisfied CPLR 4518, and the insurer's challenge to proof of claim submission lacked merit. For the third and fourth causes, timely denials and an affirmed peer review supplied a factual basis and medical rationale that the provider failed to rebut.
Appellate Term, Second Department
Dec 1, 2009
2009 NY Slip Op 52445(U)
Provider prevailed
The insurer failed to prove timely denial because its representative began employment after the alleged mailing and supplied no other mailing proof. The Appellate Term, Second Department, affirmed summary judgment for the provider. The billing supervisor's affidavit established admissibility of the provider's documents under CPLR 4518. The insurer's representative began working for it after the denials allegedly were mailed, and the insurer otherwise established neither actual mailing nor the standard office mailing procedures used during the pertinent period. Without proof of timely denials, the insurer was precluded from asserting lack of medical necessity under Presbyterian Hosp. in City of NY v Maryland Cas. Co.
Appellate Term, Second Department
Dec 1, 2009
2009 NY Slip Op 52446(U)
Insurer prevailed
The insurer's unrebutted chiropractic peer review established lack of medical necessity for the provider's first cause of action. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing that cause. The Civil Court had found a factual issue concerning medical necessity. The insurer's affidavits established timely denial through standard office procedures ensuring proper addressing and mailing. Its chiropractor's affidavit and peer review report supplied a factual basis and medical rationale for finding the services unnecessary. Those assertions were unrebutted, and the provider failed to raise a triable issue of fact.
Appellate Term, Second Department
Dec 1, 2009
2009 NY Slip Op 52447(U)
Split result
The treating chiropractor's conclusory affidavit failed to rebut the insurer's peer review on the provider's fifth cause of action. The Appellate Term, Second Department, modified the order to grant the insurer's summary judgment cross motion dismissing that cause, while affirming denial of dismissal of the fourth cause. For the fifth cause, affidavits established timely mailing of the denial through standard office procedures, preserving the medical necessity defense. The reviewing chiropractor's affidavit and report established lack of medical necessity, while the treating chiropractor supplied no facts supporting the contrary conclusion. For the fourth cause, the insurer failed to establish a timely denial, so summary judgment dismissing that claim remained denied.
Appellate Term, Second Department
Dec 1, 2009
2009 NY Slip Op 52444(U)
Provider prevailed
The assignor's alleged misrepresentation about a daughter's presence in the car did not raise an issue about coverage for the assignor's injuries. The Appellate Term, Second Department, affirmed the provider's summary judgment. The provider president's affirmations satisfied CPLR 4518. The insurer characterized its defense as fraud and relied on a case addressing injuries that did not arise from an insured incident. Here, however, it alleged neither that no accident occurred nor that the accident was staged. Its dispute concerned whether the assignor's daughter was in the vehicle. That alleged misrepresentation was irrelevant to whether the assignor's injuries arose from an insured incident, and the insurer failed to raise a triable issue.
Trial court, Second Department
Dec 4, 2009
2009 NY Slip Op 52579(U)
Insurer prevailed
An insurer may deny a claim for a pre-claim IME nonappearance even when its denial also cites a post-claim IME nonappearance. The Civil Court, Richmond County, granted the insurer summary judgment after affidavits established mailing of the IME notices and denial and the assignor's nonappearances. Under 11 NYCRR 65-3.6 (b), the follow-up requirement applied only to post-claim verification; the insurer retained its right to deny for the pre-claim nonappearance within 30 days of receiving the claim. The court also rejected the provider's objection that a neurological IME was unreasonable for a psychological-treatment claim, reasoning that the insurer could demand a pertinent pre-claim specialty examination without anticipating which specialty would later treat the assignor.
