Appellate Division, Second Department
Mar 23, 2010
2010 NY Slip Op 02552
Provider prevailed
The hospital's completed NF-5 submitted within 45 days after services satisfied the policy's written notice requirement. The hospital established entitlement to summary judgment by showing that the required billing forms were mailed to and received by the insurer and that payment was overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The insurer failed to raise a triable issue in opposition. Applying 11 NYCRR 65-1.1 and 11 NYCRR 65-3.3 (d), the Appellate Division, Second Department, rejected the insurer's notice defense. It affirmed the judgment for the hospital, sustaining summary judgment on that hospital's claims and denial of the insurer's cross motion to dismiss those claims.
Appellate Division, Second Department
Mar 23, 2010
2010 NY Slip Op 02554
The liability insurer's noncooperation disclaimer required a hearing because proof of an EUO nonappearance did not establish validity as a matter of law. The petitioning insurer sought to stay uninsured motorist arbitration and submitted a police report identifying coverage for the offending vehicle. Under Thrasher, the liability insurer had to prove diligent, reasonably calculated efforts to obtain cooperation and willful obstruction by its insured. Its disclaimer and EUO proof raised a factual issue, but the scheduling letters threatened denial of no-fault benefits despite no indication that the insured was injured or sought those benefits. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and remitted for a hearing and a new stay determination. It dismissed the separate appeal from denial of reargument.
Appellate Division, Second Department
Mar 2, 2010
2010 NY Slip Op 01757
The Workers' Compensation Board has primary jurisdiction to resolve disputed employment status bearing on entitlement to workers' compensation benefits. The claimant sought first-party no-fault benefits, asserting independent-contractor status, while the insurer claimed that the claimant was an employee of a car service dispatch base. The insurer moved under CPLR 3211 (a) (2) to dismiss for lack of subject-matter jurisdiction or, alternatively, for summary judgment. The Appellate Division, Second Department, reversed denial of the motion because the factual employment questions should first have been referred to the Board for determination under the Workers' Compensation Law. It remitted for a new determination of the motion following the claimant's prompt application to the Board, leaving entitlement to benefits unresolved.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50587(U)
Insurer prevailed
The provider's conclusory challenge to the peer reviewer's signature did not raise a factual issue defeating the insurer's summary judgment motion. The insurer sought dismissal for lack of medical necessity and submitted an affirmed physician's peer review report. The provider's sole opposition was that the physician had not personally signed it. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint. A properly supported allegation of a stamped signature generally presents an issue that cannot be resolved solely on motion papers, but the provider gave no basis for believing the signature was stamped or a facsimile. The court therefore found no factual issue and did not reach matters raised in the insurer's reply.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50583(U)
Insurer prevailed
The provider's appeal was dismissed because the incomplete record required treating the summary judgment order as entered on default. MVAIC had sought summary judgment on grounds including the assignor's failure to exhaust available insurance remedies. Although both parties acknowledged that opposition and reply papers had been submitted, neither appeared in the appellate record, and the order recited consideration only of the moving papers. The Appellate Term, Second Department, dismissed the appeal under CPLR 5511 because a defaulting party cannot appeal from an order entered on default.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50593(U)
The defendant's motion to vacate the reinstated default judgment in the insurer's no-fault subrogation action was granted and affirmed. The Appellate Term, Second Department, found no abuse of discretion in the determination that the defendant had established a reasonable excuse and a meritorious defense, and noted the public policy favoring resolution of cases on the merits.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50579(U)
Insurer prevailed
The provider's petition to vacate a master arbitration award failed because its attorney's purported affirmation lacked a perjury declaration. The Appellate Term, Second Department, reversed the order granting relief and denied the petition without prejudice to renewal upon proper papers. The provider sought vacatur under CPLR 7511 of a master arbitrator's award upholding denial of its assigned no-fault claim. Its sole supporting document was labeled an affirmation but merely stated that the attorney "states as follows." Because the attorney did not affirm the statements' truth under penalties of perjury as required by CPLR 2106, the document was insufficient as an affirmation, and the papers could not support relief.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50582(U)
Insurer prevailed
The provider failed to establish a business-record foundation through its outside billing company's employee and was denied summary judgment. The Appellate Term, Second Department, affirmed that denial because the affidavit did not establish personal knowledge of the provider's practices and procedures sufficient to admit the supporting documents. The court dismissed the appeal from the portion permitting the insurer to serve discovery requests while preserving the provider's objections. Under CPLR 5511 and CPLR 3122 (a), the provider was not aggrieved by that permission. The court did not address whether the insurer had established entitlement to compel depositions of specified persons, because the Civil Court had not granted that relief.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50584(U)
Provider prevailed
The insurer's law office failure excuse did not justify its default, and it could not renew motions on which it had defaulted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying vacatur and leave to renew. The insurer served opposition papers after the stipulated deadline, and the Civil Court declined to consider them, granting the provider's four summary judgment motions on default. CPLR 5015 (a) (1) required a reasonable excuse and meritorious defense. Although CPLR 2005 permitted acceptance of law office failure supported by sufficient evidence, the insurer's excuse was found disingenuous and insufficient. Its separate renewal request also failed because renewal was unavailable for motions on which it defaulted.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50585(U)
Insurer prevailed
The provider's psychologist's affirmation failed to rebut the insurer's peer review conclusions that the services lacked medical necessity. The Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint. The insurer established timely mailing of the denial and submitted its psychologist's sworn peer review report, which supplied a factual basis and medical rationale for finding the professional health services unnecessary. That evidence established prima facie entitlement to summary judgment under Pan Chiropractic, P.C. v Mercury Ins. Co. The provider's opposing affirmation did not meaningfully address the report's conclusions and therefore failed to raise a triable issue of fact.
Appellate Term, Second Department
Mar 31, 2010
2010 NY Slip Op 50586(U)
Insurer prevailed
The insurer's unrebutted affirmed peer review report established that the supplies were medically unnecessary and warranted dismissal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. The insurer established timely mailing of its denial and supplied a peer review report setting out a factual basis and medical rationale for its conclusion. The provider failed to rebut that showing. Although the appeal also challenged the Civil Court's determination that the provider's prima facie case was established for all purposes under CPLR 3212 (g), the appellate court passed on no other issue.
Appellate Term, Second Department
Mar 19, 2010
2010 NY Slip Op 50491(U)
Insurer prevailed
The provider failed to rebut the insurer's peer review report or show that discovery was needed to oppose partial summary judgment. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the second and third causes of action. Timely denials and an affirmed peer review report supplying a factual basis and medical rationale established the insurer's prima facie defense. The provider's doctor's affirmation did not meaningfully address the report's conclusions. Although the provider asserted that it lacked information and documents relied on by the reviewer, it failed under CPLR 3212 (f) to demonstrate that discovery was needed to establish a triable issue of fact.
Appellate Term, Second Department
Mar 19, 2010
2010 NY Slip Op 50488(U)
Split result
Unanswered verification requests kept eight claims premature despite a follow-up mailed before the full response period expired. Following Infinity Health Prods., Ltd. v Eveready Ins. Co., the Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment and granted the insurer dismissal of causes of action one through six, eight and nine. The provider's billing affidavit established mailing and admissibility under CPLR 4518. The insurer waived its objection to an assignment signed by a minor by failing timely to object or seek verification. The provider retained summary judgment on the seventh cause because the insurer offered no proof of its fee-schedule defense; the matter was remitted for judgment on that claim. The tenth cause was outside the appeal's scope.
Appellate Term, Second Department
Mar 19, 2010
2010 NY Slip Op 50493(U)
Split result
The insurer failed to show willful discovery noncompliance warranting dismissal, but the provider had to supply specified discovery. The Appellate Term, Second Department, modified the discovery order by replacing dismissal of one provider's claims with an order compelling specified responses within 60 days. Denial of that provider's protective-order motion was affirmed because it offered no reasonable excuse for delay. CPLR 3126 (3) required a sufficient showing of willfulness for dismissal, which the insurer had not made. Untimely objections under CPLR 3122 (a) and CPLR 3133 (a) left only privilege and palpable impropriety available. Discovery concerning precluded defenses was improper, but specified Mallela discovery remained permissible. The separate appeal from denial of the providers' summary judgment motion was dismissed as abandoned.
Appellate Term, Second Department
Mar 19, 2010
2010 NY Slip Op 50487(U)
Insurer prevailed
The insured's affidavit established that the assignor's alleged injuries did not arise from an insured incident. The provider sought no-fault benefits assigned by a pedestrian allegedly struck by the insured's car. Although labeled a CPLR 3211 (a) (7) motion, the insurer's motion sought to establish an affirmative lack-of-coverage defense, and the provider opposed it as a summary judgment motion. The Appellate Term, Second Department, upheld its treatment under CPLR 3212 and affirmed dismissal. Under Central Gen. Hosp. v Chubb Group of Ins. Cos., the affidavit established the defense prima facie, and the provider raised no triable issue. The court could not review separate orders from which no appeal had been taken.
Appellate Term, Second Department
Mar 19, 2010
2010 NY Slip Op 50489(U)
Insurer prevailed
The insurer's stamped follow-up verification request also supplied a copy of its initial request, defeating the provider's sole appellate argument. The provider sought assigned no-fault benefits, and the Civil Court denied its summary judgment motion and granted the insurer's cross motion because the action was premature for failure to provide verification. The claims examiner explained that the insurer stamped the original request with "second notice" and the follow-up date. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint. It rejected the challenge under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), without deciding whether the insurer was required to annex its verification requests to its motion papers.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50449(U)
Insurer prevailed
The provider failed to justify its late claim submission because it did not explain why it first billed another insurer. The insurer sought summary judgment because the claim was submitted more than 45 days after the supplies were provided. Its adjuster's detailed description of office mailing procedures established timely mailing of the denial. Contrary to the provider's waiver argument, the denial adequately advised that late submission would be excused upon reasonable justification, as required by 11 NYCRR 65-3.3 (e). Although the provider promptly billed this insurer after another carrier denied its initial claim, it gave no explanation for the initial submission elsewhere. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting dismissal.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50444(U)
Split result
Unanswered verification requests rendered seven claims premature, while separate-reimbursement denials raised factual issues on two others. The provider established its prima facie case through conceded receipt and records admissible under CPLR 4518. The insurer proved timely initial verification requests under 11 NYCRR 65-3.5 (b). Following Infinity Health Prods., Ltd. v Eveready Ins. Co., follow-ups mailed on the 30th day, before the full response period expired, did not defeat tolling. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion and granted the insurer dismissal of causes one, two, three, five, six, eight and nine. Causes four and seven were remitted for further proceedings because timely denials asserted that the billed services were part of another service and not separately reimbursable.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50446(U)
Provider prevailed
EUO scheduling letters mailed 52 days after receipt of the bills were untimely and did not toll the insurer's time to pay or deny. The insurer opposed the provider's summary judgment motion and sought dismissal of the first cause of action based on the provider's failure to appear for an EUO. Although an EUO need not be held within 30 days of receipt of a claim, the insurer failed to establish timely mailing of its scheduling letters under 11 NYCRR 65-3.5 (b), 65-3.6 (b) and 65-3.8 (j). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the provider summary judgment on the first cause of action and denying the insurer's cross motion as to that claim.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 20094
Provider prevailed
The insurer's summary judgment motion failed because New Jersey law governed and factual disputes remained over coverage. The providers sought assigned no-fault benefits after an accident in New York involving a vehicle registered in New Jersey. The insurer sought dismissal on priority-of-payment grounds under Insurance Law § 5105 and for failure to state a cause of action. Applying the grouping-of-contacts approach, the Appellate Term, Second Department, found that New Jersey law controlled because the vehicle's registration, the insureds' residences and the apparent places of contracting were in New Jersey. The record did not establish whether the assignor was a resident relative of a New Jersey insured or which insurer owed payment. The court reversed the order, insofar as appealed from, and denied the insurer's cross motion.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50443(U)
Insurer prevailed
A joint trial under CPLR 602 (a) should be granted for common issues absent demonstrated prejudice to a substantial right. The insurer sought a joint trial of three providers' actions for assigned no-fault benefits arising from the same services at the same location and intended to assert lack of medical necessity in each. The Appellate Term, Second Department, reversed the denial of the insurer's motion and directed a joint trial in Queens County. Common issues made a joint trial consistent with judicial economy and the interests of justice, and the opposing papers did not establish prejudice. Venue belonged in Queens County because the first action was commenced there.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50445(U)
Insurer prevailed
The insurer raised triable issues concerning an MRI's medical necessity and whether it had already paid the provider's other claim. The provider established its prima facie case through the insurer's concession of receipt and a billing-manager affidavit establishing admissibility under CPLR 4518. The insurer proved timely mailing of its medical-necessity denial and submitted an affirmed peer review report containing a factual basis and medical rationale for finding the MRI unnecessary. It also presented sufficient evidence to raise a factual question about payment of the other claim. The Appellate Term, Second Department, reversed the provider's judgment, vacated the summary judgment order and denied the provider's motion. It declined to search the record and grant the insurer summary judgment.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50447(U)
Insurer prevailed
The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer timely denied the claim underlying the second cause of action and supported its cross motion with an affirmed peer review report supplying a factual basis and medical rationale for finding the supplies unnecessary. The Civil Court denied both sides' motions and identified medical necessity as the sole trial issue. The provider's opposing affirmation did not raise a triable factual issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the second cause of action.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50450(U)
Insurer prevailed
The insurer established lack of actual notice in time to defend and a meritorious policy-cancellation defense, warranting vacatur under CPLR 317. The provider served the Superintendent of Insurance under Insurance Law § 1212. The insurer's litigation examiner, with personal knowledge of mail-handling and claim-file procedures, stated that the insurer never received the summons, complaint or default motion. This evidence exceeded a mere denial of receipt. The examiner also stated that the assignor had canceled the policy before the accident and had not obtained another policy with the insurer. The Appellate Term, Second Department, reversed the order denying vacatur and granted the insurer's motion, finding that the Civil Court had improvidently exercised its discretion.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50452(U)
Provider prevailed
The provider's treating chiropractor's affidavit raised a triable issue of fact concerning the medical necessity of the services. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits on lack-of-medical-necessity grounds. Its chiropractor's affidavit and peer review report supplied a factual basis and medical rationale for concluding that the services were unnecessary. The treating chiropractor's opposing affidavit nevertheless sufficed to create a factual dispute. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving in place the denial of the branch of the insurer's motion seeking summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50453(U)
Insurer prevailed
The insurer's sworn peer reviews established lack of medical necessity for the supplies, and the provider offered no rebuttal. In the provider's action for assigned no-fault benefits, the Civil Court denied both sides' summary judgment motions and limited trial to medical necessity. The insurer established timely mailing of its denials and submitted two sworn peer review reports setting out a factual basis and medical rationale for finding the supplies unnecessary. That unrebutted showing established the insurer's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 10, 2010
2010 NY Slip Op 50454(U)
Insurer prevailed
The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary. The provider moved for summary judgment on assigned no-fault claims, and the insurer cross-moved to dismiss. The insurer submitted the examining doctor's affirmation and IME report, which established lack of medical necessity prima facie. Its affidavit also established timely mailing of the denials through a standard office practice or procedure. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the third and fifth causes of action. The appeal was limited to those claims.
Appellate Term, Second Department
Mar 8, 2010
2010 NY Slip Op 50380(U)
Insurer prevailed
The provider's supervising acupuncturist failed to meaningfully address or rebut the insurer's IME conclusions on medical necessity. The insurer sought summary judgment dismissing assigned no-fault claims and supported its motion with the examining chiropractor/acupuncturist's affidavit and an affirmed IME report. Those submissions established lack of medical necessity prima facie for the two claims at issue on appeal. The provider's opposing affirmation did not raise a triable issue, despite the Civil Court's finding that medical necessity remained for trial. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing those two claims.
Appellate Term, Second Department
Mar 8, 2010
2010 NY Slip Op 50372(U)
Insurer prevailed
The provider failed to justify submitting its claim to MVAIC more than 45 days after learning that the initial insurer disclaimed coverage. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint. The provider undisputedly missed the 45-day claim-submission requirement under 11 NYCRR 65-1.1, and MVAIC's denial advised that the delay could be excused upon reasonable justification under 11 NYCRR 65-3.3 (e). Although the provider initially sent the claim to an insurer that disclaimed coverage, it did not explain why its counsel then waited more than 45 days after learning of the disclaimer to submit the claim to MVAIC. That unexplained interval defeated its asserted justification.
Appellate Term, Second Department
Mar 8, 2010
2010 NY Slip Op 50374(U)
Insurer prevailed
The provider's willful and contumacious failure to obey an order compelling depositions warranted striking its complaint under CPLR 3126. The order required depositions of the provider's owner and a physician who allegedly treated the assignor within 60 days; if that physician was no longer under its control, an affidavit was required. The provider produced neither witnesses nor the affidavit and offered no reasonable excuse, despite three motions seeking depositions. The disclosure was proper under CPLR 3101 (a) (1). A pending appeal did not excuse compliance because the provider had not sought a stay. The Appellate Term, Second Department, affirmed the dismissal judgment and dismissed the separate appeal from the discovery order, reviewing its issues on the judgment appeal under CPLR 5501 (a) (1).
Appellate Term, Second Department
Mar 8, 2010
2010 NY Slip Op 50384(U)
Insurer prevailed
The provider's medical director's affirmation was improper under CPLR 2106 because the doctor was a principal of the corporate party. The insurer supported its summary judgment motion with a claims representative's affidavit and an affirmed IME report, establishing a proper and timely medical-necessity denial prima facie. The provider opposed with an affirmation from its owner and medical director, and the insurer objected in reply. The Civil Court should not have considered the facts in that affirmation. Because the provider offered no admissible evidence raising a factual issue, the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 8, 2010
2010 NY Slip Op 50385(U)
Provider prevailed
The provider's doctor's affirmation raised a triable issue concerning the medical necessity of equipment billed in the second cause of action. The insurer established timely mailing of its denial and submitted its chiropractor's affidavit and peer review report. Those submissions supplied a factual basis and medical rationale for finding the equipment unnecessary, establishing the insurer's prima facie entitlement to summary judgment and shifting the burden to the provider. The opposing doctor's affirmation met that burden. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion to dismiss the second cause of action. The appeal was limited to that branch of the cross motion.
Trial court, Second Department
Mar 15, 2010
2010 NY Slip Op 50433(U)
Insurer prevailed
A substitute medical expert may testify to the original peer review's grounds for denial when available for full cross-examination. At trial on medical necessity, the Civil Court, Richmond County, rejected the insurer's peer review reports under CPLR 4518 (a): its representative lacked familiarity with the reviewer's business practices and when the reports were prepared. It nevertheless admitted a different doctor's testimony based on those reports. The court also rejected preclusion under CPLR 3101 (d) (1) (i), finding the disclosure neither misleading nor prejudicial or surprising. The provider had received the reports before trial, including with the expert disclosure. Finding the testifying expert wholly credible and the lack-of-medical-necessity showing unrebutted, the court entered judgment for the insurer and dismissed the action.
Trial court, Second Department
Mar 5, 2010
2010 NY Slip Op 20272
Insurer prevailed
An insurer need not notify an injured assignor when following up on verification requested from the provider under 11 NYCRR 65-3.6 (b). The Civil Court, Richmond County, granted the insurer's summary judgment motion because the provider had not supplied the requested verification and the action was premature. The parties limited the dispute to whether the insurer also had to notify the injured party. The court treated the provider, which submitted the assigned claims, as the applicant entitled to notice of the delay. The provider's attorney had also directed that all correspondence be sent to the attorney's office. Outstanding verification therefore continued to toll the insurer's time to pay or deny.
