Appellate Division, First Department
May 27, 2010
2010 NY Slip Op 04522
Insurer prevailed
MVAIC's lack-of-coverage defense is not precluded by failure to pay or deny a no-fault claim within 30 days. MVAIC relied on a police accident report indicating that the offending vehicle was registered out of state and insured. The arbitrator refused to address that defense because MVAIC had missed the deadline under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (c). The Appellate Division, First Department, reversed the denial of vacatur, granted MVAIC's application, vacated the award, and remanded for determination of coverage. The narrow exception for lack-of-coverage defenses applied, but MVAIC retained the burden of proving its defense.
Appellate Division, Second Department
May 11, 2010
2010 NY Slip Op 04186
Insurer prevailed
The claimant failed to establish grounds for vacatur because the arbitration award had evidentiary support and was rationally based. The claimant sought review under CPLR article 75 of an award as modified by the arbitrator. The Appellate Division, Second Department, upheld denial of the petition against the insurer, explaining that CPLR 7511 (b) permits vacatur for violation of strong public policy, complete irrationality or manifest excess of a specific power limitation. Errors of law or fact alone do not warrant vacatur, and even failure to consider specified evidence would not justify setting aside this award. Because CPLR 7511 (e) requires confirmation when vacatur or modification is denied, the court modified the judgment to confirm the award and otherwise affirmed.
Appellate Division, Second Department
May 4, 2010
2010 NY Slip Op 03944
Provider prevailed
Court-ordered disclosure in aid of arbitration under CPLR 3102 (c) requires extraordinary circumstances and necessity. The insurer petitioned to stay no-fault arbitrations temporarily for disclosure. The Appellate Division, Second Department, reversed the order granting the petition, denied it, and dismissed the proceeding. The insurer already possessed sufficient evidence of a potential defense, could potentially obtain disclosure during arbitration under 11 NYCRR 65-4.5 (o) (2), and showed no indication that the material would then be unavailable. Disclosure had to be absolutely necessary to protect a party's rights, rather than merely convenient. The court also dismissed the provider's appeal from the denial of reargument because that order was not appealable.
Appellate Term, First Department
May 24, 2010
2010 NY Slip Op 50911(U)
Insurer prevailed
An insurer need not produce its automobile policy to establish the mandatory no-fault endorsement's IME provision. The insurer established that two IME requests were duly mailed to the assignor and that the assignor failed to appear on either scheduled date. The providers raised no triable issue in opposition. Under 11 NYCRR 65-1.1 and Insurance Law § 5103 (h), the policy must be construed as containing the mandatory IME provision, so production of the policy was unnecessary. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.
Appellate Term, First Department
May 17, 2010
2010 NY Slip Op 50867(U)
Provider prevailed
The providers established overdue claims, and the insurer's late denials and discovery preclusion left no triable issue. The insurer's submissions established receipt of the claims, and it did not dispute the overdue amounts. It failed to deny any claim timely and was precluded by a so-ordered stipulation from offering certain trial evidence because it had not answered interrogatories. The Appellate Term, First Department, modified the order to grant the orthopedic provider summary judgment on the second and third causes of action and both providers partial summary judgment on liability on the first cause of action. Because their papers did not establish allocation of the first claim's damages between them, the matter was remanded for apportionment.
Appellate Term, Second Department
May 13, 2010
2010 NY Slip Op 50889(U)
Insurer prevailed
The provider's default judgment motion lacked personal-knowledge proof of its claim and an admissible business-records foundation. Although the insurer did not oppose the motion, CPLR 3215 (f) required an affidavit or verified complaint from a party with personal knowledge of the claim's factual basis. Counsel's verification did not demonstrate that knowledge, and the third-party billing company's president did not establish admissibility of the attached documents under CPLR 4518. The provider also was not entitled to an alternative finding that it had established its prima facie case for all purposes. The Appellate Term, Second Department, modified the denial to permit renewal on proper papers and otherwise affirmed.
Appellate Term, Second Department
May 13, 2010
2010 NY Slip Op 50884(U)
Insurer prevailed
The treating doctor's conclusory reaffirmation of medical necessity failed to rebut the insurer's sworn peer review and IME reports. The insurer established timely mailing of its denials and submitted chiropractors' reports supplying a factual basis and medical rationale for finding the treatments unnecessary. The treating doctor's opposing affidavit merely reaffirmed that the services were medically necessary without referring to or discussing the insurer's chiropractors' determinations. It therefore raised no triable issue. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
May 13, 2010
2010 NY Slip Op 50887(U)
Provider prevailed
MVAIC's IME confirmation letters did not toll its time to pay or deny, precluding its defense based on the assignor's nonappearance. A scheduling contractor addressed the letters to MVAIC to confirm its examination requests and asserted that carbon copies were sent to the assignor. Those letters were not proper verification requests under 11 NYCRR 65-3.8. MVAIC did not contest the provider's prima facie case. The Appellate Term, Second Department, reversed the judgment, vacated the underlying order, denied MVAIC's summary judgment motion and granted the provider's cross motion. It remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a) and the implementing regulations, and reached no other issue.
Appellate Term, Second Department
May 13, 2010
2010 NY Slip Op 50885(U)
Insurer prevailed
The provider's action was premature because it had not supplied requested verification before commencing suit. The insurer's claims representative established timely mailing of an initial verification request and a follow-up, and the provider did not demonstrate a response before suit. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny therefore had not begun. 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 without prejudice to a new action; it reached no other issue.
Appellate Term, Second Department
May 10, 2010
2010 NY Slip Op 50829(U)
Insurer prevailed
The insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion. The provider submitted the insurer's reports and argued that they lacked medical justification for their conclusions. The insurer established timely denials relying on those reports. The Appellate Term, Second Department, found a sufficient factual basis and medical rationale to create an issue of fact, reversed the amended order granting the provider summary judgment, and denied its motion. It did not review the insurer's challenge to the provider's billing affidavit because that argument was raised for the first time on appeal.
Appellate Term, Second Department
May 10, 2010
2010 NY Slip Op 50828(U)
Insurer prevailed
The provider's claim against MVAIC was dismissed because it was submitted late and no written justification was shown. The provider sought assigned no-fault benefits but undisputedly failed to submit the claim within 45 days after the services were rendered, as required by 11 NYCRR 65-1.1. MVAIC's denial advised that written justification could excuse the delay under 11 NYCRR 65-3.3 (e). In opposing summary judgment, the provider did not establish that it had supplied that justification. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting MVAIC summary judgment dismissing the disputed claim.
Appellate Term, Second Department
May 10, 2010
2010 NY Slip Op 50831(U)
Split result
The provider's billing proof supported its first claim; an unrebutted peer review defeated its third claim on medical necessity. The billing manager's affidavit established admissibility of the provider's documents under CPLR 4518, and the insurer's opposing affidavit did not address the first cause of action. The Appellate Term, Second Department, therefore affirmed the provider's judgment on that claim. For the third cause of action, the insurer established timely denial and submitted an affirmed peer review supplying a factual basis and medical rationale for finding the services unnecessary. The provider did not rebut that evidence. The order, insofar as appealed from, was reversed, and the insurer's cross motion for summary judgment dismissing the third cause of action was granted.
Trial court, Second Department
May 29, 2010
2010 NY Slip Op 20231
Insurer prevailed
Business days under 11 NYCRR 65-3.5 (b) exclude Saturdays, Sundays, and legal holidays when computing the additional-verification deadline. The Civil Court, Kings County, granted the insurer's motion to reargue and vacate its prior order to the extent of denying both parties' summary judgment motions and setting a trial solely on medical necessity. The prior ruling had treated the verification request as two days late, reducing the insurer's denial period to 28 days under 11 NYCRR 65-3.8 (j). On reargument, the court excluded Presidents' Day from the calculation and found the request only one day late. It distinguished the 15-business-day verification deadline from calendar-day periods, which include intervening weekends and holidays.
Trial court, Second Department
May 6, 2010
2010 NY Slip Op 50800(U)
Provider prevailed
The insurer failed to establish lack of medical necessity because its substitute peer review expert did not prove the records' reliability. The Civil Court, Kings County, struck the expert's testimony and entered judgment for the provider. The parties had stipulated to the provider's prima facie case and timely denials, leaving medical necessity as the sole trial issue. A substitute peer review expert could testify, subject to cross-examination and limited to the original report's grounds. Under Wagman v Bradshaw, however, reliance on inadmissible material required both professional acceptance and evidence of reliability. The expert testified that the documents were professionally reliable but presented no evidence establishing their reliability, leaving the insurer without a factual basis and medical rationale for its defense.
Trial court, Second Department
May 3, 2010
2010 NY Slip Op 50813(U)
Provider prevailed
An insurer may not obtain discovery concerning defenses that are precluded and cannot be raised at trial. The insurer sought supplier information and equipment costs to investigate alleged fraud and fee-schedule violations. Under CPLR 3101 (a), discoverability depended on whether those defenses were preserved in timely denials under 11 NYCRR 65-3.8. Without the claims or denials, the District Court, Nassau County, could not determine relevance and denied the motion with leave to renew on proper papers. Discovery from the nonparty supplier required a subpoena under CPLR 3101 (a) (4) and CPLR 3120. Mallela discovery was also improper: fraudulent incorporation was not pleaded under CPLR 3018 (b), and the insurer had not established any licensing requirement for medical-supply-company ownership.
