Appellate Division, Second Department
Nov 30, 2010
2010 NY Slip Op 08933
Insurer prevailed
The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days. In this action for no-fault medical benefits, the Appellate Division, Second Department, affirmed denial of the provider's motion. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), the insurer had 30 days after receipt to pay or deny the claim. The evidence showed compliance with that period. A minor factual discrepancy did not invalidate the denial under the circumstances, and the denial was neither conclusory nor vague and did not assert a defense lacking merit as a matter of law. Because the provider failed to make its prima facie showing, the court did not consider the sufficiency of the insurer's opposition.
Appellate Division, First Department
Nov 30, 2010
2010 NY Slip Op 08783
Insurer prevailed
Insurance Law § 5109 does not displace an insurer's right under Mallela to withhold payment from fraudulently incorporated providers. The provider defendants and a physician sought partial summary judgment in the insurers' action. The Appellate Division, First Department, affirmed denial of the motion. Under 11 NYCRR 65-3.16 (a) (12), providers failing applicable licensing requirements are ineligible for reimbursement. Neither the statute nor its legislative history indicated that it overruled Mallela. Restricting action to the Superintendent of Insurance, when no implementing regulations had been issued, would produce an absurd result contrary to the antifraud purpose of the regulation. The court also rejected the challenge to the unjust-enrichment claim because the complaint alleged unnecessary referrals, testing and radiation.
Appellate Division, Second Department
Nov 30, 2010
2010 NY Slip Op 08936
Provider prevailed
The insurer's proceeding to stay uninsured motorist arbitration was time-barred because it was commenced outside the 20-day period. The injured claimant's attorney sent a certified letter requesting benefits and giving notice of an intention to arbitrate, including the warning that failure to seek a stay within 20 days would preclude specified objections. After a later arbitration request form, the insurer commenced a CPLR article 75 proceeding, alleging that the offending vehicle was insured. The Appellate Division, Second Department, held that the earlier notice triggered the period under CPLR 7503 (c). It reversed the order directing a hearing and granted the claimant's cross motion to dismiss the proceeding as untimely.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52062(U)
Insurer prevailed
The insurer's chiropractor supplied a sufficient medical rationale and factual basis for finding the services medically unnecessary. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and awarding judgment to the provider upon a search of the record, and granted dismissal of the assigned no-fault complaint. The insurer's litigation examiner established timely mailing of the medical-necessity denials through standard office practices. Contrary to District Court's assessment, the chiropractor's affidavit and peer review shifted the burden to the provider. The provider submitted no medical evidence sufficient to raise a triable issue of fact concerning medical necessity.
Appellate Term, First Department
Nov 26, 2010
2010 NY Slip Op 52039(U)
Insurer prevailed
An unvacated default declaratory judgment has res judicata effect against a provider's claims arising from the same accident. In a separate action naming the provider, Supreme Court, Kings County, declared that the insurer could deny all no-fault claims arising from the assignor's accident-related injuries. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motions and dismissed the provider's assigned-benefit complaints. A different result in those actions would impair rights established by the prior judgment. The provider's default did not defeat preclusion because a default judgment that has not been vacated remains a conclusive final determination.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52061(U)
Insurer prevailed
The insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the assigned no-fault complaint. District Court had accepted timely denial but found the peer review insufficient. The appellate court instead found that the report supplied a sufficient factual basis and medical rationale, shifting the burden to the provider. Claims-division affidavits established timely mailing through standard office practices, and the provider's opposition contained no medical evidence sufficient to rebut the insurer's showing.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52057(U)
Insurer prevailed
The scheduled IME doctor's affidavit established that the assignor failed to appear at the office identified in the scheduling letters. The provider's sole appellate issue was whether the defendants proved the assignor's nonappearance. The affidavit established that the assignor missed the IMEs at the doctor's office, located at the address stated in the letters, satisfying the proof requirement under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the defendants' summary judgment motion dismissing the complaint.
Appellate Term, First Department
Nov 26, 2010
2010 NY Slip Op 52041(U)
Insurer prevailed
An insurer need not pay or deny a no-fault claim until it receives all relevant requested verification. The Appellate Term, First Department, reversed the order and granted the insurer summary judgment dismissing the provider's claim as premature under 11 NYCRR 65-3.8 (b) (3). It was undisputed that the insurer never received responses to requests for medical records, and the provider raised no triable issue. A blanket denial based on the assignor's IME nonappearance did not effectively deny the specific claim and did not preclude the alternative verification defense. The provider's estoppel argument was unpreserved and also failed because no competent evidence showed that it was misled or detrimentally relied on the blanket denial.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52059(U)
Insurer prevailed
The insurer's peer reviews established lack of medical necessity, and the claimed rebuttal letter was absent from the record. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the assigned no-fault complaint. Affirmed reports from a neurologist and an internist supplied factual bases and medical rationales for finding the services unnecessary. The provider did not oppose the cross motion. Although it asserted on appeal that a medical-necessity letter rebutted one report, Civil Court's order indicated no opposition was considered, and the record contained no letter. The undisputed CPLR 3212 (g) finding that denials were timely and valid, together with the unrebutted reports, supported dismissal.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52060(U)
Insurer prevailed
The insurer's sworn peer review established lack of medical necessity for the equipment, and the provider did not rebut it. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the assigned no-fault complaint. Civil Court had designated medical necessity as the sole trial issue. The peer review supplied a factual basis and medical rationale for finding the equipment unnecessary. Together with Civil Court's CPLR 3212 (g) finding that the denial was timely and proper, which the provider did not dispute on appeal, the unrebutted report entitled the insurer to judgment.
Appellate Term, Second Department
Nov 26, 2010
2010 NY Slip Op 52063(U)
Provider prevailed
The hospital satisfied requests for signed NF-5 forms by supplying the assignors' executed release authorizations and assignments. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the hospital summary judgment on the first two causes of action and denying the insurer's cross motion alleging prematurity. Although the insurer established timely mailing of its verification requests, it already possessed NF-5 forms marked signature "on file." Because the only portions requiring an injured person's signature authorized information release and assignment or direct payment, the requests effectively sought those underlying documents. The hospital established that it provided them. Counsel's assertion that the insurer never received signed assignments lacked probative value because counsel had no personal knowledge.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52009(U)
Insurer prevailed
The provider's action was premature because the insurer had received no claim forms before suit commenced. The Appellate Term, Second Department, conditionally affirmed summary judgment dismissing the complaint. The insurer's claims representative stated that the bills were first received after commencement and that the provider's prior mailing used an address where the insurer had never been located. The provider timely objected under CPLR 2309 (c) to the out-of-state affidavit. The certificate submitted in reply was not executed by an authorized person under Real Property Law § 299-a. Affirmance required the insurer to serve and file an identical affidavit with a proper certificate within 60 days after service of the decision and order with notice of entry; otherwise, the motion would be denied and the matter remitted.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52022(U)
Insurer prevailed
The provider waived the defect in a chiropractor's affirmed peer review by failing to object in Civil Court. The Appellate Term, Second Department, reversed the judgment, vacated the relevant summary judgment rulings, denied the provider judgment on the first and third causes of action, and granted the insurer's cross motion dismissing both. The first claim was timely denied for lack of medical necessity, and the peer review supplied an unrebutted factual basis and medical rationale. Although affirmed rather than sworn as required under CPLR 2106, its defect was waived. The third claim was premature because timely initial and follow-up verification requests remained unanswered, so the 30-day payment-or-denial period had not begun. The court did not review the uncontested provider prima facie finding.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52010(U)
Insurer prevailed
The insurer raised a triable issue as to whether the New Jersey policy was fraudulently obtained, subject to curing its affidavit. The Appellate Term, Second Department, conditionally modified the order to deny the provider's partial summary judgment motion, while leaving the insurer's cross motion denied. The insurer had not shown cancellation, and its documents did not establish entitlement to dismissal. Under 11 NYCRR 65-3.11 (d), the assignor could not unilaterally revoke the assignment after services were rendered. The insurer's affidavit lacked the conformity certificate required by CPLR 2309 (c) and Real Property Law § 299-a (1). Modification required filing and serving an identical affidavit with a proper certificate within 60 days after service of the decision and order with notice of entry; otherwise, the order would be affirmed.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52011(U)
Provider prevailed
The insurer failed to offer a reasonable excuse for default after knowingly taking no action in the lawsuit for approximately eight months. The Appellate Term, Second Department, reversed the order granting vacatur and denied the insurer's motion, leaving the provider's default judgment in place. Under CPLR 5015 (a), excusable-default relief required both a reasonable excuse and a meritorious defense. The claims administrator attributed delay to difficulty locating a file being transferred to the insurer that purchased the policy, and counsel was assigned only after the file was obtained. The court found that account insufficient because the insurer and administrator knew of the action yet failed to seek an extension to answer under CPLR 2004.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52015(U)
Insurer prevailed
The insurer's sworn peer review established lack of medical necessity for testing, and the practitioner's affidavit did not rebut it. The Appellate Term, Second Department, reversed the order and granted the insurer's unopposed motion for summary judgment dismissing the assigned no-fault complaint. Affidavits established timely mailing of the denials through standard office practices, and the peer review supplied a factual basis and medical rationale for finding the testing unnecessary. Although the insurer's motion papers included an affidavit from the provider's health care practitioner, that affidavit did not meaningfully address the peer review's conclusions and therefore did not defeat the insurer's showing.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52019(U)
Split result
A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the second, third, fifth and eighth causes of action. Timely denials and affirmed peer reviews established lack of medical necessity for those services. Because the insurer objected to the principal's affirmation, its factual assertions should not have been considered, leaving no admissible rebuttal evidence. Denial of the insurer's motion remained in place on the sixth cause of action because neither peer review addressed those services, so the insurer failed to shift the burden on that claim.
Appellate Term, Second Department
Nov 19, 2010
2010 NY Slip Op 52020(U)
Insurer prevailed
The provider's doctor's affirmation failed to rebut the peer reviews and did not warrant changing the summary judgment result on reargument. The Appellate Term, Second Department, modified the reargument order to adhere to the prior order granting the insurer summary judgment dismissing the assigned no-fault complaint. The insurer established timely denials and submitted affirmed peer reviews supplying factual bases and medical rationales for lack of medical necessity. The provider's opposing affirmation did not meaningfully address those conclusions. Although the provider argued on reargument that Civil Court had overlooked the affirmation, it was insufficient to raise a triable issue, so the court's subsequent denial of the insurer's motion could not stand.
Appellate Term, Second Department
Nov 17, 2010
2010 NY Slip Op 52008(U)
Provider prevailed
The insurer failed to reasonably explain its failure to refile opposition papers after the clerk identified the filing error. The Appellate Term, Second Department, affirmed denial of the insurer's motion to vacate the order granting the provider summary judgment on default and the resulting judgment. Under CPLR 5015 (a), vacatur required both a reasonable excuse and a meritorious defense. Law office failure could qualify under CPLR 2005 only if supported by sufficient evidentiary facts and a detailed explanation. The insurer did not adequately explain why it ignored instructions to refile in the correct Civil Court part. A dissent would have granted vacatur, finding the filing errors excusable and the provider's billing and mailing proof deficient.
Appellate Term, Second Department
Nov 12, 2010
2010 NY Slip Op 51962(U)
Insurer prevailed
The insurer established that discovery concerning the provider's alleged fraudulent incorporation was needed to oppose summary judgment. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denying the insurer's cross motion to compel its owner's deposition. Under CPLR 3212 (f), essential facts potentially supporting the defense were within the provider's possession and could not yet be stated because the provider had not produced its owner. The defense rested on 11 NYCRR 65-3.16 (a) (12) and Mallela, and the insurer established entitlement to the deposition under CPLR 3101 (a). The provider was directed to produce its owner within 60 days or another agreed date; summary judgment was denied without prejudice to renewal after the deposition.
Appellate Term, First Department
Nov 12, 2010
2010 NY Slip Op 51930(U)
Split result
MVAIC raised a triable coverage issue by submitting competent evidence of a potential source of insurance for the loss. The provider established prima facie entitlement to assigned no-fault benefits, but MVAIC's evidence created a factual issue concerning its lack-of-coverage defense under Insurance Law § 5221. The Appellate Term, First Department, modified the order to deny the provider's summary judgment motion and otherwise affirmed, leaving in place the implicit denial of MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 12, 2010
2010 NY Slip Op 51963(U)
Insurer prevailed
The provider's notice of trial was vacated because its certificate of readiness incorrectly stated that discovery was complete. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's timely motion under 22 NYCRR 208.17 (c), compelling discovery, denying a protective order, and denying provider summary judgment. Although CPLR 3103 (a) permits a protective order at any time, the provider offered no reasonable excuse for delaying its request after receiving discovery demands. The billing company's president also failed to demonstrate personal knowledge of the provider's business practices sufficient to establish admissibility under CPLR 4518. The provider therefore failed to establish prima facie entitlement to summary judgment.
Appellate Term, Second Department
Nov 12, 2010
2010 NY Slip Op 51964(U)
Insurer prevailed
The insurer's peer review supplied a factual basis and medical rationale for finding the assignor's testing medically unnecessary. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved to dismiss for lack of medical necessity. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after denial of the provider's motion and grant of the insurer's cross motion. The chiropractor's affidavit and report adequately supported the defense. The provider submitted no health care practitioner's affidavit meaningfully addressing or rebutting the peer review's conclusions.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51896(U)
Insurer prevailed
The provider's late claims were dismissed because it showed no written justification, and its conclusory demand for discovery did not defeat judgment. The provider undisputedly missed the 45-day submission deadline under 11 NYCRR 65-1.1. MVAIC's denials advised that written justification could excuse delay under 11 NYCRR 65-3.3 (e), but the provider did not establish that it supplied any. Its assertion that discovery was needed to oppose summary judgment was insufficient under CPLR 3212 (f); proof of its own reasonable justification would already be in its possession. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion to compel discovery.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51897(U)
Insurer prevailed
The insurer's peer review and the provider's rebuttal created a triable issue of medical necessity, precluding provider summary judgment. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its summary judgment motion, and denied that motion, leaving denial of the insurer's cross motion intact. The insurer's claims employee established timely mailing of the denial, preserving the medical necessity defense. Its doctor's affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. The provider's owner, a chiropractor, submitted an admissible affidavit meaningfully addressing and sufficiently rebutting that report. The provider's prima facie showing was not challenged on appeal, and the appellate court did not pass on its propriety.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51900(U)
Insurer prevailed
The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's IME conclusions. The insurer sought summary judgment dismissing the fifth cause of action for lack of medical necessity. Its doctor's affidavit and affirmed IME report established that defense. The claim form identified the opposing physician as the provider corporation's principal, making the affirmation improper because the corporation was a party. The facts and exhibits presented through that affirmation should not have been considered. Even if considered, the affirmation did not meaningfully address or rebut the IME report. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the fifth cause of action.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51898(U)
Split result
The insurer established fee schedule and medical necessity defenses but failed to justify dismissal of the initial acupuncture visit claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, and otherwise affirmed, preserving provider summary judgment only for that visit under Insurance Law § 5106 (a). It denied provider summary judgment on causes two and three and codes 97810 and 97811 in cause one, granting insurer dismissal of those claims under the chiropractor acupuncture fee schedule, following Great Wall Acupuncture v GEICO Gen. Ins. Co. It also dismissed causes four and five: the insurer's IME established lack of medical necessity for subsequent services, and the treating acupuncturist failed to rebut it. The matter was remitted for statutory interest and attorney fees on the remaining award.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51899(U)
Insurer prevailed
The insurer established timely denials, proper fee schedule reductions, and lack of medical necessity for the remaining acupuncture services. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied provider summary judgment, and granted the insurer's cross motion dismissing the complaint. The insurer's standard office practices affidavit established timely mailing. Following Great Wall Acupuncture v GEICO Gen. Ins. Co., the insurer properly used the workers' compensation fee schedule for acupuncture performed by chiropractors. For the remaining services, the examining acupuncturist's IME report and affidavit established lack of medical necessity for services after the examination. The treating acupuncturist's opposing affidavit did not meaningfully address or rebut those conclusions.
Appellate Term, Second Department
Nov 8, 2010
2010 NY Slip Op 51902(U)
The insurer's proof raised a factual question about employment at the time of the accident for the Workers' Compensation Board to resolve first. The Appellate Term, Second Department, reversed and remitted both sides' summary judgment motions to be held in abeyance pending a prompt Board application to determine rights under the Workers' Compensation Law. Unless the providers filed proof of that application within 90 days or showed good cause, their motion would be denied and the insurer's dismissal cross motion granted. The District Court had denied provider summary judgment for pleading insufficiency and required amendment. The appellate court noted that, although pleaded under one cause of action, each provider's claims and requested amounts were separately stated.
Appellate Term, First Department
Nov 5, 2010
2010 NY Slip Op 51885(U)
Provider prevailed
The provider's trial judgment was affirmed after MVAIC failed to prove that the assignor was unqualified for no-fault benefits. The Appellate Term, First Department, found that the evidence, fairly interpreted, supported the award. Under Matter of MVAIC v Interboro Med. Care & Diagnostic PC, MVAIC's conceded late denial did not preclude its qualification defense.
Trial court, Second Department
Nov 16, 2010
2010 NY Slip Op 51994(U)
Insurer prevailed
The insurer proved that a custom-fitted lumbosacral orthosis lacked medical necessity through unrebutted expert testimony. The Civil Court, Queens County, denied the provider's motion to preclude a chiropractor testifying in place of the peer reviewer. Following Urban Radiology, P.C. v Tri-State Consumer Insurance Co., the opinion was admissible as a hypothetical assumption that, if the medical records were true, the orthosis was unnecessary. The expert explained that restricting movement conflicted with conservative treatment promoting movement and that the device was reserved for surgical candidates or postoperative care. The records showed strains and sprains and recommended continued conservative care. The provider offered no rebuttal witness. The court entered judgment for the insurer and dismissed the complaint.
