Appellate Division, Second Department
Jun 1, 2010
2010 NY Slip Op 04795
Insurer prevailed
The claimant's SUM arbitration was permanently stayed because the policy excluded injuries sustained while occupying an owned, uncovered motorcycle. The claimant sought benefits under a household family member's automobile policy after reporting that an unidentified vehicle caused the motorcycle collision. The Appellate Division, Second Department, reversed denial of the insurer's petition and granted a permanent stay. The SUM endorsement unambiguously excluded bodily injury incurred while occupying a vehicle owned by the insured but not insured for SUM coverage under that policy. Ownership and the absence of coverage for the motorcycle were undisputed. The court also found that the mandatory uninsured motorist provision contained a similar exclusion, but that provision had been removed by amendment and replaced with the SUM endorsement, consistent with 11 NYCRR 60-2.3 (e).
Appellate Term, First Department
Jun 21, 2010
2010 NY Slip Op 20244
Provider prevailed
A provider may establish entitlement to overdue no-fault benefits through an insurer's admissions resulting from an unanswered notice to admit. The Appellate Term, First Department, affirmed a directed-verdict judgment for the provider, which called no trial witnesses. Under CPLR 3123 (a), the insurer's failure to respond admitted that the attached bills were accurate copies of those received and remained unpaid. Those straightforward facts were within the insurer's knowledge or ascertainable by reasonable inquiry, and no substantial dispute existed. Their importance to the prima facie case did not bar the requests. The admissions conclusively resolved the facts, so witness testimony laying a foundation for the bills was unnecessary. The court declined to follow Bajaj v General Assur. to the extent inconsistent.
Appellate Term, Second Department
Jun 11, 2010
2010 NY Slip Op 51057(U)
Insurer prevailed
EUO notices sent by retained counsel are not nullities when they identify the insurer's retention of counsel and are sent on its behalf. The provider's only appellate argument challenged the letters because counsel, rather than the insurer directly, sent them. The letters clearly informed the assignor that the insurer had retained counsel and that counsel was acting on its behalf. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment and denying the provider's cross motion based on the assignor's failure to attend two properly scheduled EUOs, a breach of a coverage condition precedent; it reached no other issue.
Appellate Term, Second Department
Jun 11, 2010
2010 NY Slip Op 51053(U)
Insurer prevailed
The provider failed to prove submission of its claim because its mailing certificate identified a different insurer. The provider sought summary judgment for assigned no-fault benefits, while the insurer asserted that the claim was submitted more than 45 days after the services. Under Insurance Law § 5106 (a), the provider had to establish submission of a statutory claim form and overdue payment. Proper mailing could be shown by actual mailing or a standard office practice. Here, the discrepancy between the billing manager's affidavit and the attached mailing certificate defeated proof of submission to the defendant. The Appellate Term, Second Department, reversed the judgment, vacated the summary judgment order, and denied the provider's motion.
Appellate Term, Second Department
Jun 11, 2010
2010 NY Slip Op 51054(U)
Provider prevailed
A dismissal for want of prosecution under CPLR 3216 does not bar a new action on res judicata grounds unless it specifies otherwise. The provider commenced a Kings County action on the same cause of action, seeking additional relief, while the insurer's dismissal motion in the Queens County action was pending. The earlier action was dismissed on default without specifying that dismissal was on the merits. Under CPLR 3216 (a), it was not with prejudice and did not preclude the new action. The Appellate Term, Second Department, reversed and denied the insurer's dismissal motion. The parties' statute-of-limitations arguments under CPLR 213 (2) were not properly before it because they had not been raised in Civil Court.
Appellate Term, Second Department
Jun 11, 2010
2010 NY Slip Op 51064(U)
The compulsory intercompany arbitration awards were supported by the evidence and were not arbitrary and capricious. The petitioning insurer sought recovery under Insurance Law § 5105 of no-fault benefits paid to insureds injured in a multivehicle accident. The arbitrator considered the parties' evidence, including a police report and the opposing insurer's affirmative defense, and the awards rested on a reasonable hypothesis. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying vacatur and effectively confirming the awards. It also converted the action to a special proceeding under CPLR 103 (c), because CPLR 7502 (a) required that procedure for an initial application to confirm awards under CPLR 7510.
Appellate Term, Second Department
Jun 8, 2010
2010 NY Slip Op 50987(U)
Insurer prevailed
The insurer established premature claims for unanswered verification and lack of medical necessity for the remaining claims. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint. Detailed affidavits established timely mailing. For two claims, unanswered verification tolled payment or denial; the provider should have advised that requests belonged with the referring physician rather than remain silent. For the other two claims, an affirmed peer review established lack of medical necessity. The provider could not challenge its own records or require exclusion of other providers' records, which were assumed true rather than offered for their truth. It also failed to show a need for those records under CPLR 3212 (f) or timely discovery efforts.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50991(U)
Insurer prevailed
Denial forms offered to show that claims were denied, rather than to prove their contents, need not qualify as business records. The Appellate Term, Second Department, affirmed summary judgment for the insurer and denial of the provider's cross motion. The insurer's representative established standard mailing procedures and timely denials. Because the forms were not offered for a hearsay purpose, CPLR 4518 did not require a business-records foundation, and the insurer need not authenticate the provider's own records. The insurer also established proper mailing of EUO notices by retained counsel and the assignor's nonappearance. Attendance was a condition precedent to liability under 11 NYCRR 65-1.1; the assignor's attorney's rescheduling or confirmation contacts indicated communication with and representation of the assignor.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50990(U)
Insurer prevailed
Denial forms and a cancellation notice offered for a nonhearsay purpose need not qualify as business records under CPLR 4518. The insurer sought summary judgment on two assignors' claims based on policy cancellation before their accident and on another assignor's claim from a separate accident based on lack of medical necessity. The provider challenged admissibility of the denials and cancellation notice. The denials were offered to show that they were sent and the claims denied, rather than to prove their contents; the cancellation notice likewise was not offered for a hearsay purpose. The Appellate Term, Second Department, rejected the business-records objections, found the remaining contentions meritless, and affirmed dismissal of the complaint.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50993(U)
Insurer prevailed
A conditional preclusion order becomes absolute when a provider fails to comply sufficiently and timely with its discovery requirements. A so-ordered stipulation required full discovery responses by a specified deadline or precluded the provider from offering that evidence at trial. The provider did not comply on time and supplied responses only after the insurer moved for summary judgment. To avoid preclusion, it had to demonstrate a reasonable excuse and a meritorious cause of action, but it offered no excuse and failed to meet that burden. Because preclusion prevented the provider from establishing its prima facie case, the Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's summary judgment motion.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50997(U)
Insurer prevailed
The provider failed to rebut the insurer's medical necessity showing or demonstrate that discovery was needed to raise a triable issue. The insurer supported its summary judgment motion with proof of timely denial and an affirmed peer review supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider asserted that it lacked information and documents used by the peer reviewer and needed them to oppose the motion under CPLR 3212 (f). It did not demonstrate that discovery was necessary to show a triable factual issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50998(U)
Provider prevailed
⚠ Overruled by Mollo Chiropractic, PLLC v American Commerce Ins. Co. (2013 NY Slip Op 23419)
MVAIC was denied summary judgment because factual issues remained concerning whether its denial was issued in duplicate. MVAIC sought dismissal of the provider's assigned no-fault claim for untimely submission. The provider opposed, asserting a previously offered reasonable excuse and challenging proof that the denial had been sent in duplicate. Relying on 11 NYCRR 65-3.8 (c) (1) and New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying MVAIC's motion because issues of fact existed. The denial of the provider's cross motion was not under review.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50995(U)
Provider prevailed
A dismissal for want of prosecution under CPLR 3216 does not bar a new action on res judicata grounds unless it specifies otherwise. After the insurer served a 90-day demand and moved to dismiss the provider's Queens County action, the provider commenced a Kings County action on the same cause of action. The first action was dismissed on default without specifying that dismissal was on the merits. Under CPLR 3216 (a), that dismissal was neither on the merits nor with prejudice and did not preclude the new action between the same parties. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50992(U)
Insurer prevailed
A provider must show a reasonable excuse and a meritorious claim to avoid a conditional preclusion order made absolute by noncompliance. The provider failed to serve verified discovery responses within the deadline fixed by a so-ordered stipulation providing for preclusion. It served responses more than a year late, after the insurer moved to dismiss under CPLR 3126, and offered no excuse for the delay. The stipulation operated as a conditional preclusion order that became absolute upon insufficient and untimely compliance. Because the provider failed to meet the requirements for relief and preclusion prevented it from establishing a prima facie case, the Appellate Term, Second Department, affirmed the judgment dismissing the complaint.
Appellate Term, Second Department
Jun 4, 2010
2010 NY Slip Op 50994(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity, and the provider raised no triable issue in response. After the Civil Court denied both parties' summary judgment applications, the insurer appealed only the denial of its cross motion. The insurer established timely mailing of denials asserting lack of medical necessity and submitted its peer review chiropractor's affidavit and report. Those submissions supplied a factual basis and medical rationale for concluding that the services were not medically necessary. The provider left that showing unrebutted. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 3, 2010
2010 NY Slip Op 20219
The provider's judgment was reversed because the agreed facts omitted whether treatment expenses were incurred within one year of the accident. The Appellate Term, Second Department, remitted the matter for a more definite stipulation or trial and dismissed the separate appeal from the decision. Insurance Law § 5102 (a) (1) addresses ascertainability of further expenses within one year, while 11 NYCRR 65-3.16 (a) (3) excludes liability if no relevant expenses were incurred during that period. The stipulation identified the benefits application and later services but did not establish whether any provider treated the assignor within the first year. Because expenses are incurred when treatment is received, the omitted fact prevented determination on an agreed submission under CPLR 3222 (b) (5).
Trial court, Second Department
Jun 23, 2010
2010 NY Slip Op 51263(U)
Provider prevailed
An insurer's blanket objections to a notice to admit constituted admissions establishing the provider's prima facie case at trial. Neither party presented witnesses, and the provider relied on requests concerning receipt of its claim and assignment, the absence of verification requests, and nonpayment. The District Court, Suffolk County, held that CPLR 3123 required admissions, denials, or a detailed sworn explanation; an objection that the facts were material did not suffice. An improper request required a protective order under CPLR 3103. The admissions established overdue benefits under Insurance Law § 5106 (a), and the insurer offered no rebuttal evidence. Judgment was entered for the provider.
Trial court, Second Department
Jun 4, 2010
2010 NY Slip Op 51090(U)
Provider prevailed
The insurer's peer review failed to address the treating doctor's MRI rationale or explain the test's positive findings. The District Court, Nassau County, denied the insurer's summary judgment motion on its medical necessity defense. The treating doctor's letter justified a cervical MRI by persistent neck pain and stiffness after two months of treatment, supported by medical records; the MRI showed multiple disc herniations. Although facially supported by a factual basis and medical rationale, the peer review did not specifically answer that justification or establish entitlement to judgment. The provider could not dispute timely mailing merely by challenging the insurer's proof after admitting receipt of the denial, keeping no receipt-date records, and alleging no particular receipt date.
