Appellate Division, First Department
Jul 7, 2011
2011 NY Slip Op 05864
Provider prevailed
Fraudulent incorporation is a defense for the no-fault arbitrator to decide, not a ground for judicially barring arbitration. The insurer petitioned to stay arbitration, arguing that the provider's alleged fraudulent incorporation made it ineligible for reimbursement under Mallela and precluded it from demanding arbitration under Insurance Law § 5106 (b) and the policy. The Appellate Division, First Department, rejected that argument because the defense was for the arbitrator. It affirmed the order denying the insurer's petition and granting the provider's cross motion to dismiss the proceeding, permitting arbitration to go forward.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51448(U)
Insurer prevailed
The assignor's failure to provide proof of New York residency defeated the provider's claim for no-fault benefits from MVAIC. The Appellate Term, Second Department, found that the assignor was neither a qualified person under Insurance Law § 5202 (b) nor a covered person under Insurance Law § 5221 (b) (2), leaving a condition precedent unsatisfied. The provider also had to exhaust remedies against the known owner of the vehicle alleged to have struck the assignor. Possible trial preclusion arising from MVAIC's noncompliance with a discovery stipulation was of no consequence. The court reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted MVAIC's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51452(U)
Provider prevailed
An insurer waives dismissal for abandonment under CPLR 3215 (c) by submitting an answer and serving discovery demands. The Appellate Term, Second Department, affirmed denial of the insurer's motion to dismiss the provider's assigned no-fault action. More than a year after defaulting, the insurer served and filed an answer with discovery demands, then an amended answer and dismissal motion about a week later. The majority held that those acts constituted an appearance and waived dismissal for the provider's failure to seek default judgment within one year. A dissent would have dismissed the complaint nunc pro tunc, reasoning that approximately five years of inactivity required dismissal and that the insurer's limited acts did not waive relief.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51453(U)
Provider prevailed
The insurer's summary judgment motion on medical necessity was denied in part because the treating chiropractor's affidavit raised a factual issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the challenged claims pending in the provider's favor. Citing Zuckerman v City of New York, the court stated that the affidavit raised a triable issue against the insurer's prima facie showing.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51455(U)
Insurer prevailed
The provider's default-motion papers failed to establish entitlement to an unconditional judgment under CPLR 3215 (f). The Appellate Term, Second Department, affirmed an order directing the insurer to answer within 30 days and allowing judgment only upon failure to answer. The provider's motion was unopposed, but its complaint was unverified and its affidavit did not establish the affiant's employment by the provider or personal knowledge of the claim's factual basis. Nor did the affidavit establish that the attached documents were admissible under CPLR 4518. Without a verified complaint or an affidavit from a party with personal knowledge supplying the necessary facts, the provider was not entitled to unconditional entry of a default judgment.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51451(U)
Insurer prevailed
The insurer established the assignor's IME nonappearance and prior payment of the remaining amount awarded to the provider. In this action for assigned no-fault benefits, the insurer's affidavits established timely mailing of the IME requests and denials, and the examining doctor's receptionist established the assignor's failure to appear. Under 11 NYCRR 65-1.1, appearance at an IME was a condition precedent to liability, warranting dismissal of the second and third causes of action. The record also showed that the insurer had already timely paid the amount awarded on the first cause of action; the remainder had been dismissed under the workers' compensation fee schedule. The Appellate Term, Second Department, reversed the judgment, denied the provider's motion, and granted the insurer's cross motion for summary judgment in full.
Appellate Term, Second Department
Jul 28, 2011
2011 NY Slip Op 51456(U)
Insurer prevailed
The provider failed to supply the factual proof required for unconditional entry of a default judgment under CPLR 3215 (f). The Appellate Term, Second Department, affirmed an order allowing the insurer 30 days to answer and permitting judgment only if it failed to do so. Although the provider's default motion was unopposed, it supplied neither a verified complaint nor an affidavit from a party with personal knowledge establishing the claim's factual basis. Its affiant did not establish employment by the provider, personal knowledge, or admissibility of the annexed documents under CPLR 4518. The deficient papers therefore did not establish entitlement to the unconditional default judgment the provider sought on appeal.
Appellate Term, Second Department
Jul 27, 2011
2011 NY Slip Op 52452(U)
Insurer prevailed
The provider's action was premature because requested MRI films remained outstanding after timely verification requests. The insurer's litigation examiner established timely mailing of the initial and follow-up verification requests and the provider's failure to supply the films. The provider's opposing papers did not address the requests for the assignor's MRI films or demonstrate that the requested verification had been furnished before suit. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny therefore had not begun. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 27, 2011
2011 NY Slip Op 52453(U)
Split result
The insurer failed to show that discovery into the provider's current corporate status was material and necessary to its defense. The provider was a professional service limited liability company whose sole member's medical license had been suspended. Under Limited Liability Company Law §§ 1209 and 701 (a) (4), the suspension disqualified the member and dissolved the company, but the sole member could wind up its affairs by prosecuting or defending actions. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny corporate-status discovery under CPLR 3101. It otherwise affirmed, leaving denial of the provider's summary judgment motion intact because the provider did not challenge the finding that it had failed to establish prima facie entitlement.
Appellate Term, Second Department
Jul 25, 2011
2011 NY Slip Op 51407(U)
Insurer prevailed
The provider's action was dismissed as abandoned because it sought a default judgment after one year without a reasonable excuse. The insurer failed to timely appear and answer, but the provider waited nearly three years after commencing the action to seek a default judgment. Under CPLR 3215 (c) and CCA 1402, failure to commence default proceedings within one year requires dismissal absent sufficient cause; avoiding dismissal requires a reasonable excuse and a meritorious claim. The provider admitted its delay and offered no reasonable excuse. The Civil Court had no obligation to give advance notice of dismissal on its own initiative. The Appellate Term, Second Department, affirmed denial of the default-judgment motion and dismissal of the complaint.
Appellate Term, Second Department
Jul 25, 2011
2011 NY Slip Op 51408(U)
Insurer prevailed
An insurer may use the chiropractic acupuncture fee schedule to reimburse services performed by a licensed acupuncturist. The provider sought additional assigned no-fault benefits, and the insurer cross-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, reversed the judgment, vacated the underlying order, denied the provider's motion, and granted the insurer's cross motion dismissing the complaint. A later order reducing the award to correct a mathematical error did not affect the appeal because the judgment remained unamended and the liability findings remained unchanged.
Appellate Term, Second Department
Jul 25, 2011
2011 NY Slip Op 51411(U)
Insurer prevailed
Service on a claims administrator's clerk did not establish personal jurisdiction over the insurer. The provider served the summons and complaint on a clerk employed by the insurer's third-party claims administrator, but the record did not show that the clerk qualified to receive service under CPLR 311 (a) (1). Failure to serve process rendered subsequent proceedings null and void, and CPLR 5015 (a) (4) required vacatur of the default judgment once lack of personal jurisdiction was demonstrated. The Appellate Term, Second Department, reversed the order denying relief and granted the insurer's motion to vacate the default judgment and dismiss the complaint.
Appellate Term, Second Department
Jul 8, 2011
2011 NY Slip Op 51316(U)
The insurer's peer reviewer was improperly precluded from testifying because the written report was not in admissible form. The parties stipulated that medical necessity was the sole issue for a nonjury trial in the provider's action for assigned no-fault benefits. The insurer offered the psychologist who prepared the peer review supporting its denial. The witness was prepared to explain the factual basis and medical rationale for the opinion that the services lacked medical necessity and was subject to cross-examination. Those circumstances made preclusion erroneous despite the report's inadmissible form. The Appellate Term, Second Department, reversed the judgment for the provider and remitted the matter to the Civil Court for a new trial.
Appellate Term, Second Department
Jul 8, 2011
2011 NY Slip Op 21243
Insurer prevailed
A provider's prima facie showing on summary judgment does not establish those facts as incontrovertible for trial. After an earlier appeal found a prima facie showing but a triable issue, the providers obtained an order deeming their prima facie facts established under CPLR 3212 (g). The earlier determination addressed only whether the submitted proof warranted pretrial judgment under CPLR 3212 (b); it shifted the burden without foreclosing challenges to any aspect of the providers' case at trial. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branch of the providers' motion seeking to establish those facts for all purposes.
Appellate Term, Second Department
Jul 8, 2011
2011 NY Slip Op 51315(U)
Provider prevailed
The insurer waived any right to dismissal for abandonment under CPLR 3215 (c) by engaging in discovery. After the provider obtained a default order, the insurer sought discovery preclusion and entered a so-ordered stipulation establishing a discovery schedule. The insurer later obtained vacatur of the default judgment but was denied dismissal of the complaint. On appeal, it argued that the provider had failed to take proceedings for entry of judgment within one year after the default order. Its participation in discovery, evidenced by the stipulation, waived any right it may have had to dismissal on that ground. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, leaving the provider's action pending.
Appellate Term, Second Department
Jul 8, 2011
2011 NY Slip Op 51318(U)
Insurer prevailed
The insurer's unrebutted peer reviews established that the medical supplies lacked medical necessity. In the provider's action for assigned no-fault benefits, affirmed peer review reports supplied a factual basis and medical rationale for the doctors' conclusions. The provider did not rebut that showing or dispute the finding under CPLR 3212 (g) that the insurer issued timely denials. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 7, 2011
2011 NY Slip Op 51304(U)
Insurer prevailed
A no-fault claim accrues 30 days after the insurer receives it; a later denial does not postpone accrual. Under Insurance Law § 5106 (a), 11 NYCRR 65-3.8, and CPLR 213 (2), the provider's cause of action accrued on September 28, 2002, and its October 20, 2008 action exceeded the six-year limitations period. The insurer did not have to establish the absence of verification tolling as part of its initial showing. The provider supplied no evidence of timely, proper verification requests raising a factual issue and could not collaterally estop the insurer from asserting limitations. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss under CPLR 3211 (a) (5).
Appellate Term, Second Department
Jul 7, 2011
2011 NY Slip Op 51308(U)
Insurer prevailed
The provider's summary judgment cross motion was premature because discovery remained outstanding. The provider filed a notice of trial and certificate of readiness despite failing to supply discovery required by an earlier order. The certificate erroneously stated that discovery was complete, warranting vacatur of the notice and removal from the trial calendar. The provider had made no attempt in the Civil Court to challenge the demands under CPLR 3103, 3122 (a), or 3133 (a), and therefore had to comply with the discovery direction. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment, striking the matter from the calendar, and requiring written discovery and production of the provider's owners for an examination before trial.
Appellate Term, Second Department
Jul 7, 2011
2011 NY Slip Op 21240
Insurer prevailed
The provider's psychologist's purported affidavit failed CPLR 2309 (b) because it lacked attestation that an oath had been administered. The submission opposing the insurer's summary judgment motion bore a notary's stamp and signature but no caption or attestation that the psychologist was duly sworn or had appeared before the notary. General Construction Law § 36 requires no particular oath form, but CPLR 2309 (b) requires an oath calculated to awaken the conscience and impress the signer's mind. The omissions exceeded a mere defect in form. The Appellate Term, Second Department, affirmed the judgment dismissing the challenged claim in the insurer's favor.
Appellate Term, Second Department
Jul 7, 2011
2011 NY Slip Op 51300(U)
Provider prevailed
The insurer failed to establish timely denial mailing because its affidavit did not prove mailing practices during the relevant period. The provider's physician supplied a sufficient foundation for admission of the billing documents under CPLR 4518, the insurer conceded receipt, and the provider established that its claims were not timely paid or denied. The insurer's litigation manager began employment after the denials allegedly were mailed. The insurer proved neither actual mailing nor its standard mailing practice during the pertinent period, and thus failed to show that its defense was not precluded. The Appellate Term, Second Department, affirmed the judgment entered upon the order granting the provider summary judgment and denying the insurer's cross motion.
Appellate Term, First Department
Jul 6, 2011
2011 NY Slip Op 51259(U)
Provider prevailed
MVAIC could not rely on its own failure to follow up a timely verification request to establish a statute-of-limitations defense. MVAIC timely requested verification but omitted the follow-up required by 11 NYCRR 65-3.6 (b). The provider responded more than a year later, and MVAIC then denied the claim. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion under the three-year limitations period in CPLR 214 (2). The request tolled the payment deadline under 11 NYCRR 65-3.8 (a) (1), and, on this record, the claim accrued when MVAIC issued its denial after receiving the response. The court declined to follow Acupuncture Works, P.C. v MVAIC insofar as it could be read otherwise under these circumstances.
Appellate Term, Second Department
Jul 5, 2011
2011 NY Slip Op 51292(U)
Insurer prevailed
The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial. Under Insurance Law § 5106 (a), the provider needed to prove either failure to pay or deny within 30 days or a timely denial that was conclusory, vague, or without merit as a matter of law. It proved nonpayment but neither the absence of a denial nor a legally insufficient denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion.
Appellate Term, Second Department
Jul 5, 2011
2011 NY Slip Op 51293(U)
Insurer prevailed
The insurer established timely mailing of EUO notices and denials and the provider's failure to appear for the scheduled EUOs. The motion papers demonstrated mailing through the standard office practices of the law firm conducting the EUOs and the insurer's own denial-mailing procedures. Under 11 NYCRR 65-1.1, an assignee's appearance at an EUO upon a proper request was a condition precedent to recovery under the policy. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment on the dismissed claims. The provider's remaining contentions lacked merit or were improperly raised for the first time on appeal.
Trial court, Second Department
Jul 7, 2011
2011 NY Slip Op 21234
Insurer prevailed
Denial-of-claim forms offered at trial to prove billing require a business-record foundation. In three bench trials, the provider's witness explained creation of the bills and their delivery to a mailing service but could not establish how they were mailed. The provider offered the insurer's denials as party admissions showing mailing and receipt. Following Bath Med. Supply, Inc. v Utica Mut. Ins. Co., the court required a business-record foundation for trial admission. Testimony that the witness received the denials did not authenticate them. The Civil Court, Kings County, granted the insurer's directed-verdict motions in all three actions because the provider failed to establish its prima facie case.
Trial court, Second Department
Jul 1, 2011
2011 NY Slip Op 21228
Split result
A professional corporation's sole shareholder's death does not require substitution where the corporation remains in existence. The Civil Court, Kings County, denied the insurer's dismissal motion under CPLR 1021 and the estate administrator's cross motion to replace the provider corporations, but granted unopposed relief lifting stays and consolidating the actions for the motion. The shareholder was not a party, and no dissolution or receivership triggered CPLR 1017. The actions nevertheless could not proceed because nobody could act for the corporations. Under Business Corporation Law § 1511, the administrator, who was not a physician, could vote inherited shares only for asset disposition or dissolution. The court expressly left open whether the administrator could act for dissolved corporations in winding up their affairs.
