Appellate Term, Second Department
Aug 24, 2010
2010 NY Slip Op 51526(U)
Insurer prevailed
MVAIC's affidavit established timely mailing of its denial through a detailed description of office practices based on personal knowledge. The provider's sole appellate challenge concerned the sufficiency of that affidavit. The majority found that the claims representative described the standard procedures used to ensure proper mailing in enough detail to establish timely denial. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint. A dissent would have reversed and denied the motion because the affiant did not demonstrate firsthand knowledge of mailroom procedures and, in the dissent's view, merely concluded that the denial was sent.
Appellate Term, Second Department
Aug 13, 2010
2010 NY Slip Op 51470(U)
Split result
The insurer obtained dismissal of a duplicate claim and removal of the notice of trial to pursue its fraudulent-procurement defense. The Appellate Term, Second Department, reversed, vacated the order, dismissed only the duplicate claim, denied the provider's summary judgment cross motion, struck the notice of trial, and remitted. Spreadsheets lacked an admissible foundation under CPLR 4518 (a) and did not prove timely verification requests. Fraudulent procurement remained available despite preclusion, and certified EUO transcripts supported discovery under CPLR 3101 (a). The notice was timely challenged under 22 NYCRR 208.17 (c). Dismissal of remaining claims and compelled appearances were denied; the assignors, who were not the provider's directors, members, or employees, had to be subpoenaed.
Appellate Term, Second Department
Aug 13, 2010
2010 NY Slip Op 51467(U)
Provider prevailed
The insurer's contradictory medical reports failed to establish entitlement to summary judgment based on lack of medical necessity. In the provider's assigned no-fault action, the insurer submitted an affirmed peer review finding the MRIs unnecessary. Its own IME report found one MRI medically necessary, and other reports contradicted facts stated in the peer review. The Appellate Term, Second Department, affirmed the denial of the insurer's motion because its moving papers failed to establish a prima facie entitlement to judgment. A partial dissent agreed as to the cervical MRI but would have dismissed the shoulder and knee MRI claims, finding no competent medical evidence contradicting the peer review for those studies.
Appellate Term, Second Department
Aug 12, 2010
2010 NY Slip Op 51454(U)
Insurer prevailed
MVAIC established untimely filing of the notice of claim, and the provider showed neither timely filing nor a request for leave to file late. Timely notice under Insurance Law § 5208 (a) is a condition precedent to payment and covered-person status under Insurance Law § 5221 (b) (2). The Appellate Term, Second Department, concluded that Civil Court should have considered MVAIC's claim representative's affidavit despite a de minimis violation of 22 NYCRR 208.4. MVAIC made its prima facie showing, and the provider failed to establish timely notice or an application under Insurance Law § 5208 (b) or (c). The court reversed the judgment, vacated the order, granted MVAIC summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Aug 12, 2010
2010 NY Slip Op 51452(U)
Insurer prevailed
The provider failed to rebut the insurer's peer review or justify deferring summary judgment to obtain the reviewer's underlying records. The insurer established timely denial and submitted an affirmed peer review supplying a factual basis and medical rationale for finding the medical supplies unnecessary. The provider offered no doctor's affirmation rebutting those conclusions. Its assertion that it lacked the reviewer's supporting materials did not establish that those documents were needed to raise a triable issue under CPLR 3212 (f). It also failed to show that it had served discovery demands despite ample opportunity before the motion. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint in favor of the insurer.
Appellate Term, Second Department
Aug 12, 2010
2010 NY Slip Op 51456(U)
Provider prevailed
The insurer failed to establish that the provider had not supplied requested verification, defeating its summary judgment motion. Although the insurer proved timely verification requests under 11 NYCRR 65-3.5 (b), its litigation examiner did not allege that the verification remained outstanding. Its attorney's assertion of nonreceipt lacked a demonstrated basis in personal knowledge. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment dismissing the complaint and denied the motion. A separate concurrence agreed with the findings and emphasized the absence of a statement by someone with personal knowledge that the requests remained unsatisfied.
Appellate Term, Second Department
Aug 12, 2010
2010 NY Slip Op 51455(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials, and the provider's failure to attend the scheduled EUOs. The provider opposed the insurer's summary judgment motion and cross-moved for judgment, challenging notice mailing and proof of nonappearance. Counsel's affirmation detailed the retained firm's standard mailing practices and alleged sufficient facts to establish nonappearance at its office. The insurer's no-fault specialist also established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., EUO attendance is a condition precedent to liability. The Appellate Term, Second Department, reversed, granted the insurer's motion dismissing the complaint, and denied the provider's cross motion; a dissent found counsel's proof lacked personal knowledge of nonappearance.
Appellate Term, Second Department
Aug 2, 2010
2010 NY Slip Op 51442(U)
Provider prevailed
The treating surgeon's opposition and contemporaneous medical reports raised a triable issue whether the knee injuries arose from the accident. The insurer sought summary judgment dismissing a claim for knee surgery, asserting preexisting or degenerative conditions. Its peer reviews and radiology report established prima facie, through objective medical evidence, that the injuries were unrelated to the accident. The surgeon's initial opposition, read with medical and hospital reports documenting knee-pain complaints within days of the accident, nevertheless required a trial. Under CPLR 2214 (c), the provider's more detailed sur-reply should not have been considered because no good cause supported its submission. The Appellate Term, Second Department, excluded that submission from review and affirmed denial of the insurer's motion.
Trial court, Second Department
Aug 31, 2010
2010 NY Slip Op 51588(U)
Provider prevailed
The provider proved timely claim submission through admitted receipt dates, and the insurer failed to prove the MRIs were unnecessary. At trial, the provider's biller established a CPLR 4518 business-record foundation for its bills. The insurer's earlier summary judgment submissions admitted receipt within the 45-day period under 11 NYCRR 65-2.4 (c), eliminating the need for mailing testimony. The insurer's chiropractic expert challenged four MRIs, but failed meaningfully to address evidence that a neurologist recommended spinal imaging and evaluated elbow symptoms, and an orthopedist relied on the knee and elbow results. Applying Nir v Allstate Ins. Co., the District Court, Nassau County, found the defense unproved by a preponderance of the evidence and rendered judgment for the provider.
Trial court, Second Department
Aug 25, 2010
2010 NY Slip Op 51560(U)
Provider prevailed
Testimonial affidavits concerning EUO notices and nonappearances do not qualify as documentary evidence under CPLR 3211 (a) (1). The insurer moved to dismiss an acupuncture provider's assigned-benefits action under CPLR 3211 (a) (1) and (7). Its mailing and calendar-clerk affidavits depended on credibility and substituted for testimony, rather than conclusively resolving the claim through undisputed documents. The complaint stated a cause of action by alleging properly submitted bills for services that remained unpaid. Although outstanding verification tolls the payment-or-denial period under 11 NYCRR 65.15 (h), the insurer had already denied the claim for EUO nonappearance, defeating its prematurity argument. The Civil Court, Kings County, denied the motion and directed the insurer to answer.
Trial court, Second Department
Aug 23, 2010
2010 NY Slip Op 51554(U)
Split result
The insurer's speculative fraudulent-incorporation allegations did not justify consolidation or a stay of the provider's no-fault actions. The insurer sought to consolidate 46 actions at differing litigation stages and add a Mallela defense. Under CPLR 602 (a), consolidation would be unwieldy and prejudicial without sufficient common questions. The Civil Court, Kings County, denied a CPLR 2201 stay because speculation did not establish good cause to investigate under 11 NYCRR 65-3.16 (a) (12) and 65-3.2 (c), but permitted renewal with additional proof. Amendment and additional discovery under CPLR 3025 (b) and 3101 (a) were denied without prejudice to proper applications in individual cases because their procedural postures were unspecified. The provider's sanctions request was denied; remaining insurer requests were left unaddressed as premature.
Trial court, Second Department
Aug 16, 2010
2010 NY Slip Op 51423(U)
Provider prevailed
An insurer may not amend its answer to assert fraud and unjust-enrichment counterclaims based on a precluded fraudulent-billing defense. The insurer sought amendment, discovery, removal from the trial calendar, and consolidation of 19 provider actions. It had partially paid claims and denied the balance for medical necessity or fee-schedule reasons, without asserting fraudulent billing. Under CPLR 3025 (b), the proposed counterclaims lacked merit because they concerned a precluded defense, following Fair Price Med. Supply Corp. v Travelers Indem. Co. and Cornell Med., P.C. v Mercury Cas. Co. Denials first submitted in reply lacked an affidavit proving timely mailing within the 30-day period discussed under 11 NYCRR 65-3.4. The Civil Court, Kings County, denied amendment and the remaining requests as moot.
Trial court, First Department
Aug 6, 2010
2010 NY Slip Op 51414(U)
Insurer prevailed
MVAIC established that the assignor had not qualified for benefits, and the 30-day preclusion rule did not bar that defense. Its qualifications examiner found no notice of intention to claim, police report, or household-insurance affidavit after searching its records. This established lack of qualification and coverage under Insurance Law § 5202 (b) and § 5221 (b) (2). Following MVAIC v Interboro Medical Care & Diagnostic PC, the Civil Court, New York County, held that MVAIC could raise lack of qualification at any time. It also rejected the challenge to verification requests sent to the provider and its attorneys because the claim form supplied no assignor address. The court granted MVAIC summary judgment dismissing the action.
