Court of Appeals
Oct 21, 2010
2010 NY Slip Op 07417
Insurer prevailed
An arbitrator's failure to apply collateral estoppel does not alone permit vacatur of an award under CPLR 7511 (b) (1) (iii). A no-fault arbitrator found that the claimant's shoulder injury was accident-related, but a subsequent SUM arbitrator reached the opposite conclusion and denied benefits. The Court of Appeals affirmed confirmation of the SUM award in the insurer's favor. The preclusive effect of the earlier award was for the arbitrator to determine, and legal error generally was beyond judicial review absent irrationality, violation of strong public policy or excess of a specifically enumerated power limitation. The award was not patently irrational or egregious enough to violate public policy; a dissent would have reversed because disregarding the prior causation finding exceeded the arbitrator's authority.
Appellate Division, Second Department
Oct 12, 2010
2010 NY Slip Op 07331
Provider prevailed
The insurer's intoxication defense failed because its evidence did not connect the assignor's alleged intoxication to the injuries. The provider established prima facie entitlement to summary judgment for no-fault medical payments. Although the insurer's evidence raised a factual question about whether the assignor operated a vehicle while intoxicated, it supplied no evidence of the accident's circumstances. Under Insurance Law § 5103 (b) (2) and 11 NYCRR 65-3.14 (b), intoxication alone did not raise a triable issue whether the assignor was injured as a result of operating a vehicle in that condition. The Appellate Division, Second Department, reversed and granted the provider's motion, while rejecting its separate challenges to the denial form's facial sufficiency and consideration of uncertified medical records.
Appellate Division, First Department
Oct 7, 2010
2010 NY Slip Op 07111
Provider prevailed
MVAIC failed to show arbitral misconduct in the refusal to adjourn a hearing for a belated investigation of other insurance. The Appellate Division, First Department, reversed the order and judgment insofar as appealed from, denied MVAIC's vacatur petition, granted the providers' cross petition, and confirmed the awards. Under CPLR 7506 (b) and 7511 (b) (1) (i), refusal of an adjournment warrants vacatur when it prejudicially forecloses material evidence, with misconduct proved by clear and convincing evidence. MVAIC had approximately three years' notice of the identified insurer's coverage denial but offered no explanation for delaying its investigation. Although an untimely lack-of-coverage defense was not precluded, MVAIC failed to show sufficient cause for its last-minute adjournment request.
Appellate Term, First Department
Oct 22, 2010
2010 NY Slip Op 51820(U)
Insurer prevailed
A claim for no-fault benefits under an insurance policy accrues when payment becomes overdue, rather than upon an untimely denial. The Appellate Term, First Department, reversed denial of the insurer's summary judgment motion and dismissed the provider's complaint as barred by the six-year limitations period. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), this claim became overdue 30 days after receipt. The provider's reliance on Matter of Taggart v State Farm Mut. Auto. Ins. Co. was misplaced because that decision concerned a general denial terminating benefits for lack of continuing disability under former 11 NYCRR 65.15 (g) (2) (ii), now 65-3.8 (b) (2), rather than a specific submitted claim.
Appellate Term, Second Department
Oct 20, 2010
2010 NY Slip Op 51842(U)
Insurer prevailed
An insurer need not annex the third-party records reviewed by its peer reviewer as part of its prima facie summary judgment showing. The insurer established timely denials and submitted an affirmed peer review providing a factual basis and medical rationale for finding the services unnecessary. The provider argued that omission of the underlying records defeated the motion. The Appellate Term, Second Department, rejected that argument and affirmed summary judgment dismissing the complaint. Although CPLR 3212 (f) permits denial or a continuance for needed discovery, the provider supplied no evidentiary basis suggesting discovery would yield relevant evidence. Mere hope of uncovering a material factual issue did not warrant delay, and the provider failed to rebut the insurer's showing.
Appellate Term, Second Department
Oct 20, 2010
2010 NY Slip Op 51843(U)
Provider prevailed
MVAIC's motion to vacate its default judgment was untimely because it was made more than one year after service of notice of the judgment. The provider sought assigned no-fault benefits, and MVAIC moved under CPLR 5015 to vacate the judgment entered against it. The Appellate Term, Second Department, affirmed denial under CPLR 5015 (a) (1). It alternatively rejected MVAIC's defense because Insurance Law § 5214 does not bar a default judgment in an action naming MVAIC as defendant when MVAIC defaults. The court found it unnecessary to consider whether MVAIC had demonstrated a reasonable excuse.
Appellate Term, Second Department
Oct 20, 2010
2010 NY Slip Op 51845(U)
Insurer prevailed
The insurer established the assignor's failure to appear for duly scheduled EUOs, defeating the provider's summary judgment motion. The provider sought assigned no-fault benefits, and the insurer opposed on the ground of EUO nonappearance. An associate of the law firm retained to conduct the EUOs submitted an affirmation setting out sufficient facts to establish that the assignor had not appeared at the firm's office. Appearance at an EUO is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion.
Appellate Term, First Department
Oct 15, 2010
2010 NY Slip Op 51779(U)
Provider prevailed
MVAIC's demand for a no-insurance affidavit from an uncontrolled nonparty driver was improper and did not render the action premature. MVAIC requested that the provider and assignor obtain the affidavit from the out-of-state driver whose vehicle struck the assignor. Under 11 NYCRR 65-3.2 (c), there was no good reason for demanding an affidavit from a nonparty beyond their control. The provider established its prima facie entitlement to benefits, and MVAIC raised no triable issue. MVAIC's qualification argument lacked merit, and it did not establish that exhaustion of remedies applied on this record. The Appellate Term, First Department, affirmed the order granting the provider summary judgment and denying MVAIC's cross motion.
Appellate Term, First Department
Oct 15, 2010
2010 NY Slip Op 51780(U)
Provider prevailed
MVAIC's summary judgment motion was denied because material disclosure remained outstanding. The Appellate Term, First Department, affirmed the order denying dismissal of the provider's assigned no-fault action and stated that MVAIC could renew its motion after disclosure was completed. It also rejected MVAIC's assertion that the provider had to establish its assignor's status as a qualified person. Following Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC and New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., the burden on qualification rested with MVAIC.
Appellate Term, First Department
Oct 15, 2010
2010 NY Slip Op 51778(U)
Insurer prevailed
Assigned no-fault claims against MVAIC are subject to a three-year statute of limitations because its payment obligation is statutory. MVAIC is a statutorily created entity and is not analogous to a self-insurer, so the six-year limitations period applicable to claims against a self-insurer does not govern. Following Shtarkman v Motor Veh. Acc. Indem. Corp. and the reasoning in Pinnacle Open MRI, P.C. v Republic Western Ins. Co., the Appellate Term, First Department, found the providers' claims untimely because they were interposed after three years. It reversed the order, insofar as appealed from, granted MVAIC's summary judgment motion, and dismissed the complaint as time-barred.
Appellate Term, Second Department
Oct 5, 2010
2010 NY Slip Op 51775(U)
Insurer prevailed
The provider's action was premature because it failed to supply all requested additional verification. The insurer moved for summary judgment, establishing that it timely requested the additional verification. The provider argued that it had responded and attached its responses, but the record unequivocally demonstrated that not all requested verification had been furnished. Applying 11 NYCRR 65-3.8 (a), the Appellate Term, Second Department, affirmed the order granting the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 5, 2010
2010 NY Slip Op 51770(U)
Provider prevailed
The insurer failed to prove timely denials through a representative who began work after the alleged mailings or through other mailing evidence. The Appellate Term, Second Department, affirmed the provider's judgment entered upon grant of its summary judgment motion and denial of the insurer's cross motion. The provider's billing administrator established admissibility of its documents under CPLR 4518. The insurer supplied neither proof of actual mailing nor proof of standard mailing practices during the pertinent period. It therefore failed to establish freedom from preclusion of its proffered defenses under Fair Price Med. Supply Corp. v Travelers Indem. Co. and Presbyterian Hosp. in City of NY v Maryland Cas. Co., and established neither entitlement to dismissal nor a triable issue.
Appellate Term, Second Department
Oct 5, 2010
2010 NY Slip Op 51772(U)
Insurer prevailed
The insurer established an excusable law office default and a meritorious medical necessity defense warranting vacatur. The Appellate Term, Second Department, reversed denial of vacatur, granted the insurer's motion under CPLR 5015 (a) (1), and denied the provider summary judgment. The insurer's opposition had been rejected when filed almost a month after the stipulated deadline. Its attorneys' affirmations supplied the detailed evidentiary explanation needed to accept law office failure under CPLR 2005. Its claims employee established timely denials based on a verified peer review and affirmed IME reports finding the services unnecessary, raising a triable issue. Relief from an order entered on default must be sought under CPLR 5015, rather than through renewal or reargument as the Civil Court had directed.
Appellate Term, Second Department
Oct 5, 2010
2010 NY Slip Op 20416
Provider prevailed
An insurer seeking to vacate a default judgment for intrinsic fraud under CPLR 5015 (a) (3) must also show a reasonable excuse for default. The insurer alleged that the provider's summary judgment submissions contained false affidavits and altered claim forms. The Appellate Term, Second Department, reversed the order granting vacatur, denied the insurer's motion, and reinstated the provider's judgment. The attorney's affirmation did not establish personal knowledge of the facts underlying the claimed law office failure, and factual allegations first raised in a reply affirmation were disregarded. The insurer therefore failed to establish a reasonable excuse. A dissent would have affirmed, finding adequate proof of law office failure and a meritorious intrinsic-fraud defense.
Appellate Term, Second Department
Oct 5, 2010
2010 NY Slip Op 51771(U)
Insurer prevailed
The insurer's timely denial and affirmed peer review raised a triable issue of medical necessity for the supplied equipment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. Contrary to the insurer's challenge, the billing manager's affidavit established admissibility of the provider's documents under CPLR 4518. Contrary to the Civil Court's finding, the insurer's claims employee established timely mailing through standard office practices and procedures. The affirmed peer review provided a factual basis and medical rationale for finding the supplies unnecessary. That admissible evidence sufficed to defeat the provider's motion without resolving medical necessity as a matter of law.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51738(U)
The Workers' Compensation Board has primary jurisdiction to resolve factual questions about workers' compensation coverage. The insurer moved under CPLR 3211 (a) (2), offering admissible evidence raising whether the assignor was acting as an employee when injured. The Appellate Term, Second Department, reversed the providers' judgment, vacated grant of their summary judgment motion and denial of dismissal, and remitted the matter for abeyance pending a prompt Board application. The Civil Court should await the Board's determination under the Workers' Compensation Law before deciding the motions. Unless the providers filed proof of the application within 90 days or showed good cause, their motion would be denied and the insurer's motion to dismiss granted.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51722(U)
Insurer prevailed
The provider's complaint was properly struck for willful noncompliance with discovery orders after inadequate and unreasonable excuses. The provider missed the initial 60-day deadline and a further opportunity to comply, supplied only selected interrogatory responses, and withheld corporate documents. The Appellate Term, Second Department, affirmed denial of review and vacatur under CPLR 3104 (d) and the striking of the complaint under CPLR 3126 (3). Law of the case did not apply to prior discovery orders. Because the provider had not timely challenged demands under CPLR 3120 and 3122, it had to produce the requested information except palpably improper or privileged matters; it could not answer only items it deemed material and necessary.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51721(U)
Split result
The insurer established lack of medical necessity for one claim, but unsigned peer review reports did not support dismissal of the others. Two providers sued for assigned no-fault benefits, and the insurer cross-moved for summary judgment based on lack of medical necessity. An affirmed peer review supplied a factual basis and medical rationale for denying one provider's claim, and that provider offered no rebuttal. The report addressing that provider's remaining claim and the other provider's claim was unsigned and failed to establish entitlement to judgment. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss only the claim supported by the affirmed report and otherwise affirmed the denial of the insurer's cross motion.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51728(U)
Insurer prevailed
The insurer established lack of medical necessity for the first cause of action and IME nonappearance for the other three causes. The Appellate Term, Second Department, reversed the order, insofar as appealed from, granted the insurer's cross motion dismissing the complaint, and denied the provider's request to deem facts established under CPLR 3212 (g). For cause one, an affirmed peer review supplied a factual basis and medical rationale that the provider's doctor's affirmation failed to meaningfully rebut. For causes two through four, the scheduling company's affidavit established mailing of IME notices and the examining doctor's affidavit established nonappearance. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., IME attendance is a condition precedent to policy liability; remaining appellate contentions were not reached.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51729(U)
Insurer prevailed
The provider failed to establish admissible billing records because its third-party biller lacked demonstrated knowledge of its business practices. The Appellate Term, Second Department, affirmed denial of the provider's unopposed summary judgment motion for assigned no-fault benefits. The supporting affidavit came from the billing company's president, who did not demonstrate personal knowledge sufficient to establish admissibility of the annexed documents under CPLR 4518. The provider therefore failed to make a prima facie showing of entitlement to summary judgment despite the absence of opposition; the appellate court reached no other issue.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51733(U)
Insurer prevailed
The insurer established full payment of one claim and an unrebutted medical necessity defense to the remaining claim. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint. Payment of the first claim, including statutory interest and attorney fees, was undisputed. For the remaining supplies, the insurer submitted an affirmed peer review setting out a factual basis and medical rationale for lack of medical necessity. The provider's objection to considering that report lacked merit under Urban Radiology, P.C. v Tri-State Consumer Ins. Co. The provider submitted no medical practitioner's affidavit rebutting the peer review and therefore raised no triable issue.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51734(U)
Insurer prevailed
The insurer's peer-review evidence established lack of medical necessity, and the provider failed to submit a meaningful medical rebuttal. Sworn peer-review reports and the reviewing chiropractor's affidavit supplied a factual basis and medical rationale for finding the medical supplies unnecessary. The insurer also established timely mailing of its denials through standard office practices and procedures. The provider offered no health care practitioner's affidavit meaningfully addressing or rebutting the peer-review conclusions. 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
Oct 1, 2010
2010 NY Slip Op 51718(U)
Insurer prevailed
The provider's trial judgment was reversed and its complaint dismissed because its documents were inadmissible and it lacked a prima facie case. The Appellate Term, Second Department, relied on two prior decisions in Andrew Carothers, M.D., P.C. v GEICO Indem. Co. The challenged CPLR 4518 foundation was offered through an outside billing company's manager; without the documents, the provider's proof was insufficient.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51723(U)
Provider prevailed
The insurer failed to establish that the provider submitted its claim forms beyond the applicable 45-day deadline. The insurer sought summary judgment dismissing the provider's action for assigned no-fault benefits, asserting that it never received the claim forms and invoking a 180-day submission period. Under 11 NYCRR 65-1.1, the services at issue were subject to a 45-day deadline. Although the complaint stated the total claimed, it omitted the service dates and did not attach the claim forms. The insurer's unexplained knowledge of those dates undermined its assertion of nonreceipt. The Appellate Term, Second Department, reversed the order granting the insurer summary judgment and denied its motion.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51724(U)
Insurer prevailed
The insurer proved timely denials and full payment under the chiropractor acupuncture fee schedule for the three appealed claims. The provider sought unpaid balances on five acupuncture claim forms, but the insurer limited its appeal to three. Its claims employee's affidavit established timely mailing through standard office practices and procedures, contrary to the Civil Court's conclusion. The insurer properly applied the workers' compensation fee schedule for acupuncture performed by chiropractors to services rendered by a licensed acupuncturist and paid the full allowable amounts. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied provider summary judgment on the unpaid portions of those three claims, and granted the corresponding branches of the insurer's cross motion.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51725(U)
Provider prevailed
The insurer's petition to vacate the master arbitrator's award was denied, and the award was confirmed. The Appellate Term, Second Department, affirmed, finding no statutory ground under CPLR 7511 and stating that the award had evidentiary support and a rational basis. A separate concurrence disputed the arbitrators' additional peer review requirement but agreed that the error did not rise to the level of being arbitrary and capricious.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51727(U)
Insurer prevailed
The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branch of the provider's motion addressing that claim form. The provider's medical billing supervisor established admissibility of the annexed documents under CPLR 4518; no other aspect of its prima facie showing was challenged. The insurer's mail and file manager and litigation examiner established timely denial mailing through standard office practices and procedures. The affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary, providing admissible evidence of a triable issue.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51731(U)
Insurer prevailed
The insurer proved full payment of fee schedule claims and raised a medical necessity issue on the remaining acupuncture claims. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order, and denied provider summary judgment. Searching the record, it dismissed cause seven and the fee schedule portion of cause six, remitting causes one through five and the medical necessity portion of cause six for further proceedings. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the insurer properly paid under the chiropractor acupuncture fee schedule. Its examining acupuncturist's affidavit and IME report raised a factual issue on the other claims. The provider had established its prima facie case under Insurance Law § 5106 (a), but the insurer's proof defeated judgment.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51735(U)
Insurer prevailed
The insurer proved timely denial and full payment under the chiropractor fee schedule for the acupuncturist's billed services. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied provider summary judgment, and searched the record to grant the insurer summary judgment dismissing the complaint. The provider's billing manager established admissibility of its documents under CPLR 4518. The insurer's employee established timely denial mailing through standard office practices and procedures. Following Great Wall Acupuncture, P.C. v GEICO Ins. Co., the insurer properly applied the workers' compensation fee schedule for chiropractors rendering the same services. Because full payment of the amount allowed under that schedule was undisputed, dismissal was appropriate upon searching the record.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51736(U)
Insurer prevailed
The provider's counsel's affirmation did not rebut the insurer's supported peer review finding the medical supplies unnecessary. The Appellate Term, Second Department, reversed denial of the insurer's summary judgment motion and granted dismissal of the complaint. The insurer established timely mailing of its denial through standard office practices and procedures. Its sworn peer review report and reviewing chiropractor's affidavit provided a factual basis and medical rationale for lack of medical necessity. The provider submitted only counsel's affirmation, with no health care practitioner's affidavit meaningfully addressing or rebutting the report's conclusions. The Civil Court therefore should not have reserved medical necessity for trial.
Appellate Term, Second Department
Oct 1, 2010
2010 NY Slip Op 51737(U)
Insurer prevailed
The insurer's timely denial and supported peer review raised a triable issue of medical necessity, defeating provider summary judgment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, and denied the provider's motion for assigned no-fault benefits. The provider's billing manager established admissibility of its documents under CPLR 4518, shifting the burden to the insurer. The insurer's affidavit established timely mailing of the medical necessity denial through standard office practices and procedures. Its doctor's affirmed peer review set out a factual basis and medical rationale for finding the services unnecessary. That admissible proof established a factual issue requiring denial of the provider's motion.
Trial court, Second Department
Oct 13, 2010
2010 NY Slip Op 20431
Provider prevailed
A timely claim for treatment after an IME cutoff is presumed medically necessary, and the insurer must rebut that presumption. After trial, the District Court, Nassau County, entered judgment for the provider for chiropractic treatment rendered after an IME. The examiner had concluded that no further care was needed but had not reviewed records of the later treatment and did not know the assignor's condition or the treatment provided. The insurer therefore failed to establish a factual basis and medical rationale for finding that treatment unnecessary. Citing 11 NYCRR 65-1.1 (d), which permits reasonably required IMEs, and the fair-payment principles of 11 NYCRR 65-3.2 (a) and (b), the court rejected reliance on the cutoff alone.
