Appellate Division, Second Department
Feb 22, 2011
2011 NY Slip Op 01458
Provider prevailed
The insurer's defective denial and insufficient mailing proof precluded its intoxication exclusion defense. The hospital established mailing and receipt of its prescribed billing form and failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. One NF-10 omitted several material items of information, while the insurer failed to prove timely mailing of a second NF-10. It therefore neither raised a triable issue nor established entitlement to dismissal. Following Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., the failure to establish timely denial precluded the asserted intoxication exclusion. The Appellate Division, Second Department, reversed, granted the hospital's summary judgment motion and denied the insurer's cross motion.
Appellate Division, First Department
Feb 22, 2011
2011 NY Slip Op 01333
Provider prevailed
An insurer first notified of a no-fault claim must pay benefits despite a priority dispute that belongs in interinsurer arbitration. The insurer denied the dental provider's claim on the ground that another insurer was responsible and characterized the dispute as one of coverage. Under Insurance Law § 5105 (b) and 11 NYCRR 65-3.12 (b), disputes among insurers over payment responsibility require arbitration, while the first insurer notified remains responsible for payment. Under 11 NYCRR 65-4.11 (a) (6), priority or source-of-payment controversies are not coverage questions. The Appellate Division, First Department, affirmed the Appellate Term's order affirming the Civil Court's determination that the primary-insurer issue must be arbitrated.
Appellate Division, Second Department
Feb 8, 2011
2011 NY Slip Op 01008
Provider prevailed
CPLR 5019 (a) cannot be used to reduce a no-fault judgment based on policy exhaustion because that changes substantive rights. After the hospital obtained summary judgment, the insurer sought to reduce the entered judgment based on benefits previously paid to other providers. The lower court granted modification and directed a hearing on the remaining coverage. The Appellate Division, Second Department, reversed and denied the insurer's motion. CPLR 5019 (a) permits correction of technical defects or ministerial errors, but the requested reduction concerned a substantive matter. Although the hospital first raised this procedural objection on appeal, the court reached it as a legal question that could not have been avoided if timely raised; the remaining contentions were not reached.
Appellate Term, First Department
Feb 25, 2011
2011 NY Slip Op 50275(U)
Provider prevailed
The provider's summary judgment motion was granted and MVAIC's cross motion for summary judgment dismissing the complaint was denied. The Appellate Term, First Department, affirmed, citing New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., because the provider made a prima facie showing and MVAIC raised no triable issue concerning the assignor's qualification or compliance with Insurance Law § 5208.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50195(U)
Provider prevailed
The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident. Seeking summary judgment dismissing assigned no-fault claims, the insurer relied on a special investigator's affidavit and a police accident report. The report was not admissible proof, and the investigator's affidavit relied on it in part. Those submissions did not establish the asserted lack of coverage as a matter of law under Central Gen. Hosp. v Chubb Group of Ins. Cos. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50194(U)
Insurer prevailed
EUO scheduling letters need not highlight the time and place in bold or larger type. The insurer sought summary judgment based on the provider's EUO nonappearance or, alternatively, outstanding verification. The Civil Court denied the unopposed motion, finding inadequate notice formatting and insufficient proof of nonappearance. The insurer's affidavits established timely mailing, and the attorney responsible for conducting the EUOs established the provider's failure to attend. Attendance is a condition precedent under 11 NYCRR 65-1.1, and 11 NYCRR 65-3.5 (b) and (e) impose no conspicuous-type requirement. The Appellate Term, Second Department, reversed and granted the insurer's motion dismissing the complaint, reaching no other issue.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50184(U)
Split result
The insurer failed to prove mailing of IME notices, and the providers' billing affidavit addressed claims in another action. The insurer sought summary judgment based on the assignor's failure to attend IMEs. Its affidavits established neither mailing through the scheduling entity's standard office practices nor personal mailing by the affiants, so its motion was properly denied. The providers also failed to establish their prima facie case because their billing supervisor's affidavit concerned different claims. The Appellate Term, Second Department, modified the order to deny the providers' cross motion for summary judgment and otherwise affirmed, leaving both sides' motions denied.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50189(U)
Insurer prevailed
The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal. An affirmed physician's report and sworn chiropractor's reports supplied a factual basis and medical rationale for concluding that the supplies were unnecessary. The provider conceded timely denials. Its opposition contained no health-care practitioner's affidavit meaningfully addressing or rebutting the reviewers' conclusions and therefore raised no triable issue. The Appellate Term, Second Department, reversed the order granting the provider's cross motion and denying the insurer's motion, granted the insurer summary judgment dismissing the complaint, and denied the provider's cross motion.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50188(U)
Provider prevailed
The provider's doctor's affirmation raised a triable issue of medical necessity despite the insurer's sufficient peer reviews. The insurer submitted two admissible peer review reports supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider's opposing affirmation sufficiently demonstrated a factual dispute. The Civil Court had denied both summary judgment motions and limited trial to medical necessity under CPLR 3212 (g). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion to dismiss the complaint because that issue remained for trial.
Appellate Term, Second Department
Feb 14, 2011
2011 NY Slip Op 50193(U)
Provider prevailed
The insurer failed to provide a reasonable excuse for its late answer and was denied vacatur of the default judgment. Under CPLR 5015 (a) (1), the insurer needed both a reasonable excuse and a meritorious defense. The majority found that the asserted clerical error, which put the wrong assignor in the caption, neither produced an answer to this complaint nor explained untimely service. The paralegal's affidavit stated that service occurred almost four months after judgment. The Appellate Term, Second Department, affirmed without reaching the defense. A dissent would have granted vacatur, accepting law office failure and finding a meritorious defense.
Appellate Term, Second Department
Feb 8, 2011
2011 NY Slip Op 21039
Insurer prevailed
⚠ Modified by Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2013 NY Slip Op 08430)
The provider failed to establish its prima facie case because its third-party biller's affidavit lacked a business-record foundation. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion. Although the biller created and mailed the claim forms, it used medical records supplied by the provider. Under CPLR 4518 (a), the affidavit did not show personal knowledge of the provider's recordkeeping practices or meaningful incorporation of and reliance on those records. The provider also supplied no evidence of a business duty to furnish accurate information. The forms therefore did not establish the fact and amount of loss under Insurance Law § 5106 (a); prescribed forms, signatures and fraud warnings did not make them inherently reliable.
