Appellate Division, Second Department
Feb 23, 2010
2010 NY Slip Op 01658
Provider prevailed
The insurer failed to establish grounds to vacate a master arbitration award that had evidentiary support and a rational basis. The insurer sought vacatur under CPLR 7511 (b) (1) (iii), asserting that the master arbitrator exceeded the scope of permissible authority by confirming an award of no-fault benefits. It also challenged both awards as arbitrary and capricious. The Appellate Division, Second Department, affirmed the denial of the petition. Mandatory arbitration awards are upheld when supported by evidence and not arbitrary and capricious, and a rational basis may be found from any apparent basis in the record.
Appellate Term, Second Department
Feb 19, 2010
2010 NY Slip Op 50265(U)
Insurer prevailed
The provider's unsupported assertion that a peer review report bore a stamped facsimile signature raised no factual issue. The insurer cross-moved for summary judgment on medical-necessity grounds in response to the provider's motion to compel a deposition. The provider objected that the report did not comply with CPLR 2106, and its sole appellate argument concerned the signature. Although a properly supported stamped-signature allegation generally presents a factual issue not resolvable from motion papers alone, the provider gave no basis for its belief. The peer reviewer also submitted a reply affidavit stating that the signature had been personally applied. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's cross motion and dismissing the complaint.
Appellate Term, Second Department
Feb 19, 2010
2010 NY Slip Op 20059
Provider prevailed
The insurer failed to justify discovery or preserve fraudulent-billing and EUO nonappearance defenses through proof of timely denials. The provider established its prima facie case with admissible claim forms under CPLR 4518. The Appellate Term, Second Department, reversed, granted the provider summary judgment, denied the insurer's discovery cross motion, and remitted for interest and attorney's fees under Insurance Law § 5106 (a). Discovery under CPLR 3212 (f) could not support a precluded fraudulent-billing defense. Although statutory ineligibility was not precluded under Mallela, the insurer supplied no factual basis or showing that discovery was needed given public licensing records. CPLR 3126 sanctions also could not be imposed for failure to produce an assignor who was neither a party nor under the provider's control.
Appellate Term, Second Department
Feb 19, 2010
2010 NY Slip Op 50262(U)
Insurer prevailed
A medical corporation solely owned by a physician uncertified in acupuncture cannot recover no-fault benefits for an employee's acupuncture services. After a nonjury trial on stipulated facts, the Civil Court awarded the provider judgment because a licensed acupuncturist employed by it rendered the services. The Appellate Term, Second Department, reversed and dismissed the complaint. Under 11 NYCRR 65-3.16 (a) (12), reimbursement depends on applicable licensing requirements. Education Law §§ 8212 and 8216 (3) and 8 NYCRR 60.9 require separate acupuncture certification for physicians. Business Corporation Law §§ 1503 (b) and 1507 and 11 NYCRR 65-3.12 (a) barred reimbursement despite the employee's license and the owner's later certification.
Appellate Term, Second Department
Feb 19, 2010
2010 NY Slip Op 50264(U)
Insurer prevailed
Attorney's fees are calculated on the aggregate of all bills for each insured, subject to an $850 maximum under LMK Psychological Servs. The provider obtained summary judgment on four unpaid claims involving one insured. After initially limiting fees to $850, the Civil Court granted renewal based on the Appellate Division's LMK decision and allowed $1,745.47 calculated per claim. The Court of Appeals subsequently reversed that decision, accepting the Superintendent of Insurance's interpretation of a claim as the total medical expenses in a cause of action for a single insured. The Appellate Term, Second Department, modified the judgment, insofar as appealed from, to reduce fees to $850, vacated the contrary ruling upon renewal and granted the insurer's motion to reduce the proposed judgment.
Appellate Term, Second Department
Feb 5, 2010
2010 NY Slip Op 20044
Provider prevailed
The insurer failed to establish a reasonable excuse and meritorious defense for vacating its default on the providers' summary judgment motion. The Appellate Term, Second Department, reversed the vacatur order, denied the insurer's motion, and reinstated the default judgment under CPLR 5015 (a) (1). No affidavit from a person with personal knowledge explained the default, and the insurer's delay after receiving notice rendered it intentional and inexcusable. Checks marked void did not establish payment, and the insurer did not establish timely denials preserving its overbilling defense under 11 NYCRR 65-3.5 (b). The majority left interest tolling under 11 NYCRR 65-3.9 (d) undecided as unraised; a dissent favored affirmance and challenged reinstatement without addressing interest.
Appellate Term, Second Department
Feb 5, 2010
2010 NY Slip Op 50219(U)
Provider prevailed
The provider was entitled to judgment because medical necessity was the sole agreed trial issue and the insurer's expert testimony was stricken. The trial judge's statements and the insurer's presentation of a witness rather than a CPLR 4401 motion established that agreement. The provider therefore was not required to introduce a claim form to establish its prima facie case. On the scant appellate record, the insurer failed to show that its expert's reliance on out-of-court documents avoided hearsay or qualified for an exception. The Appellate Term, Second Department, upheld the striking of the testimony, reversed dismissal after the nonjury trial and remitted for judgment for the provider, with statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Feb 5, 2010
2010 NY Slip Op 50223(U)
Insurer prevailed
The provider's petition to vacate the arbitrator's and master arbitrator's no-fault awards was denied, and the awards were confirmed. The Appellate Term, Second Department, affirmed the order in the CPLR 7511 proceeding. Applying the compulsory-arbitration standard of evidentiary support and freedom from arbitrary and capricious decision-making, the court found no basis to vacate either award.
Appellate Term, Second Department
Feb 5, 2010
2010 NY Slip Op 50224(U)
Insurer prevailed
The provider could not obtain a CPLR 3212 (g) finding establishing its prima facie case because its billing affidavit did not establish admissibility. The provider moved for summary judgment or, alternatively, to limit factual issues for trial. After summary judgment was denied, it obtained reargument concerning the unresolved alternative request. Upon reargument, the District Court denied that request. The billing manager's affidavit failed to establish that the documents annexed to the motion were admissible under CPLR 4518, leaving the provider without a prima facie showing of entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, declining to disturb the denial of relief under CPLR 3212 (g).
Appellate Term, First Department
Feb 2, 2010
2010 NY Slip Op 50120(U)
Insurer prevailed
The provider failed to offer a reasonable excuse for its three-year delay in moving to restore actions stricken from the trial calendar. The Appellate Term, First Department, reversed the order granting restoration and denied the provider's motion. Under Kaufman v Bauer, restoration more than one year after removal required meritorious claims, lack of prejudice, lack of intent to abandon, and a reasonable excuse for delay; all four requirements had to be met. Even assuming the other requirements were satisfied, the provider offered no excuse for prior counsel's 19-month delay and inadequately explained substituted counsel's additional 17-month delay.
Trial court, Second Department
Feb 25, 2010
2010 NY Slip Op 50338(U)
Provider prevailed
A defendant that consents to judgment for the plaintiff at mandatory arbitration cannot demand a trial de novo. The District Court, Nassau County, denied the insurer leave to file such a demand. Medical necessity was the only disputed issue, but the arbitrator refused documentary IME materials and required testimony, a ruling authorized by 22 NYCRR 28.8 (b) (4). The insurer declined an offered adjournment and consented to judgment. It supplied no evidence of fraud, mistake, collusion, or accident sufficient to vacate that stipulation. The right to a trial de novo under CPLR 3405 and 22 NYCRR 28.12 (a) did not permit circumvention of compulsory arbitration by consenting to judgment and then seeking a new trial.
Trial court, Second Department
Feb 17, 2010
2010 NY Slip Op 20047
Provider prevailed
A provider may establish its prima facie no-fault case at trial through an unanswered notice to admit without witness testimony. Neither party called witnesses, and the provider relied on a notice requesting admissions of receipt of the claim and assignment, denial and nonpayment. The insurer conceded that it had not responded but argued that the provider had failed to establish its case. The District Court, Suffolk County, applied CPLR 3123 and Insurance Law § 5106 (a), reasoning that formal judicial admissions eliminate the need to prove undisputed facts through witnesses. Faced with conflicting appellate decisions outside its jurisdictional chain, the court considered itself free to decide the issue. It entered judgment for the provider, with statutory interest and attorney fees, because the prima facie case was unrebutted.
Trial court, Second Department
Feb 5, 2010
2010 NY Slip Op 20082
Insurer prevailed
An insurer may prove that an injury was not ascertainable within one year of the accident through a claims examiner without medical expert testimony. The provider sought payment for shoulder surgery performed more than seven years after the accident. The insurer timely denied the claim and presented a claims examiner whose file review showed no shoulder-related claims within the first year. The Civil Court, Richmond County, applied Insurance Law § 5102 (a) (1) and 11 NYCRR 65-1.1 (d), which condition unlimited medical-expense coverage on ascertainability of further expenses within one year. The court distinguished medical causation from ascertainability and found the examiner's proof sufficient. Because the provider offered no rebuttal evidence, the court rendered judgment for the insurer and dismissed the action.
