Appellate Division, Third Department
Dec 23, 2010
2010 NY Slip Op 09456
Provider prevailed
The insurer waived its assignment-based standing defense by failing to raise it in a pre-answer motion or its answer. The injured claimant sued to recover benefits for chiropractic treatment after the insurer stopped payment following an IME finding that further treatment was unnecessary. After discovery, the insurer first asserted on summary judgment that the claimant had assigned the right to payment to the chiropractor. The Appellate Division, Third Department, reversed the order dismissing the complaint and denied the insurer's motion. Under CPLR 3211 (a) (3) and (e), the standing defense was waived. Whether the claimant was the proper person to pursue benefits was separate from subject-matter jurisdiction and did not affect Supreme Court's power to determine liability for no-fault benefits.
Appellate Division, Second Department
Dec 14, 2010
2010 NY Slip Op 09256
Insurer prevailed
The provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company. The Appellate Division, Second Department, affirmed the Appellate Term's reversal of the provider's judgment after a nonjury trial and dismissal of the complaint. The billing company did not create the records, and its employee was not shown to know the provider's record-keeping procedures. A recipient unfamiliar with the maker's practices may establish a foundation by showing incorporation into its own records or reliance in daily operations. Mere printing and mailing established neither. The inadmissible forms therefore could not establish the provider's prima facie case; its remaining contention was unpreserved.
Appellate Division, Second Department
Dec 7, 2010
2010 NY Slip Op 09121
Insurer prevailed
The insurer was not collaterally estopped from seeking a judgment reduction based on partially exhausted policy limits. The provider had obtained summary judgment for unpaid no-fault benefits, and the insurer later cross-moved under CPLR 5019 (a) to reduce the resulting judgment because payments to other providers had partially exhausted coverage. The Appellate Division, Second Department, affirmed the order granting that relief insofar as reviewed. The earlier summary judgment ruling addressed only timely payment or denial and receipt of verification, so it did not resolve policy exhaustion. The court expressly declined to decide whether CPLR 5019 (a) was a proper procedural mechanism because the provider had not objected. Appeals by two other providers were dismissed because they were not aggrieved.
Appellate Term, First Department
Dec 30, 2010
2010 NY Slip Op 20530
Insurer prevailed
The insurer's claims examiner established mailing of verification requests through firsthand knowledge of standard office practices. The Appellate Term, First Department, reversed the provider's trial judgment and dismissed the action as premature under 11 NYCRR 65-3.5 (b). The examiner personally prepared the initial and follow-up requests and described systematic mail pickup, dispatch, and handling of undeliverable letters. The majority found that this proof established mailing and presumed receipt without testimony from a mail clerk or an actual-mailing witness. The provider neither denied receipt nor claimed or showed a response. A dissent would have affirmed, finding the examiner lacked sufficient knowledge of mailing practices and that the trial finding deserved deference.
Appellate Term, First Department
Dec 30, 2010
2010 NY Slip Op 52267(U)
Insurer prevailed
The insurer's unrebutted peer review established that medical supplies were unnecessary given the assignor's existing therapy. The provider sought assigned no-fault benefits for supplies furnished to the assignor. An affirmed physician's peer review concluded that the assignor was already receiving physical and chiropractic therapy sufficient for the injuries, making the supplies medically unnecessary. The provider submitted no medical necessity evidence in opposition and thus failed to raise a triable issue. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion and dismissed the complaint.
Appellate Term, Second Department
Dec 23, 2010
2010 NY Slip Op 52316(U)
Insurer prevailed
The insurer's peer reviews established lack of medical necessity, and the provider failed to justify delaying summary judgment for discovery. Two admissible peer review reports supplied factual bases and medical rationales for finding the supplies unnecessary. The provider invoked CPLR 3212 (f), claiming it lacked documents reviewed by the experts, but did not show that those documents were needed to raise a triable issue or that it had served discovery demands despite ample opportunity before the motion. The finding under CPLR 3212 (g) that denials were timely and properly mailed was undisputed on appeal. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 20, 2010
2010 NY Slip Op 52229(U)
Provider prevailed
The insurer failed to prove provider ineligibility based on unlicensed control, even under a preponderance standard. The Appellate Term, Second Department, affirmed the providers' trial judgment and dismissed the postjudgment appeal as academic. Under 11 NYCRR 65-3.16 (a) (12) and Mallela, unlawful control defeats reimbursement, but the record lacked indicia of ownership or control beyond the licensed professional; the proper burden of proof remained undecided. Because mailing of denials was unproved, interest was never tolled and accrued 30 days after submission. Compound interest under former 11 NYCRR 65.15 (h) (1) governed these claims and was consistent with Insurance Law § 5106 (a). The limitations defense was waived under CPLR 3211 (e) because it was omitted from the answer and any pre-answer dismissal motion.
Appellate Term, Second Department
Dec 16, 2010
2010 NY Slip Op 52222(U)
Insurer prevailed
A peer reviewer may assume the truth of treatment records to assess medical necessity without using those records for a hearsay purpose. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing the provider's assigned no-fault claims. The insurer established timely mailing through evidence of standard office practices, and its affirmed peer review established lack of medical necessity. The provider could not challenge its own records' reliability, and authentication of other providers' records was irrelevant because they were not offered to prove injury or treatment. The provider also failed under CPLR 3212 (f) to show that those records were needed to oppose summary judgment despite ample opportunity for discovery. The insurer's request for sanctions remained denied.
Appellate Term, Second Department
Dec 16, 2010
2010 NY Slip Op 52223(U)
Insurer prevailed
A peer review may assume medical-record facts are true to assess necessity without using the records for a hearsay purpose. The insurer's affirmed report established lack of medical necessity, and affidavits proved timely denial mailing. The provider could not challenge its own records' reliability; as assignee, it acquired no greater rights than the assignor, and the insurer could consider other providers' records. The reviewer assumed the recorded facts rather than proving injury or treatment. The provider also failed under CPLR 3212 (f) to show that it needed other providers' records to raise a triable issue, despite ample opportunity for discovery. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 16, 2010
2010 NY Slip Op 52226(U)
Split result
An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist. The provider sought additional assigned no-fault benefits after reimbursement under that schedule. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's cross motion dismissing the unpaid fee-schedule balances. It also dismissed charges for later services because the insurer's IME reports established lack of medical necessity and the provider's affidavit did not meaningfully address their conclusions. The cross motion remained denied as to one other claim because the insurer failed to establish entitlement to judgment; that claim was remitted for further proceedings.
Appellate Term, Second Department
Dec 16, 2010
2010 NY Slip Op 52220(U)
Provider prevailed
The insurer's summary judgment motion based on payment of the four disputed bills was denied on appeal. The Appellate Term, Second Department, reversed the dismissal order because the insurer failed to make a prima facie showing that those bills had been paid. Applying CPLR 3212, it required denial regardless of the sufficiency of the provider's opposition.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52162(U)
Insurer prevailed
A provider that fails to timely challenge discovery demands must respond, except as to privileged or palpably improper matters. The Appellate Term, Second Department, affirmed the order granting the insurer's motion to vacate the notice of trial, strike the action from the trial calendar, and compel discovery responses. The motion was timely under 22 NYCRR 208.17 (c), and the provider did not dispute that discovery remained outstanding despite its certificate of readiness stating otherwise. Laches did not warrant denial. Because the provider had not timely objected under CPLR 3122 (a) and CPLR 3133 (a), it was required to comply with the direction to respond within 60 days, subject to the stated exceptions.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52159(U)
Insurer prevailed
The provider's action was premature because timely verification requests remained unanswered when it sued. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the assigned no-fault complaint. The claims examiner's affidavit established timely mailing of the initial and follow-up requests through standard office practices. The billing manager's denial of receipt did not rebut the mailing and receipt presumptions. Sending the assignor's copies to a wrong address did not invalidate requests directed to the provider under 11 NYCRR 65-3.5 (c) and 11 NYCRR 65-3.6 (b). Because the provider did not show that it supplied verification before commencing suit, the insurer's 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a).
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52157(U)
Insurer prevailed
The insurer's peer reviews established lack of medical necessity, and the provider submitted no written opposition to the cross motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the assigned no-fault complaint. Civil Court had denied both parties' motions and limited trial to medical necessity. The insurer's claims employee established timely mailing of the denials through standard office practices, and two affirmed peer review reports supplied factual bases and medical rationales for finding the services unnecessary. Because the provider failed to rebut that prima facie showing, the insurer was entitled to dismissal.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52158(U)
Insurer prevailed
The insurer's affirmed peer review established lack of medical necessity, and the provider did not rebut that showing. 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 limited trial to medical necessity after finding the provider's prima facie case established and the denial timely and proper. The peer review supplied a factual basis and medical rationale for finding the services unnecessary. Together with the undisputed CPLR 3212 (g) finding concerning the denial, that unrebutted evidence entitled the insurer to dismissal.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52154(U)
Insurer prevailed
The provider failed to establish its prima facie case because its officer's affidavit did not authenticate the supporting documents as business records. The Appellate Term, Second Department, reversed the judgment awarding assigned no-fault benefits, vacated the underlying orders, denied the provider's summary judgment motion, and remitted the complaint for further proceedings. The affidavit did not establish admissibility under CPLR 4518 (a). Reversal rendered academic the insurer's motion to recalculate statutory interest and attorney's fees and the provider's cross motion to enter judgment using its calculations. The insurer's appellate request for restitution under CPLR 5523 was denied without prejudice to seeking that relief in Civil Court upon determination of the action's merits.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52155(U)
Insurer prevailed
The insurer's peer review established lack of medical necessity for the supplies, and the provider did not oppose the cross motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the assigned no-fault complaint. An affidavit describing standard office practices established timely mailing of the denial, and the affirmed peer review supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider's failure to oppose left no triable issue of medical necessity, although Civil Court had designated that issue for trial.
Appellate Term, Second Department
Dec 10, 2010
2010 NY Slip Op 52385(U)
The provider's appeal from a discovery order became academic after the action was dismissed for noncompliance with that order. In an action for assigned no-fault benefits, the Civil Court adjourned the provider's summary judgment motion and the insurer's cross motion while directing production of employment records for the provider's billing manager and a deposition of that manager. A subsequent order dismissed the action because the provider failed to supply the ordered discovery. The Appellate Term, Second Department, dismissed the appeal as academic because that dismissal eliminated the live controversy concerning the earlier order.
Appellate Term, Second Department
Dec 8, 2010
2010 NY Slip Op 52151(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the Florida insurer or grounds for further jurisdictional discovery. The Appellate Term, Second Department, affirmed the insurer's dismissal motion and denial of the provider's cross motion for discovery or alternative relief involving MVAIC. Service invoked CCA 404, but the insurer's litigation specialist denied New York business activity and contacts; the provider's challenge to that affidavit and request for discovery were insufficient. The court left open whether the post-answer motion objection was properly before it, but disregarded the nonprejudicial mislabeling under CPLR 3211 and excused omission of the answer under CPLR 3212 (b). Civil Court could not permit a late MVAIC claim because MVAIC was not a party.
Appellate Term, Second Department
Dec 8, 2010
2010 NY Slip Op 52153(U)
Split result
The insurer established lack of medical necessity for six claims but failed to substantiate fee-schedule reductions or timely denial of another claim. The Appellate Term, Second Department, reversed the judgment and granted the insurer's cross motion dismissing the fourth, sixth, seventh, eighth, ninth and tenth causes of action. Affirmed peer review and IME reports supplied medical rationales that the treating doctor's affidavit did not meaningfully rebut. The provider established its prima facie case through records admissible under CPLR 4518 and conceded receipt. Summary judgment for the provider remained on the first three causes because the insurer omitted actual reimbursement rates, and on the fifth because timely denial was unproved. The matter was remitted for interest, attorney's fees and judgment on those four claims.
Appellate Term, Second Department
Dec 8, 2010
2010 NY Slip Op 52150(U)
Insurer prevailed
The provider failed to establish jurisdiction over the Florida insurer despite invoking the long-arm statute for service. The Appellate Term, Second Department, affirmed dismissal of the assigned no-fault action and denial of the provider's discovery and MVAIC motions. The insurer's affidavit denied New York authorization and contacts, and the provider showed neither a jurisdictional basis under CCA 404 nor unavailable essential facts warranting discovery. The court left open whether the post-answer motion objection was properly before it, but disregarded the nonprejudicial CPLR 3211 mislabeling and excused omission of the answer under CPLR 3212 (b). Civil Court lacked jurisdiction to permit a late notice of claim to MVAIC, which was not a party.
Appellate Term, Second Department
Dec 8, 2010
2010 NY Slip Op 52152(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the Florida insurer or a basis for jurisdictional discovery. The Appellate Term, Second Department, affirmed dismissal of the assigned no-fault action, denial of discovery, and denial of leave to file a late MVAIC claim. Service invoked CCA 404, but the insurer's affidavit denied New York authorization, business activity or contacts, and the provider showed no jurisdictional basis or unavailable essential facts. The court left open whether the objection to a post-answer CPLR 3211 (a) (8) motion was properly before it, but found the mislabeling nonprejudicial and excused omission of the answer under CPLR 3212 (b). Civil Court lacked jurisdiction over MVAIC because it was not a party.
Appellate Term, First Department
Dec 7, 2010
2010 NY Slip Op 52297(U)
The Workers' Compensation Board must first resolve the factual question whether the assignor's loss falls under the Workers' Compensation Law. The insurer alleged that the loss occurred during employment, and its submissions raised a factual issue concerning workers' compensation coverage. The Appellate Term, First Department, reversed and vacated the order granting the insurer's cross motion and denying the providers' summary judgment motion. It remanded for a new determination after the providers applied to the Board, which has primary jurisdiction over applicability of the Workers' Compensation Law. Both motions should have been held in abeyance. The court also upheld the finding of timely denials under 11 NYCRR 65-3.8 (a) (1) and 11 NYCRR 65-3.8 (c).
Appellate Term, First Department
Dec 3, 2010
2010 NY Slip Op 52294(U)
Insurer prevailed
The insurer retained its verification toll despite an early follow-up and a later follow-up outside the prescribed period. The provider did not dispute mailing of the requests or its failure to respond. A follow-up issued 15 days after expiration of the initial 30-day response period did not strictly comply with 11 NYCRR 65-3.6 (b), but under the circumstances that delay did not eliminate the toll. An earlier improper follow-up did not invalidate the later request. Following Infinity Health Prod., Ltd. v Eveready Ins. Co., the provider's nonresponse left the action premature. The Appellate Term, First Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 3, 2010
2010 NY Slip Op 20493
The provider's prima facie case and licensing eligibility remained disputed, precluding a trial limited to excessive fees. The Appellate Term, Second Department, reversed the provider's directed-verdict judgment, vacated the portion of the prior order limiting trial, and remitted for a new trial. CPLR 3212 (g) permits facts to be deemed established only when undisputed or incontrovertible. The record did not establish submission of proof of loss and nonpayment within 30 days under Insurance Law § 5106 (a), or eliminate the insurer's other defenses. The insurer had raised a triable issue concerning certification to practice acupuncture under 11 NYCRR 65-3.16 (a) (12) and Mallela, but the trial court barred that evidence under its earlier order.
Appellate Term, Second Department
Dec 3, 2010
2010 NY Slip Op 52122(U)
Provider prevailed
An action finally adjudicated on the merits is no longer pending for consolidation under CPLR 602 (a). The insurer sought to consolidate 82 other assigned no-fault actions brought by the same provider against it or its affiliates and subsidiaries with this action, and requested further relief upon consolidation. The provider established that Civil Court had already granted it summary judgment before the consolidation motion was brought. The Appellate Term, Second Department, affirmed denial of the insurer's motion because no pending action remained with which the others could be consolidated, and expressly passed on no other issue.
Trial court, Second Department
Dec 17, 2010
2010 NY Slip Op 20512
The provider's summary judgment motion was denied pending discovery into intoxication and felony-based coverage exclusions. The Supreme Court, Nassau County, denied both sides summary judgment with leave to renew after discovery, granted the insurer a preliminary conference, and denied a trial stay as premature. Verification requests tolled the denial period, and the insurer timely asserted exclusions under Insurance Law § 5103 (b) (2) or (3) and its policy. Although direct proof of intoxication and causation was absent, an indictment and information concerning the accident showed that evidence supporting the defense might exist. CPLR 3212 (f) permitted disclosure, particularly because some relevant facts lay within the assignor's knowledge and discovery was in its early stages.
Trial court, Second Department
Dec 7, 2010
2010 NY Slip Op 20502
Provider prevailed
⚠ Reversed by A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)
The insurer failed to prove its medical necessity defense because supporting peer reviews were inadmissible or unauthenticated. The Civil Court, Kings County, entered judgment for the provider in both actions after trial. Unsigned reviews could not support the defense under CPLR 2106, even where an author testified. A signed review could not be authenticated because its author was absent. Two other reviews were undated, preventing confirmation that they were the reviews referenced in the denials, despite their author's presence to authenticate signatures. The provider's stipulation to timely denials proper in form did not cure substantive defects, and failure to object before trial did not waive objections. Authority concerning underlying medical records did not dispense with admissibility of the peer reviews themselves.
Trial court, Second Department
Dec 6, 2010
2010 NY Slip Op 52093(U)
The petitioning insurer failed to justify vacating a mandatory arbitration award denying reimbursement on priority-of-payment grounds. After paying a pedestrian struck by its insured while driving a dealership loaner, the insurer sought reimbursement from the loaner's insurer. The arbitrator relied on the loaner agreement's designation of the driver's personal coverage as primary. The Civil Court, Queens County, denied vacatur and confirmed the award, applying the standard that a mandatory award must be supported by evidence and not arbitrary or capricious. The petitioning insurer never produced its policy; the court found reliance on the loaner insurer's policy proper and rejected equating a loaner with a rental, describing the loaner as a temporary substitute ordinarily covered under the insured's policy.
