Appellate Division, Second Department
May 31, 2011
2011 NY Slip Op 04644
Provider prevailed
An insurer's untimely denial precludes a policy exclusion defense based on the assignor's allegedly intentional self-injury. The hospital established mailing and receipt of its prescribed billing form and the insurer's failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. The insurer acknowledged its late denial but submitted evidence that the assignor intentionally caused injury in an attempted suicide. That evidence did not raise a triable issue because the exclusion defense was precluded. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the providers' motion for summary judgment on the hospital's first cause of action; it did not reach the providers' remaining contention.
Appellate Division, Second Department
May 24, 2011
2011 NY Slip Op 04436
Insurer prevailed
The insurer raised factual issues about timely denial and whether the assignor's injury resulted from driving while intoxicated. The hospital established overdue payment and sought summary judgment, challenging both mailing and errors in the denial's claim amounts. An employee's affidavit describing standard mailing procedures raised a timeliness issue. The amount errors did not invalidate the denial because they created no possibility of confusion or prejudice under the circumstances. The police officer's observations in the accident report were admissible under CPLR 4518 (a) and raised an intoxication issue under Insurance Law § 5103 (b) (2). The Appellate Division, Second Department, affirmed denial of the hospital's motion. A proper denial must specify its grounds and include the information required by 11 NYCRR 65-3.4 (c) (11).
Appellate Division, Second Department
May 17, 2011
2011 NY Slip Op 04219
Provider prevailed
The insurer's denial was fatally defective because it omitted required information and named the assignor as the benefits applicant. The hospital established mailing, receipt and overdue payment through billing forms, its biller's affidavit and certified mail documentation. Even assuming timely mailing, the incomplete denial did not satisfy 11 NYCRR 65-3.4 (c) (11), so the insurer failed to raise a triable issue or establish entitlement to dismissal. The Appellate Division, Second Department, affirmed the judgment entered upon summary judgment for the hospital and denial of the insurer's cross motion. The insurer's contention that the action was premature was raised for the first time on appeal and did not qualify as an unavoidable pure question of law on the record.
Appellate Division, Second Department
May 3, 2011
2011 NY Slip Op 03838
Insurer prevailed
The insurer raised a triable issue as to whether the hospital fully complied with its verification demand. The hospital established mailing and receipt of the necessary billing forms and overdue payment under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). The insurer's opposition nevertheless presented a factual dispute over compliance with verification, and payment or denial was not required until all demanded verification was supplied. The Appellate Division, Second Department, affirmed the order, insofar as appealed from by that hospital, denying summary judgment on the second cause of action. A separate hospital's appeal was dismissed under CPLR 5511 because it was not aggrieved by the portion challenged.
Appellate Term, Second Department
May 26, 2011
2011 NY Slip Op 50989(U)
Insurer prevailed
The provider's failure to demonstrate exhaustion of remedies against the known vehicle owner warranted summary judgment for MVAIC. The provider and its assignor knew the identity of the owner of the vehicle alleged to have struck the assignor. The provider therefore had to exhaust remedies against that owner before seeking relief from MVAIC. The Appellate Term, Second Department, reversed the judgment awarding benefits on one bill, vacated the corresponding grant of summary judgment, and denied that branch of the provider's cross motion. Treating the appeal in part as one from the judgment under CPLR 5501 (c), it also reversed the order, insofar as appealed from and separately reviewed, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
May 26, 2011
2011 NY Slip Op 50990(U)
Insurer prevailed
The insurer raised triable issues concerning medical necessity on one claim and fee-schedule compliance on another. The provider obtained summary judgment for assigned no-fault benefits, but the insurer established timely mailing of its denials through standard office practices and procedures. For the first cause of action, an affirmed peer review supplied a factual basis and medical rationale for the conclusion that the services lacked medical necessity. For the second, the record presented a factual issue whether the provider sought more than the workers' compensation fee schedule allowed. The Appellate Term, Second Department, reversed the judgment, vacated the order, and denied the provider's motion; it did not review the unchallenged determination concerning the provider's prima facie case.
Appellate Term, Second Department
May 24, 2011
2011 NY Slip Op 50984(U)
Insurer prevailed
Providers aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The providers and their assignor knew the identity of the owner of the vehicle alleged to have struck the assignor, but the providers did not demonstrate exhaustion. The Civil Court had denied both MVAIC's motion to dismiss the complaint on summary judgment and the providers' cross motion for summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers' cross motion. Upon searching the record, it also granted MVAIC's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
May 24, 2011
2011 NY Slip Op 50978(U)
Insurer prevailed
The provider's appeal from a conditional discovery order became academic after a subsequent order dismissed the action. In the action for assigned no-fault benefits, the challenged order required bank account information, corporate tax returns, and billing and management agreements, with dismissal for noncompliance. After the Civil Court dismissed the action, the Appellate Term, Second Department, dismissed the appeal as academic, leaving the discovery requirements unreviewed.
Appellate Term, Second Department
May 24, 2011
2011 NY Slip Op 50979(U)
Insurer prevailed
The provider's summary judgment award was reversed on the assignor's EUO nonappearance defense. The Appellate Term, Second Department, vacated the order and denied the motion for the reasons stated in the earlier LDE Med. Servs., P.C. v Encompass Ins., involving the same pertinent facts. The billing affidavit established document admissibility under CPLR 4518; no other issue was reached.
Appellate Term, Second Department
May 23, 2011
2011 NY Slip Op 50948(U)
Insurer prevailed
The insurer established that the assignor misrepresented the state of residence and was ineligible for no-fault benefits under the policy. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted the insurer's summary judgment motion dismissing the complaint, and denied the provider's cross motion. The claims adjuster's affidavit established timely mailing of the denials through standard office practices, preserving the fraudulent-procurement defense. The insurer's affidavits established the residence misrepresentation. Following A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. and Matter of Insurance Co. of N. Am. v Kaplun, the provider stood in the assignor's shoes and could not recover benefits unavailable to the assignor.
Appellate Term, Second Department
May 23, 2011
2011 NY Slip Op 50946(U)
Provider prevailed
The insurer failed to submit admissible proof of IME nonappearance with its cross motion, and proof first offered in reply was improper. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion. Under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., an IME demand sent before receipt of claim forms was valid, contrary to the Civil Court's reasoning. Nevertheless, the insurer's initial papers lacked evidence from anyone with personal knowledge of nonappearance; the doctors' affirmations appeared only in reply. The insurer also failed under CPLR 3212 (f) to show that outstanding discovery was needed to establish a triable issue, so the provider's motion was not premature.
Appellate Term, Second Department
May 23, 2011
2011 NY Slip Op 50949(U)
Insurer prevailed
The insurer's affidavits established timely mailing of IME requests and denials and the assignor's failure to attend the IMEs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint. An employee's affidavit established mailing of the scheduling letters through standard office practices; an affidavit from an employee of the psychologist's office manager established nonappearance; and the insurer's no-fault specialist established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C., IME attendance was a condition precedent to coverage. The insurer properly denied the claims on that ground and was not precluded from asserting it; the court did not reach the remaining appellate contentions.
Appellate Term, Second Department
May 23, 2011
2011 NY Slip Op 50945(U)
Provider prevailed
The insurer's request to adjourn the trial to secure a witness was denied. The Appellate Term, Second Department, affirmed the judgment awarding benefits to the provider after a nonjury trial on medical necessity. It stated that adjournments rest in the trial court's sound discretion and found no improvident exercise of that discretion.
Appellate Term, Second Department
May 12, 2011
2011 NY Slip Op 50867(U)
Provider prevailed
Insurance Law § 5214 does not bar a default judgment against MVAIC when it is the named defendant and has defaulted. A provider sued to recover assigned no-fault benefits, and MVAIC moved under CPLR 5015 to vacate the resulting default judgment. The Appellate Term, Second Department, affirmed the denial of that motion because MVAIC's statutory defense lacked merit. The court expressly found it unnecessary to decide whether MVAIC had demonstrated a reasonable excuse for its default.
Appellate Term, Second Department
May 12, 2011
2011 NY Slip Op 50868(U)
Insurer prevailed
The provider failed to establish that the insurer had neither paid nor denied the claim within the required 30-day period. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. Under Insurance Law § 5106 (a), the majority found the provider's prima facie showing deficient and therefore did not examine the insurer's opposition papers. A dissent would have affirmed, finding proof of supplies, receipt of billing forms, and nonpayment sufficient to shift the burden to the insurer, whose mailing affidavit the dissent found inadequate.
Appellate Term, Second Department
May 10, 2011
2011 NY Slip Op 52090(U)
Provider prevailed
A dismissal for want of prosecution does not bar a new action on res judicata grounds unless it specifies dismissal on the merits. The provider refiled its claims before the earlier action was dismissed on default. Under CPLR 3216 (a), that dismissal did not specify that it was on the merits. The insurer also failed to prove that any claim accrued more than six years before refiling under CPLR 213 (2). Accrual occurs when benefits become overdue under Insurance Law § 5106 (a), and no denials or other accrual evidence were offered. The Appellate Term, Second Department, reversed and denied the insurer's summary judgment motion; a separate concurrence noted the provider also omitted filing dates relevant to its prima facie case and interest.
Trial court, Second Department
May 13, 2011
2011 NY Slip Op 50848(U)
Provider prevailed
Florida law permitted rescission of the policy for a material garaging misrepresentation, leaving MVAIC liable for the provider's claim. In a de novo action under Insurance Law § 5106 (c), MVAIC and the provider sought summary judgment after arbitrators awarded benefits. Applying the grouping-of-contacts analysis, the Supreme Court, Queens County, found Florida's contacts and interests controlling and upheld retroactive rescission under Florida Statutes § 627.409. The provider proved submission of billing forms and overdue payment. MVAIC failed to show timely action on the claims; its further verification request was untimely, and it did not establish lack of MVAIC coverage. The court granted the provider's cross motion, with interest and fees under Insurance Law § 5106 (a), and denied MVAIC's motion as academic.
Trial court, Second Department
May 3, 2011
2011 NY Slip Op 50800(U)
Insurer prevailed
The hospitals failed to establish that their billing documents were business records and were denied summary judgment. The District Court, Nassau County, required hospitals to supply the same business-record foundation as other providers. Their third-party biller's affidavits addressed mailing, but did not establish who prepared the documents or the source of their contents. The insurer's opposition was also deficient: it supplied no admissible proof of actual mailing or standard mailing procedures for the IME-based denial on one claim. On the other claim, the court found the verification request outside the 10-business-day period under 11 NYCRR 65-3.5 (a), with mailing procedures also unproved. Those deficiencies did not cure the hospitals' failure to establish prima facie entitlement to judgment.
