Appellate Division, Second Department
Jan 26, 2010
2010 NY Slip Op 00668
Insurer prevailed
An insurer's failure to pay or deny a no-fault claim within 30 days does not preclude a defense that the accident was not an insured incident. The insurer established prima facie entitlement to summary judgment on that ground, and the provider failed to raise a triable factual issue. Following Central Gen. Hosp. v Chubb Group of Ins. Cos., the Appellate Division, Second Department, rejected the provider's preclusion argument. It reversed the order and judgment awarding benefits to the provider, denied the provider's summary judgment motion, granted the insurer's cross motion and dismissed the complaint.
Appellate Division, Second Department
Jan 5, 2010
2010 NY Slip Op 00138
Provider prevailed
The insurer failed to justify vacating its default because its affidavit established neither a reasonable excuse nor a meritorious defense. The provider obtained a default judgment after service through the Insurance Department under Insurance Law § 1212. The insurer's claims examiner reported no computer record of the summons, complaint or bill but showed no knowledge of the receiving office's handling procedures. That proof did not establish clerical error or rebut receipt of the billing forms. The insurer's records also showed sufficient policy funds when the bill was received, implicating 11 NYCRR 65-3.15. Applying CPLR 5015 (a) (1), the Appellate Division, Second Department, reversed the order, insofar as appealed from, denied vacatur and remitted for determination of the provider's contempt motion on the merits.
Appellate Term, Second Department
Jan 29, 2010
2010 NY Slip Op 50148(U)
Split result
The insurer established a policy deductible but failed to support its duplicative-billing defense to a separate bill. The Appellate Term, Second Department, reversed the provider's judgment, awarded the provider summary judgment on the separate bill, and searched the record to grant the insurer summary judgment dismissing the claims subject to the $200 deductible. The billing manager's affidavit satisfied CPLR 4518 and established personal mailing; the insurer conceded receipt. The insurer proved the deductible under 11 NYCRR 65-1.6 and timely denied the affected claims under Insurance Law § 5102 (b) (3). Counsel lacked personal knowledge supporting the remaining defense. The matter was remitted for statutory interest and attorney's fees on the provider's award under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jan 29, 2010
2010 NY Slip Op 50146(U)
Insurer prevailed
The provider failed to establish its prima facie case because its owner's affidavit was unsigned and counsel's affirmation was insufficient. The provider moved for summary judgment to recover assigned no-fault benefits, submitting counsel's affirmation, the unsigned affidavit, and supporting documents. The insurer challenged the affidavit's sufficiency. The Appellate Term, Second Department, affirmed the denial of the provider's motion because the unsigned affidavit was not evidence in admissible form and counsel's affirmation could not establish the required prima facie showing.
Appellate Term, Second Department
Jan 29, 2010
2010 NY Slip Op 50149(U)
Split result
Unanswered verification requests left three claims premature; the insurer's unsupported unbundling defense failed on two others. The provider's billing affidavit established admissibility under CPLR 4518, and the insurer conceded receipt. Following Infinity Health Prods., Ltd. v Eveready Ins. Co., unanswered timely initial requests and follow-ups mailed on the 30th day before the full response period expired kept the payment-or-denial period from running. The Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment on causes two through four and granted the insurer dismissal of those premature claims. The provider retained summary judgment on causes one and five because the insurer supplied no affidavit from someone sufficiently expert to establish that the services were improperly unbundled from the initial medical evaluation.
Appellate Term, Second Department
Jan 29, 2010
2010 NY Slip Op 50151(U)
Provider prevailed
The provider's summary judgment award was upheld because the insurer did not establish the assignor's failure to appear for IMEs. The Appellate Term, Second Department, affirmed the judgment in the action for assigned no-fault benefits. The insurer's opposing affidavits were insufficient to prove nonappearance under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., leaving no triable issue of fact.
Appellate Term, Second Department
Jan 29, 2010
2010 NY Slip Op 50153(U)
Insurer prevailed
The insurer's affidavits established timely mailing of its medical-necessity denial through its standard office practice and procedure. The provider moved for summary judgment on assigned no-fault benefits, and the insurer cross-moved to dismiss for lack of medical necessity. The provider challenged the sufficiency of the insurer's mailing proof in opposition. The Appellate Term, Second Department, rejected that challenge and affirmed the order, insofar as appealed from, granting the insurer's cross motion for summary judgment dismissing the complaint. The provider's remaining contentions were improperly raised for the first time on appeal.
Appellate Term, Second Department
Jan 28, 2010
2010 NY Slip Op 50144(U)
Insurer prevailed
The providers' treating doctor's affirmation failed to rebut the insurer's peer review and IME evidence of lack of medical necessity. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers' motion for partial summary judgment and granting the insurer's cross motion dismissing the challenged claims. The peer review report and IME submissions supplied a factual basis and medical rationale for finding the services unnecessary. The treating doctor's affirmation apparently lacked at least one page, and the portion in the record did not meaningfully address the insurer's medical determinations. The providers had sought a prima facie determination under CPLR 3212 (e) or (g); the appellate court reached no other issue.
Appellate Term, Second Department
Jan 28, 2010
2010 NY Slip Op 50143(U)
Insurer prevailed
The providers' motion for partial summary judgment was denied, and that denial was affirmed. The Appellate Term, Second Department, relied on the reasons stated in the companion appeal decided the same day, No. 2009-943 N C, B.Y., M.D., P.C., JR Chiropractic, P.C., Oasis Physical Therapy, P.C., and Olga Bard Acupuncture, P.C. v Government Empls. Ins. Co. The insurer's cross motion remained in abeyance.
Appellate Term, Second Department
Jan 28, 2010
2010 NY Slip Op 20026
Insurer prevailed
A provider cannot obtain partial summary judgment merely establishing its prima facie case without disposing of any part of a cause of action. The providers sought a determination concerning their first cause of action under CPLR 3212 (e) or, alternatively, CPLR 3212 (g). The insurer opposed the motion, asserting lack of medical necessity among other grounds. The Appellate Term, Second Department, affirmed denial of the providers' motion. Relief under CPLR 3212 (e) was unavailable because the requested determination would not conclusively resolve the merits of the cause of action or any part of it. CPLR 3212 (g) likewise did not apply because the motion did not seek summary judgment conclusively disposing of the merits, leaving no predicate for limiting factual issues for trial.
Appellate Term, Second Department
Jan 22, 2010
2010 NY Slip Op 50610(U)
The insurer's appeal was stricken from the general calendar because a preliminary injunction barred further proceedings in the action. While the parties' summary judgment motions were pending, the Supreme Court, Queens County, issued the injunction in the insurer's declaratory judgment action against, among others, the provider and assignor. It stayed pending and future Civil Court and District Court actions involving them. The Civil Court subsequently granted the provider's motion and denied the insurer's cross motion. The Appellate Term, Second Department, concluded that the injunction foreclosed further proceedings, so the appeal could not properly be perfected.
Appellate Term, First Department
Jan 14, 2010
2010 NY Slip Op 50043(U)
Insurer prevailed
An out-of-state affidavit lacking the required certificate of conformity may receive nunc pro tunc effect once the certificate is obtained. The Appellate Term, First Department, conditionally reversed and granted the insurer summary judgment dismissing the no-fault complaint. The insurer's employee affidavit established entitlement to dismissal, but the providers timely objected that it lacked certification of a New Jersey oath under CPLR 2309 (c) and Real Property Law § 299-a (1). The insurer was required to file and serve an affidavit with the appropriate certificate within 60 days after service of the appellate order with notice of entry. If the insurer failed to comply, the order denying its motion would be affirmed.
Appellate Term, First Department
Jan 14, 2010
2010 NY Slip Op 50048(U)
Insurer prevailed
The provider's unexplained staffing problem did not raise a triable issue of reasonable justification for submitting late proof of claim. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the complaint. The insurer established that proof of the no-fault claim was untimely under 11 NYCRR 65-1.1 and 65-2.4. In response, the provider attributed the delay to an unidentified claims employee's absence because of a family emergency. That bare, unelaborated assertion was insufficient, under the circumstances, to raise a factual issue concerning reasonable justification under 11 NYCRR 65-3.3 (e).
Appellate Term, Second Department
Jan 12, 2010
2010 NY Slip Op 50065(U)
Insurer prevailed
The provider failed to establish admissible business records through its third-party billing company's employee. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portion of the order granting its cross motion for summary judgment, and denied that cross motion. The employee's affidavit did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to make the annexed documents admissible under CPLR 4518. The provider therefore failed to establish prima facie entitlement to summary judgment for assigned no-fault benefits; the appellate court reached no other issue.
Appellate Term, Second Department
Jan 12, 2010
2010 NY Slip Op 50068(U)
Insurer prevailed
An insurer may use the chiropractic acupuncture fee schedule to reimburse services rendered by a licensed acupuncturist. Following Great Wall Acupuncture, P.C. v GEICO Ins. Co., the Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order, denied the provider's motion, and searched the record to dismiss the complaint for the insurer. Full payment at the applicable workers' compensation fee schedule rate was undisputed. The provider's billing manager established admissible business records under CPLR 4518, but the insurer's claims employee established timely mailing of denials through office practices ensuring proper addressing and mailing, contrary to the Civil Court's determination.
Appellate Term, Second Department
Jan 12, 2010
2010 NY Slip Op 50066(U)
Insurer prevailed
The insurer raised triable issues on medical necessity for the second cause of action and excessive fees for the third. The Appellate Term, Second Department, reversed the provider's judgment, vacated the portions of the order granting summary judgment on those causes, denied those branches of the provider's motion, and remitted for further proceedings. The provider's billing manager established that the claim documents were admissible under CPLR 4518. Contrary to the Civil Court's finding, the insurer's claims representative established timely mailing of denials asserting both defenses. An affirmed peer review supplied a factual basis and medical rationale questioning the necessity of the supplies on the second cause, and the insurer separately raised a factual issue concerning fees on the third.
Appellate Term, Second Department
Jan 12, 2010
2010 NY Slip Op 50067(U)
Insurer prevailed
The provider's action was premature because it did not show that it supplied timely requested verification before commencing suit. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint without prejudice to a new action. The provider's billing manager supplied a sufficient business-record foundation under CPLR 4518. Contrary to the Civil Court's finding, the insurer's claim representative established timely mailing of the initial and follow-up verification requests. Because the provider did not demonstrate a response before suit, the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a) (1).
Appellate Term, Second Department
Jan 12, 2010
2010 NY Slip Op 50070(U)
Split result
The insurer proved lack of medical necessity for two claims but failed to establish IME nonappearance or excessive fees for the others. The Appellate Term, Second Department, affirmed the provider's judgment on the fourth through tenth causes of action and modified the order, insofar as appealed from, to dismiss the second and third causes on the insurer's cross motion. The provider's affidavit established personal mailing and admissible claim forms under CPLR 4518. The insurer failed to prove IME nonappearance on the fourth through tenth causes. Its unrebutted peer review supplied a factual basis and medical rationale for dismissing the second and third causes. Denial of the insurer's cross motion on the first cause remained intact because it failed to establish excessive fees.
Appellate Term, First Department
Jan 11, 2010
2010 NY Slip Op 50020(U)
Provider prevailed
The insurer waived any objection to the provider's failure to file proof of service by never raising it in the action. The Appellate Term, First Department, reversed dismissal after a nonjury trial, reinstated the complaint, and directed judgment for the provider. Under the former commencement-by-service system governed by former CCA 409, failure to file an affidavit of service was also an irregularity correctable nunc pro tunc under former CCA 411. On the merits, the provider established its prima facie case, and the insurer introduced no evidence supporting its sole trial defense of lack of medical necessity. The appellate court left statutory interest and attorney's fees unresolved, without prejudice to renewal in Civil Court.
Trial court, Second Department
Jan 28, 2010
2010 NY Slip Op 20030
The insurer's affidavits did not support CPLR 3211 dismissal; the court gave notice that it would treat the motion as summary judgment. The insurer sought pre-answer dismissal based on suspected provider ineligibility, unanswered verification requests, and the principal's EUO nonappearances. The District Court, Nassau County, found the submissions insufficient as conclusive documentary evidence under CPLR 3211 (a) (1). The complaint stated a benefits claim, and the extrinsic evidence did not conclusively defeat it under CPLR 3211 (a) (7). Because the provider was not required to refute the insurer's factual assertions without conversion notice, the court invoked CPLR 3211 (c) and directed the parties to appear to establish a supplemental motion schedule.
Trial court, Second Department
Jan 27, 2010
2010 NY Slip Op 50202(U)
Provider prevailed
The insurer failed to disprove the medical necessity of MRIs when performed, despite showing that they had been recommended prematurely. The District Court, Nassau County, found for the provider after trial. The diagnostic plan recommended spinal and shoulder MRIs one day after the accident, but the tests occurred several weeks later. The limited records did not disclose the claimant's condition or response to prescribed conservative treatment during that interval. Applying the insurer's burden and the presumption of medical necessity under Nir v Allstate Ins. Co., the court rejected an adverse inference against the provider for not producing complete records. Proof that the initial recommendation lacked justification did not establish that the later tests were unnecessary when conducted.
Trial court, Second Department
Jan 22, 2010
2010 NY Slip Op 50089(U)
Provider prevailed
An insurer's pending investigation of alleged provider fraud does not excuse an untimely denial of a no-fault claim. The Civil Court, Kings County, granted the provider summary judgment with statutory interest and attorney's fees. The provider established assignment, submission, and nonpayment; the insurer's denial form showed denial beyond the 30-day period under Insurance Law § 5106 (a). No verification request was shown to toll that period. The investigator's report was unsworn and inadmissible under CPLR 3212 and found no evidence that the accident was caused or staged. Following Fair Price Medical Supply Corp. v Travelers Indemnity Co., the alleged billing for services not rendered was provider fraud subject to timely denial, even if supported by admissible evidence.
Trial court, Second Department
Jan 6, 2010
2010 NY Slip Op 50053(U)
Provider prevailed
A neurologist assessing the necessity of chiropractor-ordered MRIs must be shown familiar with generally accepted chiropractic practices. The District Court, Nassau County, awarded the provider judgment after trial, with no-fault interest and attorney's fees. The parties stipulated to the provider's prima facie case and timely denial, leaving medical necessity contested. The insurer relied on neurologists' peer review reports and testimony that cervical and lumbar MRIs were unnecessary. Under Taormina v Goodman, medical standards do not control chiropractic practice, and an expert testifying outside the expert's field requires a foundation of familiarity with the applicable practice. The insurer established no such familiarity for either neurologist, so their evidence failed to rebut the presumption of medical necessity.
Trial court, Second Department
Jan 6, 2010
2010 NY Slip Op 50094(U)
Provider prevailed
A provider need not prove submission within the 45-day claim period as part of its prima facie case. The Civil Court, Richmond County, denied the insurer's motion for a directed verdict and dismissal in two consolidated no-fault actions. The insurer conceded adequate proof of bill generation and mailing but argued that the provider failed to establish timely submission under 11 NYCRR 65-1.1 (b). The court required the insurer to establish untimeliness through timely denials showing receipt dates. Although the insurer asserted those dates in its brief, it introduced no denials into evidence. Under Insurance Law § 5106 (a), untimely submission is precluded absent a timely denial. A further trial was ordered to permit the insurer to present its defense.
Trial court, Second Department
Jan 6, 2010
2010 NY Slip Op 50010(U)
Insurer prevailed
The insurer retained its verification toll despite sending an IME follow-up request 17 days after the first request. The Civil Court, Kings County, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint without prejudice to a new action. The insurer proved mailing of both scheduling letters and the assignor's nonappearances. Applying Infinity Health Products, Ltd. v Eveready Ins. Co., the court rejected strict adherence to the 30-day waiting period in 11 NYCRR 65-3.6 (b): the rescheduling letter followed the first missed IME by one day, and 30 days had elapsed by the second nonappearance. The unanswered requests tolled the period to pay or deny under Insurance Law § 5106 (a), making suit premature.
