Appellate Division, Second Department
Jan 18, 2011
2011 NY Slip Op 00377
Insurer prevailed
The insurer established a reasonable clerical excuse for its brief default and a potentially meritorious defense. An employee's affidavit explained an oversight in forwarding the summons and complaint to counsel. Applying CPLR 5015 (a) (1), the Appellate Division, Second Department, reversed the order insofar as reviewed, vacated the default judgment and compelled acceptance of the insurer's late answer under CPLR 3012 (d). The brief delay, absence of willfulness or prejudice and preference for resolving actions on the merits supported relief. The appeal concerning contempt and subpoena-quashing motions was dismissed because those motions were held for a hearing rather than decided, making that portion nonappealable as of right under CPLR 5701 (a) (2) (v); the hospital's dismissal motion became academic.
Appellate Division, Second Department
Jan 11, 2011
2011 NY Slip Op 00176
Provider prevailed
MVAIC failed to establish that the assignor's uninsured mini-bike disqualified the assignor from receiving no-fault benefits. The Appellate Division, Second Department, affirmed the denial of MVAIC's summary judgment motion against the provider. Under CPLR 3212 (b), MVAIC bore the initial burden of proving that the vehicle required insurance or was a motorcycle within Insurance Law § 5102 (m). The claim form's description of a mini-bike did not establish its maximum speed, which determined whether it was an exempt class C motorcycle under Vehicle and Traffic Law §§ 121-b and 2265 (3). Traffic summonses were accusations, not proof that insurance was required. The provider's burden never arose, and the court left the coverage-disclaimer contention unaddressed pending a determination of qualified-person status under Insurance Law § 5202 (b) at trial.
Appellate Division, Second Department
Jan 11, 2011
2011 NY Slip Op 00217
Provider prevailed
The insurers' verification letters failed to toll the payment period, and their untimely denial precluded the residence-misrepresentation defense. The hospital proved receipt of its bill on May 15, 2009, and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). Verification letters sent before receipt or more than 10 days afterward did not toll the period under 11 NYCRR 65-3.5. The insurers failed to support their claimed earlier receipt dates with the bill. Their untimely denial precluded the defense that the assignor misrepresented residence when obtaining the policy. The Appellate Division, Second Department, affirmed summary judgment for the hospital on the second cause of action and denial of the insurers' cross motion; their North Carolina choice-of-law argument was unpreserved.
Appellate Division, Second Department
Jan 11, 2011
2011 NY Slip Op 00214
Insurer prevailed
The insurer's follow-up verification requests on the 30th day were effective, and the provider's incomplete compliance made the action premature. Under the circumstances, the requests were not premature merely because they were sent on the 30th day after the initial requests. Following Infinity Health Prods., Ltd. v Eveready Ins. Co., the payment or denial period did not begin while requested verification remained outstanding under 11 NYCRR 65-3.8 (a) (1) and 11 NYCRR 65-3.8 (b) (3). The Appellate Division, Second Department, reversed the Appellate Term's order, insofar as appealed from, and the Civil Court's judgment, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint without prejudice to a new action.
Appellate Division, Second Department
Jan 11, 2011
2011 NY Slip Op 00183
Provider prevailed
MVAIC's motion for summary judgment dismissing the provider's no-fault complaint remained denied on appeal. The Appellate Division, Second Department, affirmed the Appellate Term's order in the provider's action under Insurance Law article 52, relying entirely on the reasons stated in the companion appeal, Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., decided the same day.
Appellate Division, Second Department
Jan 11, 2011
2011 NY Slip Op 00174
Insurer prevailed
The insurer's follow-up verification requests sent on the 30th day after its initial requests were effective under the circumstances. The Appellate Division, Second Department, reversed the Appellate Term's order and the Civil Court's order denying the insurer's summary judgment motion. It granted dismissal of the provider's assigned no-fault claims without prejudice to a new action. The court rejected the characterization of the follow-up requests as premature or ineffective, relying on the companion decision St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., decided the same day.
Appellate Term, Second Department
Jan 28, 2011
2011 NY Slip Op 50315(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to summary judgment because its papers did not demonstrate delivery of the supplies. The billing records did not assert delivery to the assignor. The provider's sole shareholder, officer, and employee described generally delivering supplies either directly to injured persons or through prescribing providers, but did not identify which method was used here or state that delivery occurred. Fair Price Med. Supply Corp. v Travelers Indem. Co. addressed preclusion of a nondelivery defense, not the provider's initial summary judgment burden, and did not alter this result. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion on a different ground.
Appellate Term, Second Department
Jan 28, 2011
2011 NY Slip Op 52442(U)
Provider prevailed
The insurer's amended summary judgment motion was properly rejected because it sought no leave to amend and gave no reason for amendment. While its original motion remained pending through adjournments, the insurer submitted an amended motion without explaining its necessity or seeking withdrawal of the original. The trial court denied the original as defective and refused to entertain the amendment. On appeal, the insurer challenged only that refusal. A party finding a motion defective or insufficient should obtain leave to withdraw or amend it. The Appellate Term, Second Department, found no improvident exercise of discretion and affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Jan 26, 2011
2011 NY Slip Op 50110(U)
Insurer prevailed
An insurer may use the workers' compensation fee schedule for chiropractic acupuncture to reimburse services by a licensed acupuncturist. The provider sued for assigned no-fault benefits, and the insurer moved for summary judgment on the ground that it had properly reimbursed the services. Following AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. and Great Wall Acupuncture v GEICO Gen. Ins. Co., the Appellate Term, Second Department, upheld use of that schedule. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), it affirmed dismissal of the complaint on the insurer's motion.
Appellate Term, Second Department
Jan 18, 2011
2011 NY Slip Op 50079(U)
Insurer prevailed
An insurer does not default at mandatory arbitration merely because the arbitrator excludes evidence offered by participating counsel. After an arbitration award for the provider, the insurer demanded a trial de novo, and the provider moved to strike the demand on the ground that the insurer had defaulted. Under 22 NYCRR 28.12 (a), only a party not in default may demand a trial de novo. Counsel appeared, participated, and offered evidence that, if admissible, would have tended to rebut the provider's case. Exclusion of that evidence did not constitute a default under 22 NYCRR 28.7 (a). The Appellate Term, Second Department, affirmed the denial of the provider's motion.
Appellate Term, Second Department
Jan 18, 2011
2011 NY Slip Op 50080(U)
Insurer prevailed
An insurer does not default at mandatory arbitration merely because its participating attorney offers peer reviews excluded as hearsay. The providers won the arbitration and moved to strike the insurer's subsequent demand for a trial de novo under 22 NYCRR 28.12 (a). Although failure to appear or refusal to participate constitutes default under 22 NYCRR 28.7 (a), the insurer's attorney appeared, participated, and submitted reports that, if admissible, would have tended to rebut the providers' case. Exclusion of the proof did not constitute default. The Appellate Term, Second Department, affirmed the order denying the providers' motion to strike the demand.
Appellate Term, Second Department
Jan 18, 2011
2011 NY Slip Op 50081(U)
Insurer prevailed
An insurer does not default at mandatory arbitration merely because the arbitrator excludes the evidence its participating attorney offers. After the providers obtained an award, the insurer demanded a trial de novo under 22 NYCRR 28.12 (a). The providers moved to strike, arguing that counsel's limited participation and exclusion of documents on hearsay grounds amounted to default. Although nonappearance or refusal to participate constitutes default under 22 NYCRR 28.7 (a), counsel appeared, participated, and offered evidence that, if admissible, would have tended to rebut the providers' case. The Appellate Term, Second Department, affirmed denial of the providers' motion to strike the demand.
Appellate Term, First Department
Jan 14, 2011
2011 NY Slip Op 50040(U)
Split result
The insurer proved a fee-schedule defense to one provider's claims but failed to establish timely denial of another provider's claim. The Appellate Term, First Department, modified the order, insofar as appealed from, to dismiss the medical services provider's claims for the difference between its charges and payments under the Workers' Compensation Medical Fee Schedule. The claims examiner's affidavit and fee-schedule excerpts established excessive charges, and the provider raised no triable issue concerning interpretation or calculation. The court affirmed denial of summary judgment against the diagnostic provider on medical necessity because the insurer failed to establish denial within 30 days or tolling through a proper verification request. The diagnostic provider's reply affirmation could not establish its prima facie entitlement to summary judgment.
Appellate Term, First Department
Jan 14, 2011
2011 NY Slip Op 50042(U)
Provider prevailed
MVAIC's uncertified insurance-activity printout did not establish that the assignor was ineligible for no-fault benefits. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion, on grounds different from those used by the Civil Court. MVAIC relied on the printout to challenge the assignor's status as a qualified person under Insurance Law § 5221 (b). The printout was inadmissible hearsay and, independently, did not establish insurance coverage in effect when the accident occurred. MVAIC's submissions also failed to establish as a matter of law that the assignor had not complied with the notice-of-claim requirements of Insurance Law § 5208.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 50036(U)
Insurer prevailed
The insurer did not default at mandatory arbitration because its attorney participated by attempting to refute the providers' case. The Appellate Term, Second Department, affirmed denial of the providers' motion to strike the insurer's demand for a trial de novo after an arbitration award in their favor. Under 22 NYCRR 28.12 (a), only a party not in default may demand a new trial. Although failure to appear or counsel's refusal to participate can constitute a default under 22 NYCRR 28.7 (a), counsel appeared here and contested the claims without presenting witnesses. That participation preserved the insurer's right to a trial de novo.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 21010
Insurer prevailed
A psychologist may conduct IMEs of assignors who received psychological treatment under the mandatory no-fault endorsement. The provider challenged the insurer's summary judgment motion on the ground that 11 NYCRR 65-1.1 permitted examinations only by physicians. Timely mailing of the IME requests and the assignors' nonappearances were uncontested. Reading 11 NYCRR part 65 as a whole and according great deference to an Insurance Department opinion, the Appellate Term, Second Department, rejected that restriction. The psychologist could properly conduct the examinations, and the assignors' failures to appear breached a condition precedent to coverage. The court affirmed summary judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 50026(U)
Insurer prevailed
The insurer's specific licensing concerns established special circumstances warranting disclosure of the provider's tax records. In an assigned no-fault benefits action, the insurer cross-moved under CPLR 3126 to dismiss for discovery noncompliance or compel disclosure. Its papers gave detailed and specific reasons to believe the provider failed applicable licensing requirements under 11 NYCRR 65-3.16 (a) (12) and Mallela. Those reasons warranted disclosure under CPLR 3101. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling corporate tax returns and professional employees' tax records and providing for dismissal if the provider failed to produce them.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 50033(U)
Insurer prevailed
⚠ Reversed by Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 02390)
The insurer established that unanswered, timely verification requests tolled its time to pay or deny the hospital's claim. Its claims examiner's affidavit proved timely mailing of the initial and follow-up requests under standard office procedures. The hospital argued that the initial request was a nullity because it preceded receipt of the bill. The insurer had already received a UB-04 form specifying the treatment, however, and that form was the functional equivalent of an NF-5 under 11 NYCRR 65-3.5 (a) and 11 NYCRR 65-3.5 (f). The hospital did not deny receiving the requests or assert full compliance. The Appellate Term, Second Department, reversed, granted the insurer summary judgment dismissing that hospital's complaint as premature, and denied the hospital's cross motion.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 50028(U)
Insurer prevailed
A provider must exhaust remedies against the owner of the vehicle carrying the assignor before seeking no-fault benefits from MVAIC. The Appellate Term, Second Department, reversed the denial of MVAIC's summary judgment motion and dismissed the complaint. MVAIC asserted that the assignor had not supplied proof that the vehicle in which the assignor was a passenger was uninsured. Following Hauswirth v American Home Assur. Co. and Complete Med. Servs. of NY, P.C. v MVAIC, the court concluded that the provider's claim was premature until remedies against the vehicle's owner were exhausted.
Appellate Term, Second Department
Jan 10, 2011
2011 NY Slip Op 21012
Insurer prevailed
An insurer that timely pays a no-fault claim may seek recovery when it later discovers that the claim was fraudulent. After paying an equipment provider within the 30-day claim determination period, the insurer concluded from the assignor's EUO that the billed equipment had never been supplied and sued for unjust enrichment. The District Court denied default judgment because the insurer had not timely denied the claim. The Appellate Term, Second Department, reversed, reinstated the complaint and granted the insurer's motion. The preclusion rule under Insurance Law § 5106 did not bar recovery of timely paid benefits upon later discovery of fraud, and the insurer satisfied CPLR 3215 (f) and (g) (4) (i).
Trial court, Second Department
Jan 27, 2011
2011 NY Slip Op 50159(U)
Provider prevailed
The insurer failed to prove lack of medical necessity because its peer review and expert testimony were unreliable. The Civil Court, Richmond County, entered judgment for the provider after trial on a cervical MRI claim. The parties stipulated to billing, timely denial, and admission of the peer review, but not the underlying records. The reviewer failed to identify generally accepted medical practice or explain how the referral departed from it, offering unsupported conclusions instead. The court also questioned the completeness of records supplied through a third-party vendor and, absent a stipulation, required their authenticated admission, discussing CPLR 4518 (c), to permit effective cross-examination and assessment of reliability.
Trial court, Second Department
Jan 3, 2011
2011 NY Slip Op 21023
The provider's no-fault action was stayed pending vacatur of a default declaratory judgment finding no coverage. The insurer sought dismissal under CPLR 3211 (a) (5) based on a judgment declaring that it owed no defense or indemnification for an allegedly staged or intentional incident. The Civil Court, Kings County, concluded that controlling precedent barred collateral estoppel because the coverage issue had not been actually litigated. Nevertheless, the default judgment remained presumptively valid and enforceable. Exercising discretion under CPLR 2201, the court stayed the action indefinitely to allow the provider to seek vacatur in Supreme Court, without prejudice to the insurer renewing its dismissal motion if vacatur proved unsuccessful.
