Appellate Division, Second Department
Aug 16, 2011
2011 NY Slip Op 06253
Insurer prevailed
Severance is inappropriate where common factual and legal issues favor a single trial of an alleged fraudulent-incorporation scheme. The insurer alleged that 12 provider corporations used one physician's license to conceal ownership and control by unlicensed persons. The Appellate Division, Second Department, modified the order, insofar as appealed from, to eliminate sua sponte severance and dismiss the providers' counterclaims under CPLR 3211 (a) (7). Those counterclaims sought medical payments coverage, which is excess over mandatory no-fault coverage under 11 NYCRR 65-1.1, without alleging payments exceeding the $50,000 basic-economic-loss threshold. The insurer prevailed on severance and dismissal, although its separate CPLR 3211 (a) (3) contention that the providers lacked standing was rejected.
Appellate Term, First Department
Aug 31, 2011
2011 NY Slip Op 51634(U)
Insurer prevailed
An insurer need not pay or deny a no-fault claim until it receives the requested verification. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion, and dismissed the provider's claim as premature. Under 11 NYCRR 65-3.8 (b) (3), the insurer established that its initial and follow-up verification letters were timely mailed and received. The provider's failure to respond was undisputed. In opposition, the provider offered only a conclusory denial of receipt of the initial letter, which was insufficient to raise a triable issue under Nassau Ins. Co. v Murray. The outstanding verification therefore supported dismissal in the insurer's favor.
Appellate Term, First Department
Aug 24, 2011
2011 NY Slip Op 51597(U)
Insurer prevailed
The insurer proved mailing of the IME notices and the assignor's nonappearance, and the provider failed to raise a triable issue. The Appellate Term, First Department, reversed denial of the insurer's summary judgment motion, granted the motion, and dismissed the provider's assigned no-fault complaint. The insurer's documentary submissions established mailing to the assignor and the failure to attend. The provider raised no factual issue concerning the reasonableness of the requests or nonappearance. The court applied Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC in sustaining the defense.
Appellate Term, First Department
Aug 18, 2011
2011 NY Slip Op 51573(U)
Provider prevailed
MVAIC's motion for summary judgment based on lack of qualified-person status or no-fault coverage was denied, and the order was affirmed. The Appellate Term, First Department, relied on Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. and Matter of MVAIC v Interboro Med. Care & Diagnostic PC. It stated that MVAIC bore the burden of proving lack of coverage and that its submissions were insufficient.
Appellate Term, First Department
Aug 18, 2011
2011 NY Slip Op 51571(U)
Split result
The provider failed to establish a reasonable justification for late claims, and the transit authority failed to show due consideration of its explanation. The provider sought summary judgment for no-fault benefits, and the transit authority cross-moved to dismiss the complaint. Under 11 NYCRR 65-1.1, the provider's proof did not establish reasonable justification as a matter of law. Under 11 NYCRR 65-3.5 (l), the transit authority had to give due consideration to the explanation offered and failed to establish that it did so. The Appellate Term, First Department, reversed and vacated the provider's judgment, denied its motion, and left intact the denial of the cross motion. The separate appeal from the order was dismissed as subsumed in the judgment appeal.
Appellate Term, Second Department
Aug 16, 2011
2011 NY Slip Op 51606(U)
Insurer prevailed
The insurer's unrebutted peer review established a factual basis and medical rationale for denying the supplies as medically unnecessary. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the provider's complaint. An affidavit established timely mailing of the medical-necessity denials through standard office practices. The affirmed peer review report and reviewing physician's affirmation established lack of medical necessity. The provider submitted no practitioner affidavit meaningfully addressing or rebutting the review's conclusions. A dissent would have affirmed, finding the review conclusory and vague because it did not sufficiently describe the assignor's condition or explain why the equipment was unnecessary.
Appellate Term, Second Department
Aug 16, 2011
2011 NY Slip Op 51603(U)
Insurer prevailed
The insurer established that two claims were premature for outstanding verification and a third lacked medical necessity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider summary judgment on the two premature claims, and granted the insurer's cross motion dismissing the complaint. The insurer proved timely mailing of initial and follow-up verification requests to the provider and prescribing doctor, and nonreceipt of the requested information. The provider did not show verification was supplied before suit, so the 30-day payment period had not begun under 11 NYCRR 65-3.8 (a). For the remaining claim, a timely denial and affirmed IME report established a factual basis and medical rationale for lack of necessity. The provider offered no medical rebuttal.
Appellate Term, Second Department
Aug 10, 2011
2011 NY Slip Op 51551(U)
Split result
The insurer justified financial and tax discovery on provider eligibility, but the provider's remaining discovery responses were sufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, limiting compelled disclosure to bank records, income and payroll tax filings, W-2 or 1099 forms, and a subsequent owner deposition. Detailed licensing concerns under Mallela supported discovery under CPLR 3101 (a); bank records were material and necessary, and special circumstances justified tax disclosure. Additional responses to other demands were unwarranted. The court upheld striking the action from the trial calendar because the readiness certificate misstated completed discovery. Considering the insurer's slightly late motion was within the Civil Court's discretion under CPLR 2004 and 22 NYCRR 208.17 (c).
Appellate Term, Second Department
Aug 5, 2011
2011 NY Slip Op 51541(U)
Insurer prevailed
The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the provider's complaint. The Civil Court had found the denial forms timely under CPLR 3212 (g), but concluded that the peer review did not establish the defense. The appellate court found the affirmed report sufficient to support the reviewing doctor's determination that the services were medically unnecessary. The provider did not rebut that showing or challenge the finding of timely denials. Those circumstances entitled the insurer to judgment.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51528(U)
Insurer prevailed
A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint in the insurer's favor. The insurer did not attach the bill, but the complaint identified the sole bill under CPLR 3013 and was included with the motion as CPLR 3212 (b) required. There was therefore no uncertainty about the claim at issue. The insurer used the denial form to establish that it was sent and the claim denied, rather than to prove service dates, services, or charges. Because that use was not hearsay, a business-record foundation was unnecessary. The provider's remaining contentions lacked merit.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51529(U)
Provider prevailed
An assignor's status as a qualified person under Insurance Law § 5202 (b) does not depend on MVAIC's receipt of a household affidavit. MVAIC acknowledged receiving a sworn notice of intention to make a claim under Insurance Law § 5208 but argued that the missing household affidavit defeated the provider's entitlement to summary judgment. The Appellate Term, Second Department, rejected that argument. Deeming the appeal taken from the ensuing judgment under CPLR 5501 (c), it affirmed the judgment awarding the provider assigned no-fault benefits.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51532(U)
Insurer prevailed
An insurer need not annex or establish a hearsay exception for medical records used in a peer review that assumes their facts are true. 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. The insurer established timely denial and submitted an unrebutted peer review with a factual basis and medical rationale for lack of necessity. The review addressed whether treatment was necessary assuming the records' facts, rather than proving the injuries or treatment described. Following Urban Radiology, P.C. v Tri-State Consumer Ins. Co., no hearsay foundation was required. A separate concurrence questioned the mailing affidavit's sufficiency but joined the result as constrained by precedent.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51530(U)
Insurer prevailed
An insurer may reimburse a licensed acupuncturist under the workers' compensation fee schedule for acupuncture performed by chiropractors. The provider sought additional assigned no-fault benefits, and the insurer cross-moved for summary judgment based on proper reimbursement. The Appellate Term, Second Department, rejected the provider's contention that a later order correcting the award's mathematical error affected the appeal: the judgment remained unamended, and the correction did not alter the liability findings challenged by the insurer. Deeming the appeal taken from the judgment under CPLR 5501 (c), the court reversed the judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51531(U)
Insurer prevailed
The insurer established timely IME notices and denials and both assignors' nonappearance, defeating a condition precedent to coverage. 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. The Civil Court had denied both sides' motions and limited trial to late submission of bills under CPLR 3212 (g). An employee of the IME scheduling company established timely notices through standard office practices, and the scheduled chiropractor established the nonappearances. The insurer also proved timely mailing of denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., those failures to attend warranted dismissal. Remaining appellate contentions lacked merit or did not require determination.
Appellate Term, Second Department
Aug 4, 2011
2011 NY Slip Op 51536(U)
Split result
The provider failed to justify vacating its settlement, but vacatur of the default judgment was not authorized by the settlement or motion. The Appellate Term, Second Department, modified the order by restoring the default judgment and directing entry of satisfaction under CPLR 5021, while affirming denial of settlement vacatur. After a default judgment, the parties signed a settlement and the provider cashed the insurer's payment checks. Under CPLR 2104 and Hallock v State of New York, the signed stipulation was binding absent grounds sufficient to invalidate a contract. The provider showed neither mutual mistake, a qualifying unilateral mistake, nor fraudulent inducement. However, neither the stipulation nor the insurer's motion requested vacatur of the default judgment, so that relief was improper.
Trial court, Second Department
Aug 30, 2011
2011 NY Slip Op 51639(U)
Insurer prevailed
An unvacated default declaratory judgment of no coverage bars the served provider's benefits action under res judicata. The Civil Court, Kings County, granted the insurer leave to amend its answer under CPLR 3025 (b) and dismissed the complaint under CPLR 3211 (a) (5). A Supreme Court default judgment declared no coverage because the loss resulted from a staged accident. The provider had been duly served, failed to answer, and had not moved to vacate that judgment. Following Pomona Medical Diagnostics, P.C. v Metropolitan Casualty Ins. Co., the court applied claim preclusion despite the default. A different coverage determination in the benefits action would impair rights established by the declaratory judgment; authorities concerning collateral estoppel did not defeat res judicata.
