Appellate Division, Second Department
Nov 29, 2011
2011 NY Slip Op 08747
Split result
The insurer's timely denial defeated summary judgment on the provider's first cause of action alleging failure to pay or deny. The provider moved solely on untimeliness, so the denial's merits were not considered. On the third cause of action, the insurer established timely verification requests and payment within 30 days after receiving verification under 11 NYCRR 65-3.5 (b). On the second, the provider proved nonpayment within 30 days after complying with verification requests, and the insurer raised no triable issue. The Appellate Division, Second Department, modified the order, insofar as appealed from, to deny summary judgment on the first and third causes of action and affirmed the award of summary judgment to the provider on the second.
Appellate Division, Second Department
Nov 22, 2011
2011 NY Slip Op 08580
Insurer prevailed
A pre-answer motion to dismiss declaratory claims tests whether a justiciable controversy is pleaded, not entitlement to relief. The insurer sought declarations that acupuncture corporations were ineligible for no-fault reimbursement because they were unlawfully incorporated and because services were performed by independent contractors or other nonemployees. The defendants moved under CPLR 3211 (a) (7) to dismiss those two causes of action. Accepting the allegations as true and affording favorable inferences, the Appellate Division, Second Department, found justiciable controversies sufficient to invoke declaratory jurisdiction under CPLR 3001 and 3017 (b). It affirmed the order, insofar as appealed from, denying dismissal; the ruling addressed pleading sufficiency rather than entitlement to favorable declarations.
Appellate Division, Second Department
Nov 15, 2011
2011 NY Slip Op 08330
Insurer prevailed
The insurer's evidence of a timely denial raised a triable issue defeating the provider's motion based solely on untimeliness. The provider sought summary judgment on the first cause of action under 11 NYCRR 65-3.8 (c), alleging that the insurer failed to pay or deny within 30 days. The insurer's only burden was to raise a factual issue concerning timely payment or denial, which its denial evidence satisfied. The provider's challenge to the evidentiary form of the supporting medical reports was improperly raised for the first time in reply. The Appellate Division, Second Department, affirmed denial of the provider's motion.
Appellate Division, Second Department
Nov 1, 2011
2011 NY Slip Op 07785
Insurer prevailed
An insurer may obtain de novo adjudication when a master arbitrator's award in the provider's favor exceeds $5,000. The insurer invoked Insurance Law § 5106 (c), but Supreme Court denied its summary judgment motion, granted the provider's cross motion and confirmed the award because it was not arbitrary and capricious. Once de novo review was properly invoked, that inquiry became academic. The Appellate Division, Second Department, reversed, denied confirmation as academic and remitted for consideration of the merits of the insurer's motion and the provider's requests for dismissal and judgment on counterclaims. The insurer prevailed on its right to de novo adjudication; the court did not reach its remaining contentions.
Appellate Term, Second Department
Nov 30, 2011
2011 NY Slip Op 52199(U)
The insurer failed to prove that the acupuncture charges exceeded the fee schedule, and the provider failed to establish entitlement to judgment. The insurer proved timely mailing of verification requests and denials but omitted the applicable fee schedule. Although judicial notice was permissible, it supplied neither sufficient information nor notice to the provider under CPLR 4511 (b), so the court declined to take notice. It also supplied insufficient evidence to dismiss the initial-visit claim. The provider failed to establish an untimely, conclusory, vague, or otherwise defective denial. The Appellate Term, Second Department, modified the order to deny the provider's cross motion and affirmed denial of the insurer's motion, leaving both sides without summary judgment.
Appellate Term, Second Department
Nov 30, 2011
2011 NY Slip Op 52197(U)
Insurer prevailed
A defaulting provider may not appeal an order dismissing its complaint entered after it failed to oppose the insurer's motion. The insurer moved under CPLR 3211 (a) (2) to dismiss the assigned no-fault action and obtained a stay pending determination. The parties then stipulated to a new motion schedule and return date. The provider submitted no opposition papers by that date, so the dismissal order was deemed entered on default. The Appellate Term, Second Department, dismissed the provider's appeal because no appeal lay by the defaulting party.
Appellate Term, Second Department
Nov 30, 2011
2011 NY Slip Op 52198(U)
Insurer prevailed
A peer review report is not inadmissible merely because the reviewer considered medical records prepared by other providers. The insurer established timely mailing of its denials and submitted an affirmed report supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider could not challenge the reliability of records it had prepared, and its objections to reliance on other providers' records did not defeat admissibility. It failed to rebut the insurer's showing. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint and denial of the provider's cross motion; a separate partial dissent would have denied the insurer's motion because the mailing affidavit did not establish mailroom procedures.
Appellate Term, Second Department
Nov 17, 2011
2011 NY Slip Op 21419
An insurer need not prove medical records reliable when its expert assumes their contents true in disputing medical necessity. At a nonjury trial limited to the necessity of medical equipment, the Civil Court barred the peer review doctor from discussing the reviewed records and directed a verdict for the provider. The insurer sought to show that the equipment was unnecessary even assuming the records' contents were true, rather than to prove the underlying injuries or delivery of equipment. The doctor therefore should have been permitted to testify about the records and the resulting opinion. The provider could challenge that testimony through impeachment, cross-examination, or rebuttal. The Appellate Term, Second Department, reversed the judgment and remitted for a new trial.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52063(U)
Split result
The provider proved two claims remained unpaid and undenied for 30 days, and the insurer's bare denial of receipt raised no triable issue. The billing clerk's affidavit established admissibility under CPLR 4518 and mailing of those claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the provider summary judgment on them. It affirmed denial on two other claims because the insurer proved timely mailing of denials, and on four claims because the provider failed to establish untimely payment or denial or legally defective denials under Insurance Law § 5106 (a). A separate concurrence questioned the mailing affidavit's sufficiency but followed controlling authority and disagreed with reliance on an authority involving partial payment.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52064(U)
Insurer prevailed
The provider's billing-company affidavit failed to establish a business-records foundation for the claim forms. The provider moved for summary judgment or, alternatively, a finding under CPLR 3212 (g) that its prima facie case was established for all purposes in the action. The third-party billing company's president did not demonstrate personal knowledge of the provider's business practices and procedures sufficient to admit the annexed forms under CPLR 4518. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the branch seeking the prima facie finding, thereby sustaining the insurer's challenge to that ruling.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52074(U)
Insurer prevailed
The insurer's unrebutted sworn peer review report established that the services lacked medical necessity. The provider sought assigned no-fault benefits, and the insurer appealed denial of its motion for summary judgment dismissing the complaint. The report supplied a factual basis and medical rationale for the chiropractor's conclusion that the services were unnecessary. The provider did not rebut that showing or challenge the Civil Court's implicit finding under CPLR 3212 (g) that the insurer timely denied the claim for lack of medical necessity. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52062(U)
Insurer prevailed
An assignor's appearance at a duly scheduled IME is a condition precedent to the insurer's liability under the policy. The insurer's scheduling service established timely mailing of the IME letters through standard office practices, and the examining chiropractor established nonappearance. A claims employee also established timely mailing of the denials after receipt of requested verification. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the insurer properly denied the assigned no-fault claims for failure to satisfy the coverage condition and was not precluded from raising that defense. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52071(U)
Insurer prevailed
The insurer's motion for summary judgment dismissing the complaint for lack of medical necessity was granted and affirmed on appeal. The Appellate Term, Second Department, rejected the provider's sole appellate contention, finding the peer review report sufficient to establish entitlement to judgment under Urban Radiology, P.C. v Tri-State Consumer Ins. Co.
Appellate Term, Second Department
Nov 4, 2011
2011 NY Slip Op 52072(U)
Provider prevailed
The insurer's motion for summary judgment based on lack of medical necessity was denied because the provider raised a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on the treating physician's opposing affidavit, which it found sufficient despite the insurer's prima facie showing.
Appellate Term, First Department
Nov 2, 2011
2011 NY Slip Op 51961(U)
Provider prevailed
The provider's summary judgment award was affirmed because MVAIC offered no competent proof that the assignor was unqualified for benefits. The Appellate Term, First Department, found no triable coverage issue under Englington Med., P.C. v Motor Veh. Acc. Indem. Corp., and MVAIC failed to show that exhaustion was required. The separate order appeal was dismissed as subsumed in the judgment appeal.
Appellate Term, First Department
Nov 2, 2011
2011 NY Slip Op 51959(U)
Insurer prevailed
The insurer established mailing of IME notices and the assignor's nonappearances, warranting dismissal of the provider's claims. In this action for assigned no-fault benefits, the insurer submitted prima facie proof that it mailed the notices to the assignor and the assignor's attorney and that the assignor failed to attend. The provider raised no triable issue concerning either the reasonableness of the requests or the nonappearances. Relying on Unitrin Advantage and Stephen Fogel Psychological, the Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.
Trial court, Second Department
Nov 29, 2011
2011 NY Slip Op 52184(U)
Insurer prevailed
Release and res judicata defenses arising after joinder of issue are not waived by omission from the original answer. The provider sought summary judgment despite a global settlement expressly covering the claim and discontinuing claims with prejudice. It neither mentioned the settlement nor opposed the insurer's cross motion. The Civil Court, Kings County, treated the cross motion as seeking dismissal under CPLR 3211 (a) (5), amended the answer on its own motion to add release and res judicata, and dismissed the complaint. Under CPLR 3025 (b), the provider could not claim prejudice or surprise from its own settlement. The defenses arose after joinder and were not waived under CPLR 3211 (e). The provider's motion was denied as moot.
Trial court, Second Department
Nov 9, 2011
2011 NY Slip Op 21398
Provider prevailed
The provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion. The insurer sought summary judgment based on a sworn peer review report but had neither responded nor objected to demands for records underlying that report. Under CPLR 3212 (f), the provider showed that records exclusively held by the insurer might reveal errors or support an expert rebuttal. The court also found no evidence qualifying the peer reviewer as an expert or establishing the professional reliability of the materials relied upon. The District Court, Nassau County, denied the insurer's motion without prejudice to renewal after discovery and granted the provider's cross motion to compel interrogatory answers and document production.
Trial court, First Department
Nov 3, 2011
2011 NY Slip Op 52142(U)
Provider prevailed
The insurer's proposed medical testimony was excluded because it showed neither HIPAA authorization nor compliance with a Privacy Rule exception. At the bench trial, the parties stipulated to the provider's prima facie case. The insurer maintained that HIPAA did not apply to no-fault litigation and offered no basis for disclosure of the assignor's identifiable medical information. The Civil Court, Bronx County, applied 45 CFR 164.508 and the judicial-proceeding provisions of 45 CFR 164.512 (e) (1), following Matter of Miguel M. Because authorization or compliance with an exception was absent, the court excluded medical-necessity testimony. With no other evidence opposing the stipulated prima facie case, it directed judgment for the provider with statutory interest and fees.
