Appellate Term, Second Department
Apr 16, 2010
2010 NY Slip Op 50716(U)
Insurer prevailed
The insurer established the provider's failure to appear for duly scheduled EUOs through an affirmation from its retained counsel. 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. Counsel alleged sufficient facts to establish the provider's nonappearances at counsel's office. Under 11 NYCRR 65-1.1, an assignee's appearance at an EUO upon a proper request is a condition precedent to policy liability. The Civil Court's findings under CPLR 3212 (g) that the EUO requests were mailed and the claims timely denied were unchallenged by the provider, leaving no issue requiring trial.
Appellate Term, Second Department
Apr 16, 2010
2010 NY Slip Op 50715(U)
Insurer prevailed
The insurer's unrebutted medical testimony and affirmed peer review report established that the services were not medically necessary. The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and directed judgment for the insurer dismissing the complaint. The doctor's testimony and report supplied a factual basis and medical rationale for the medical-necessity defense. The insurer's separate standing challenge failed: the assignment named a different entity, but that discrepancy appeared on the assignment accompanying the claim. Because the insurer neither sought verification concerning the assignment nor denied the claim on that ground, it was precluded from litigating the defect under Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co.
Appellate Term, Second Department
Apr 16, 2010
2010 NY Slip Op 50713(U)
Insurer prevailed
MVAIC established untimely notice of claim, and the provider failed to show timely filing, filing as soon as reasonably possible, or leave for late filing. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted MVAIC summary judgment dismissing the complaint, and denied the provider's cross motion. Timely notice under Insurance Law § 5208 (a) is a condition precedent to seeking payment from MVAIC and must be established for covered-person status under Insurance Law § 5221 (b) (2). MVAIC made a prima facie showing of untimeliness, and the provider did not establish timely compliance, filing as soon as reasonably possible, or an application for leave under Insurance Law § 5208 (b) and (c).
Appellate Term, Second Department
Apr 13, 2010
2010 NY Slip Op 50700(U)
Insurer prevailed
The insurer's unrebutted affirmed peer review report established lack of medical necessity and warranted summary judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint. The Civil Court had found under CPLR 3212 (g) that the provider submitted its claims and the insurer timely denied them, leaving medical necessity for trial. The provider argued that the report merely raised a triable issue. The appellate court instead held that a report supplying a factual basis and medical rationale established the insurer's prima facie defense and shifted the burden to the provider. Because the provider did not rebut that evidence, no trial was required.
Appellate Term, Second Department
Apr 13, 2010
2010 NY Slip Op 50708(U)
Insurer prevailed
The insurer's evidence required the Workers' Compensation Board to resolve the assignor's alleged eligibility for workers' compensation benefits. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted the insurer's summary judgment motion to be held in abeyance pending a prompt Board application. The insurer submitted sufficient admissible evidence supporting its contention that the assignor was acting as an employee when the accident occurred. The Board had primary jurisdiction over the coverage issue under the Workers' Compensation Law. The provider was required to file proof of a Board application within 90 days of the appellate order; otherwise, the Civil Court was directed to dismiss the complaint unless the provider showed good cause.
Appellate Term, Second Department
Apr 13, 2010
2010 NY Slip Op 50698(U)
Insurer prevailed
A provider's claim against MVAIC is premature until remedies against a known vehicle owner have been exhausted. The provider and assignor knew the identity of the owner of the vehicle that struck the assignor. MVAIC sought summary judgment because the assignor had not provided proof of exhaustion of insurance remedies against that owner, and the provider cross-moved for summary judgment. Following Hauswirth v American Home Assur. Co. and Complete Med. Servs. of NY, P.C. v MVAIC, the Appellate Term, Second Department, affirmed the judgment dismissing the complaint pursuant to the order granting MVAIC's motion and denying the provider's cross motion.
Appellate Term, Second Department
Apr 13, 2010
2010 NY Slip Op 50702(U)
Provider prevailed
The providers' prior discovery dismissal did not bar a second action because it was not with prejudice and no preclusion order appeared. The Appellate Term, Second Department, affirmed the denial of the insurer's pre-answer motion to dismiss under CPLR 3211 (a) (5). The insurer asserted res judicata based on dismissal of an identical action under CPLR 3126 (3) for failure to comply with a discovery order. Following Maitland v Trojan Elec. & Mach. Co., such a dismissal does not determine the merits unless it is with prejudice or the plaintiff's proof is effectively closed by preclusion or summary judgment. The prior dismissal and record did not establish that bar.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 20130
Provider prevailed
The provider was not collaterally estopped by default declaratory judgments in actions where it was neither a party nor in privity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's summary judgment request on collateral-estoppel grounds. The judgments declared no coverage on proof that the collisions were staged, but the provider had not been named or served and lacked a full and fair opportunity to defend. Under Gramatan Home Invs. Corp. v Lopez and Kaufman v Eli Lilly & Co., the absence of privity and actual litigation defeated estoppel. The court remitted the insurer's alternative lack-of-coverage ground for determination; a dissent would have affirmed based on the assignor-assignee relationship and the insurer's fraud proof.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 20131
Insurer prevailed
⚠ Overruled by Fresh Acupuncture, P.C. v Interboro Ins. Co. (2017 NY Slip Op 27214)
The provider's summary judgment motion was denied because unproduced discovery could support the insurer's Mallela defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and compelling discovery concerning corporate status and other nonprecluded issues. Under CPLR 3212 (f), essential facts concerning fraudulent incorporation under 11 NYCRR 65-3.16 (a) (12) were within the provider's possession, and the provider had not complied with discovery demands. Because the provider had not challenged those demands, the insurer was entitled to interrogatory responses, document production, and depositions under CPLR 3101 (a), excluding palpably improper or privileged requests. The court rejected the provider's contention that addressing the Mallela defense required a declaratory judgment beyond Civil Court's jurisdiction.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50647(U)
Insurer prevailed
MVAIC established that the assignor failed to file a timely notice of claim, seek leave for late filing, or provide proof of New York residency. The provider opposed summary judgment by arguing that MVAIC had not timely denied the claims and had not established the asserted notice and residency requirements. The Appellate Term, Second Department, affirmed dismissal of the complaint. Under Insurance Law § 5208 (a) and (c), the absence of timely notice or an application for late filing meant the assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to applying for no-fault benefits was therefore unsatisfied. MVAIC also established the absence of residency proof.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50646(U)
Insurer prevailed
⚠ Not followed by Omega Diagnostic Imaging, P.C. v MVAIC (2011 NY Slip Op 51259(U))
The provider's action against MVAIC was barred by the three-year limitation because later denials did not postpone the payment due date. The Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of MVAIC's cross motion dismissing the complaint under CPLR 214 (2). The provider's own submissions established receipt of the bills by May 21, 2002, making payment due no later than June 20, 2002, under Insurance Law § 5106 (a). Although an initial verification request may have tolled payment, the record showed no timely follow-up under 11 NYCRR 65-3.6 (b). The action commenced in April 2006 was untimely; the court did not reach the provider's remaining summary judgment contentions.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50650(U)
The provider's medical affirmation required a hearing on whether its allegedly stamped signature was valid. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted for a hearing and a new determination of the insurer's summary judgment cross motion. The insurer relied on a peer review report finding the equipment medically unnecessary. The provider's doctor's affirmation, if admissible, sufficiently raised a triable issue of medical necessity, but the insurer challenged the signature in both courts. That challenge ordinarily could not be resolved from the motion papers alone. Under CPLR 2218 and 22 NYCRR 208.11 (b) (4), a limited hearing would determine signature validity and whether the insurer's prima facie showing was rebutted.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50649(U)
Insurer prevailed
The provider's action was premature because requested verification remained outstanding despite follow-up requests mailed on the 30th day. 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. The provider's billing-manager affidavit established admissibility under CPLR 4518, and proof of claim submission established its prima facie case. Nevertheless, the provider had not answered either the timely initial verification requests or the follow-ups, which preceded expiration of the full response period. Following Infinity Health Prods., Ltd. v Eveready Ins. Co. on nearly identical facts, the court concluded that the insurer's 30-day period to pay or deny had not commenced.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50648(U)
Insurer prevailed
The provider's failure to comply with a conditional preclusion order barred its prima facie proof and required dismissal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint. The provider did not serve complete discovery responses within the required 45 days, causing the conditional order to become absolute. That order precluded the provider from offering evidence on subsequent motions or at trial. To avoid its effect, the provider had to demonstrate both an excusable default and a meritorious cause of action. Because it failed to make that showing, it could not establish a prima facie case.
Appellate Term, Second Department
Apr 9, 2010
2010 NY Slip Op 50653(U)
Insurer prevailed
The insurer proved timely mailing of the IME scheduling letters and the assignor's failure to appear for the scheduled examinations. 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. The insurer's litigation specialist described a standard office procedure ensuring proper addressing and mailing. At the Civil Court's direction, the insurer also submitted a supplemental affirmation from the examining physician establishing the nonappearances. Those submissions established the insurer's prima facie defense. The appellate court did not review the provider's prima facie showing because the insurer raised no issue concerning it on appeal.
Appellate Term, Second Department
Apr 8, 2010
2010 NY Slip Op 50639(U)
Insurer prevailed
The provider's failure to comply with a so-ordered discovery stipulation made its conditional evidentiary preclusion absolute. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint. The stipulation required complete discovery responses within 45 days and precluded evidence on later motions or at trial upon noncompliance. It therefore operated as a conditional preclusion order. The provider could avoid that order's effect only by demonstrating an excusable default and a meritorious cause of action. Because it failed to do so, it was precluded from establishing its prima facie case, entitling the insurer to dismissal.
Appellate Term, Second Department
Apr 8, 2010
2010 NY Slip Op 50642(U)
Insurer prevailed
The insurer established a need for discovery of facts in the provider's possession concerning alleged fraudulent incorporation. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion without prejudice to renewal after discovery, and granted the insurer's cross motion to compel, except for palpably improper or privileged matters. Under CPLR 3212 (f), the insurer showed that essential facts supporting its defense under Mallela and 11 NYCRR 65-3.16 (a) (12) might exist but could not be presented because the provider had not complied with discovery demands. The provider had not challenged those demands. The insurer was also entitled under CPLR 3101 (a) to depose the provider's owner.
Appellate Term, Second Department
Apr 8, 2010
2010 NY Slip Op 50641(U)
Insurer prevailed
The provider had to exhaust remedies before seeking MVAIC benefits because it and its assignor knew the vehicle owner's identity. MVAIC sought summary judgment because no proof established exhaustion of insurance remedies against the vehicle owners. The Appellate Term, Second Department, affirmed the order conditionally granting MVAIC summary judgment unless the provider filed proof of lack of insurance within 60 days. Following Hauswirth v American Home Assur. Co., the court rejected the provider's contention that requiring such proof imposed an improper burden.
Appellate Term, Second Department
Apr 2, 2010
2010 NY Slip Op 50601(U)
Split result
The insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment cross motion and otherwise affirmed, leaving both sides' motions denied. The claims representative's affidavit described, from personal knowledge, detailed office procedures ensuring proper addressing and mailing of the denial. The insurer's psychologist supplied a sworn peer review report with a factual basis and medical rationale, establishing prima facie entitlement to dismissal. In response, the psychologist who examined the assignor submitted a sworn letter sufficient to raise a factual issue concerning the necessity of the psychological services.
Appellate Term, Second Department
Apr 2, 2010
2010 NY Slip Op 50594(U)
Split result
The provider's claims failed in part for outstanding verification and duplicate billing, while separate reimbursement remained disputed. The Appellate Term, Second Department, reversed the judgment and denied the provider's summary judgment motion. It granted the insurer's cross motion dismissing the second, fourth, fifth, sixth, and ninth causes of action and the $30.80 portion of the third as premature. Initial requests under 11 NYCRR 65-3.5 (b) and follow-ups mailed on the 29th or 30th day remained unanswered. The tenth cause was dismissed as duplicative. Neither side obtained summary judgment on the first, seventh, and eighth causes or the $523.20 portion of the third because whether those services were included in another service and separately reimbursable remained a triable issue; those claims were remitted.
Appellate Term, Second Department
Apr 2, 2010
2010 NY Slip Op 50597(U)
Insurer prevailed
The insurer justified its appearance default and established an unrebutted medical-necessity defense, supporting vacatur and dismissal. The Appellate Term, Second Department, affirmed the order vacating the provider's default judgment and underlying summary judgment order and, upon vacatur, effectively granting the insurer's prior summary judgment cross motion. Under CPLR 5015 (a) (1), the insurer needed a reasonable excuse and meritorious defense. Its attorney's affirmation supplied a detailed explanation of the oversight. Its claims specialist described office mailing procedures from personal knowledge, establishing timely and proper mailing of denials and a verification request. Affirmed peer review reports established prima facie that the services were not medically necessary, and the provider failed to rebut that showing.
Trial court, Second Department
Apr 28, 2010
2010 NY Slip Op 50882(U)
Insurer prevailed
The provider's no-fault action was time-barred under the six-year contract limitations period based on its own admissions. The Civil Court, Richmond County, dismissed the complaint on the insurer's limitations motion under CPLR 3211 (a) (5), alternatively seeking summary judgment. CPLR 213 (2) governed, and accrual occurred upon denial or overdue payment under Insurance Law § 5106. Applying the former regulations, 11 NYCRR 65.12 and 65.15 (g) (3), the court added the 180-day submission period and 30-day payment period to the admitted service date. The claim became overdue no later than March 23, 1999. The provider admitted timely bill submission and service of the summons and complaint on August 6, 2008, beyond six years.
Trial court, Second Department
Apr 8, 2010
2010 NY Slip Op 50604(U)
Split result
One provider's claim was dismissed for unexplained EUO nonappearances despite an asserted defect in the follow-up notice's timing. The District Court, Nassau County, denied both providers' summary judgment motion because misdated bills did not constitute admissible business records under CPLR 4518. It granted the insurer's cross motion against the nonappearing provider. An investigator supplied objective justification for the EUO, and that provider neither explained the defaults nor challenged the extensive documentation demands. Under 11 NYCRR 65-3.6 (b), the follow-up period ran from 30 days after the original request, rather than the first nonappearance. The other provider's claim remained for trial because causation presented a factual issue; the court also denied preclusion relief under CPLR 3126.
Trial court, Second Department
Apr 7, 2010
2010 NY Slip Op 20118
Split result
The 120-day limit in CPLR 3212 (a) does not govern District Court summary judgment motions made after a notice of trial. The District Court, Suffolk County, considered the insurer's motion and granted dismissal of all disputed claim portions except those billed under CPT codes 99244 and 99214. The insurer established timely mailing, correct application of fee-schedule ground rule 11 to codes 97010, 97032, and 97250, improper new-patient billing under codes 99204 or 99205, and correct payment of the disputed 99213 service. For 99244, its coder offered only a conclusory explanation for substituting 99204; for 99214, the coder gave no explanation for substituting 99213. Those two portions remained because the insurer failed to establish entitlement to summary judgment under CPLR 3212 (b).
Trial court, First Department
Apr 7, 2010
2010 NY Slip Op 20180
Insurer prevailed
A provider's assigned no-fault claim originating with an individual is outside the Commercial Small Claims Part's jurisdiction. After oral testimony, the Civil Court, Bronx County, dismissed the provider's two actions without prejudice so they could be transferred to the No-Fault Part under New York City Civil Court Act § 1805-A (b). The insurer challenged subject matter jurisdiction because the claims had belonged to an individual rather than a commercial entity. Relying on New York City Civil Court Act § 1809 (1) and § 1809-A, the court concluded that assignment did not make the claims commercial. The court also reasoned that the specialized No-Fault Part, with motion practice and limited discovery, was the proper forum for adjudicating these medical-benefit claims.
