Appellate Division, First Department
Dec 13, 2011
2011 NY Slip Op 08969
Provider prevailed
⚠ Not followed by Saddle Brook Surgicenter, LLC v All State Ins. Co. (2015 NY Slip Op 25099)
An insurer cannot avoid preclusion of a fee-schedule defense by treating excessive fees as a lack of coverage. The Appellate Division, First Department, affirmed dismissal of the insurer's complaint for failure to state a claim and denial of its cross motion for partial summary judgment. Under Insurance Law § 5106 and 11 NYCRR 65-3.8 (c), an untimely or otherwise defective denial precludes the challenge. The narrow lack-of-coverage exception concerns injuries that do not arise from an insured incident. Insurance Law § 5108's prohibition on fees exceeding the fee schedule did not justify expanding that exception and weakening preclusion.
Appellate Term, Second Department
Dec 29, 2011
2011 NY Slip Op 21480
Split result
The insurer proved lack of medical necessity for certain acupuncture services but failed to establish late submission or excessive fees. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing the September 10 claim's portion for services from August 29 through September 6, 2007. The sworn IME report established that further treatment was unnecessary, and the treating acupuncturist's affidavit did not rebut it. Denial of summary judgment on the other challenged claims was affirmed: conflicting mailing evidence raised a factual issue under the 45-day submission requirement of 11 NYCRR 65-1.1, and merely alleging a fee-schedule review did not establish overcharges. A partial dissent favored remittal on fee-schedule judicial notice under CPLR 4511 (a).
Appellate Term, First Department
Dec 29, 2011
2011 NY Slip Op 52347(U)
Insurer prevailed
MVAIC established that the assignor failed to report a hit-and-run accident within 24 hours, and the provider offered no reasonable excuse. The provider sought assigned no-fault benefits for injuries allegedly sustained in the accident. Insurance Law § 5208 (a) (2) (A) required notice to a police, peace, or judicial officer within 24 hours. In opposition, the provider neither disputed noncompliance nor offered an excuse under Insurance Law § 5208 (a) (2) (B). The Appellate Term, First Department, reversed the order, granted MVAIC's summary judgment motion, and dismissed the complaint.
Appellate Term, First Department
Dec 28, 2011
2011 NY Slip Op 52343(U)
Insurer prevailed
The insurer established mailing of IME notices and the assignor's nonappearance, and the provider raised no triable issue. The Appellate Term, First Department, reversed denial of the insurer's summary judgment motion and dismissed the complaint for assigned no-fault benefits. The insurer's submissions established its prima facie entitlement to judgment. The provider's opposition raised no factual issue concerning either the reasonableness of the IME requests or the assignor's failure to attend the examinations.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52382(U)
Split result
A follow-up EUO request is not premature when sent within 10 days after failure to appear for the initial scheduled examination. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment cross motion, while affirming denial of the insurer's motion to compel depositions concerning precluded treatment and billing defenses. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), the insurer established timely EUO requests, two nonappearances, and timely denials. In these circumstances, the EUO toll also covered later claims from the same provider for the same assignor received before the second nonappearance. A claim submitted afterward was denied within 30 days. The EUO defense raised triable issues as to all claims; the insurer had not sought summary judgment.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52371(U)
Insurer prevailed
The insurer raised a triable workers' compensation eligibility issue requiring initial resolution by the Workers' Compensation Board. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted the insurer's summary judgment cross motion for determination after final Board resolution. Admissible evidence raised a question whether the assignor was acting as an employee when the accident occurred. Following O'Rourke v Long, the Board had to decide that issue first under the Workers' Compensation Law. The provider was required to file proof of a Board application within 90 days of the appellate decision; otherwise, Civil Court was directed to dismiss the complaint unless the provider showed good cause.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52384(U)
Split result
The provider obtained summary judgment on two untimely denied claims, but timely EUO requests and denials defeated judgment on five others. The insurer's delay letter did not toll the 30-day period for claims received December 16 and 29, 2006. For the remaining five claims, the insurer proved timely EUO notices under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.8 (j), timely follow-up, nonappearances, and timely denials, raising a triable issue. The court relied on companion appeal No. 2009-2201 K C, decided the same day, regarding follow-up timing. The Appellate Term, Second Department, modified the order to deny summary judgment on those five claims and otherwise affirmed, including denial of depositions concerning precluded treatment and billing defenses.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52386(U)
Insurer prevailed
The providers' failure to comply with a conditional discovery stipulation precluded proof of their claims and required dismissal. They agreed to serve verified discovery responses within 60 days or be precluded from offering evidence at trial. Their opposition to the insurer's summary judgment motion reported belated service but offered no excuse. A conditional so-ordered stipulation becomes absolute upon failure to comply sufficiently and timely; avoiding its effect requires a reasonable excuse and a meritorious cause of action. The providers failed to meet that burden. Although Civil Court relied on a change of attorneys, the opposing affirmation mentioned no such change or explanation. The Appellate Term, Second Department, reversed and granted the insurer's motion because preclusion prevented proof of a prima facie case.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52373(U)
Insurer prevailed
The insurer's peer review and IME reports established lack of medical necessity, and the provider's medical affidavit failed to rebut them. 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. Both affirmed reports supplied a factual basis and medical rationale for finding the services unnecessary. The provider's doctor did not meaningfully address either report's conclusions. Civil Court had identified medical necessity as the sole trial issue, and the provider did not challenge its finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52368(U)
Insurer prevailed
The provider's claim against MVAIC failed because it did not demonstrate exhaustion of remedies against the known vehicle owner. The provider and assignor knew the owner of the vehicle in which the assignor was a passenger. Under Hauswirth v American Home Assur. Co., the provider had to exhaust remedies against that owner before seeking MVAIC benefits. After vacating a default order granting MVAIC summary judgment, the trial court denied the underlying motion and awarded the provider judgment after trial. The Appellate Term, Second Department, reversed the judgment, vacated the denial, and granted MVAIC summary judgment. Failure to prove mailing of verification requests did not justify denial under these circumstances; the court reached no other issue.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52363(U)
Insurer prevailed
The self-insurer established untimely accident notice and absence of written proof excusing noncompliance with the applicable 90-day limit. For the 2001 accident, former 11 NYCRR 65.11 (m) (2) required written notice within 90 days unless specific circumstances beyond the injured person's control made compliance impossible. The self-insurer received the provider's claim forms months after the accident; absence of timely notice or the required written excuse was uncontroverted. The regulation then applicable did not require denial language explaining that late notice could be excused, unlike 11 NYCRR 65-1.1. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the self-insurer summary judgment dismissing the complaint upon reargument; other contentions were unpreserved or lacked merit.
Appellate Term, First Department
Dec 23, 2011
2011 NY Slip Op 52326(U)
Split result
The provider's undisputed failure to answer a timely, proper verification request warranted dismissal of one claim. The Appellate Term, First Department, modified the order to grant the insurer summary judgment dismissing that claim and otherwise affirmed denial of the motion. Under 11 NYCRR 65-3.8 (b) (3), the unanswered request supported dismissal of the claim to which it related. The remaining claims could not be summarily resolved because triable issues existed concerning the insurer's verification and fraud defenses.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52362(U)
Split result
The insurer's motion to compel supplemental discovery was premature because the provider had no opportunity to respond to the new demands. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny that branch of the motion, while affirming vacatur of the notice of trial. The certificate of readiness incorrectly stated that discovery was complete. Although the insurer gave detailed reasons to question the provider's licensing eligibility, its original demands did not seek documents concerning that defense. Supplemental demands for corporate, management, lease, and employment records were first annexed to the motion. Under CPLR 3120 (2) and 3124, compelling responses at that point was premature.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52364(U)
Provider prevailed
The insurer's fee-schedule motion relied on a ground absent from its denials, and the provider raised a medical-necessity issue on other claims. The Appellate Term, Second Department, affirmed denial of partial summary judgment on grounds different from Civil Court's. For two claims, the denials invoked concurrent care under General Ground Rule 6 of the workers' compensation fee schedule, while the motion asserted excessive charges. The denials did not identify the motion's ground with the required specificity. For the remaining claims, the insurer's acupuncturist supplied an IME report and affidavit showing that further treatment was unnecessary, but the provider's acupuncturist submitted an affidavit sufficient to raise a triable issue concerning medical necessity.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52365(U)
Insurer prevailed
The insurer established that it received no written accident notice, and the provider showed neither timely notice nor reasonable justification. The Appellate Term, Second Department, reversed denial of the insurer's summary judgment motion and dismissed the complaint. Under 11 NYCRR 65-1.1 and 65-3.3 (e), the insurer proved timely denials advising that reasonable justification could excuse late notice. Following New York & Presbyt. Hosp. v Country Wide Ins. Co., compliance with the policy's notice requirement was a condition precedent to coverage. The provider raised no triable issue. The parties agreed that no HIPAA authorization or notification was required, eliminating Civil Court's stated basis for denying the motion without prejudice.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52367(U)
Insurer prevailed
The insurer established lack of medical necessity through an affirmed peer review report, and the provider submitted no medical rebuttal. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. The claims examiner's affidavit established timely denial, and the peer review supplied a factual basis and medical rationale for finding the services unnecessary. Because the record contained no affidavit from a health-care practitioner rebutting that conclusion, the insurer was entitled to summary judgment.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52370(U)
Insurer prevailed
The insurer established fee-schedule payment for earlier acupuncture services, and the provider's medical-necessity argument was unpreserved. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after summary judgment for the insurer and denial of the provider's cross motion. For services billed under codes 97810 and 97811, the insurer demonstrated full payment using the workers' compensation fee schedule for chiropractic acupuncture, following Great Wall Acupuncture, P.C. v Geico Ins. Co.; the provider raised no triable issue. For later services, a sworn IME report established lack of medical necessity. The provider's contention that medical necessity presented a factual issue was raised for the first time on appeal and was not considered.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52372(U)
Insurer prevailed
The insurer's sworn peer review reports established lack of medical necessity for supplies, and the provider failed to rebut their conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. Three reports from a chiropractor supplied a factual basis and medical rationale for finding the supplies unnecessary. The provider's opposing medical affirmation did not meaningfully address those conclusions. Civil Court had designated medical necessity as the sole issue for trial, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52374(U)
Provider prevailed
An order granting a motion without written opposition is entered on default and is not appealable, even if the motion was orally argued. The insurer submitted no written opposition to the provider's summary judgment motion, which Civil Court granted. Under CPLR 5501 (c), the appeal from that order was deemed taken from the ensuing judgment. The Appellate Term, Second Department, dismissed the appeal because the judgment rested on a default order. Although Civil Court later denied vacatur on the ground that there had been no default, the insurer's remedy was reargument of, or an appeal from, that denial.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52375(U)
Split result
The insurer obtained dismissal on fee-schedule grounds except for one claim whose denial it failed to prove was timely mailed. The Appellate Term, Second Department, modified the order to deny summary judgment dismissing the October 4, 2005 claim and affirmed dismissal of the remaining claims. The insurer established timely denials of those remaining claims and full payment of the amounts permitted by the workers' compensation fee schedule, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. Its litigation representative's affidavit did not establish timely mailing of the denial partially paying and partially denying the October 4 claim, so summary judgment on that claim was unavailable.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52376(U)
Insurer prevailed
The provider's proof of nonpayment did not establish summary judgment entitlement without a showing that the denials were untimely or defective. The Appellate Term, Second Department, affirmed denial of the provider's motion on a different ground from Civil Court. The provider failed to show that the claims were not denied within 30 days or that the denials were conclusory, vague, or without merit as a matter of law. The majority therefore did not consider the insurer's opposition papers. A dissent would have granted the motion, finding the provider's showing sufficient and the insurer's affidavit inadequate to establish timely mailing of the denials.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52377(U)
Split result
The insurer established full payment under the chiropractic acupuncture fee schedule except for the initial visit claim. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing claims billed under CPT code 97813, while preserving the provider's summary judgment on the initial visit billed under CPT code 99204. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., the insurer demonstrated that its payments for the licensed acupuncturist's services complied with the workers' compensation fee schedule for chiropractors. The insurer offered no evidence or argument warranting dismissal of the initial visit claim and did not challenge the provider's prima facie showing on appeal.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52378(U)
Insurer prevailed
The insurer established lack of medical necessity through a supported peer review report that the provider failed to rebut. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the provider's third cause of action for assigned no-fault benefits. The insurer's affirmed peer review report supplied a factual basis and medical rationale for finding the services unnecessary. The provider failed to submit an affidavit from a health-care practitioner meaningfully addressing or rebutting the report's conclusions and therefore raised no triable issue of fact.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52379(U)
Insurer prevailed
The provider failed to establish its prima facie case because it did not show an untimely or legally insufficient denial. In this action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's summary judgment motion. The provider did not establish that the bill was untimely denied or that the denial was conclusory, vague, or without merit as a matter of law. The court declined the insurer's request to search the record and dismiss the complaint.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52383(U)
Provider prevailed
The insurer's EUO defense was precluded because its earlier denial preceded these claims and mailing of later denials was unproved. The court relied on companion appeal No. 2009-2201 K C, decided the same day, regarding proper EUO requests, nonappearances, and denial within 30 days. However, that denial was ineffective for claims submitted afterward. Later denial forms appeared timely, but the insurer offered no mailing evidence. Failure to prove timely denial precluded the EUO condition-precedent defense. Depositions seeking information about treatment and billing practices also concerned precluded defenses. The Appellate Term, Second Department, affirmed denial of the insurer's discovery motion and summary judgment for the provider, leaving its prima facie showing under Insurance Law § 5106 (a) unreviewed because the insurer did not challenge it.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52388(U)
Insurer prevailed
The insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable issue. An affidavit from the insurer's claims-division employee demonstrated timely denial on that ground. Contrary to the District Court's conclusion, the peer review supplied a sufficient medical rationale and factual basis to establish the insurer's prima facie entitlement to dismissal and shift the burden to the provider. The provider submitted no medical evidence sufficient to rebut that showing. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Dec 23, 2011
2011 NY Slip Op 52392(U)
The vehicle owner's assertion that the owner was not driving failed to establish a meritorious defense supporting default vacatur. The subrogated insurer sought recovery after paying uninsured motorist and no-fault benefits arising from an allegedly negligent collision. The alleged owner defaulted by failing to appear at trial. CPLR 5015 (a) (1) required both a reasonable excuse and a meritorious defense. Under Vehicle and Traffic Law § 388, the owner offered no evidence rebutting the presumption of permissive use. The Appellate Term, Second Department, reversed and denied the owner's motion to vacate the default judgment against the owner, without reaching whether the default was reasonably excused.
Appellate Term, Second Department
Dec 21, 2011
2011 NY Slip Op 52354(U)
Insurer prevailed
The provider's failure to comply with a conditional discovery order supported dismissal of its no-fault complaint. The Appellate Term, Second Department, affirmed the judgment entered after the insurer submitted an affidavit of noncompliance. Following repeated discovery orders, the conditional order required production of management, lease, and billing agreements within 14 days and a doctor's deposition within 45 days thereafter. The provider's appellate assertion that the agreements did not exist or were outside its possession had not been raised in Civil Court. Its discovery responses were incomplete and never clearly stated that no such agreements existed. The remaining contentions lacked merit or were unpreserved.
Appellate Term, Second Department
Dec 21, 2011
2011 NY Slip Op 52355(U)
Insurer prevailed
The insurer's unrebutted peer review report established lack of medical necessity for the supplies at issue. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. The affirmed report supplied a factual basis and medical rationale for the doctor's conclusion that the supplies were unnecessary. Civil Court had identified medical necessity as the sole issue for trial after finding timely denials, and the provider did not challenge its finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Dec 21, 2011
2011 NY Slip Op 52358(U)
Insurer prevailed
The provider's affidavit describing alternative delivery practices did not establish that the supplies were delivered to the assignor. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion for failure to establish a prima facie case. The affiant described a general practice of delivering supplies either directly to an eligible injured person or to the prescribing health-care provider for later delivery. The affidavit did not specify which method, if either, was used for the supplies at issue and therefore failed to establish delivery in this case.
Appellate Term, Second Department
Dec 21, 2011
2011 NY Slip Op 52359(U)
Insurer prevailed
The insurer's sworn statements raised a triable issue whether the alleged injuries arose from an insured incident. The Appellate Term, Second Department, reversed the order granting the provider summary judgment and denied its motion for assigned no-fault benefits. Contrary to the insurer's challenges to the provider's prima facie showing, the provider proved submission of bills setting forth the fact and amount of the loss. Nevertheless, the insurer's opposition was sufficient under Central Gen. Hosp. v Chubb Group of Ins. Cos. to raise a factual coverage issue and defeat summary judgment.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52299(U)
Insurer prevailed
The insurer's peer review was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint. The insurer established timely denial and submitted an affirmed peer review supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider submitted no medical affirmation rebutting those conclusions. Its objection to the electronic stamped signature did not render the report inadmissible on this record, leaving no triable issue concerning medical necessity.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52300(U)
An insurer's substitute medical expert may testify on medical necessity, limited to the denial grounds in the original peer review report. The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and remitted for a new trial. Civil Court had effectively precluded the insurer's expert and directed a verdict for the provider. The expert should have been permitted to offer an opinion on the supplies' medical necessity despite not having authored the peer review. The earlier order denying the provider summary judgment made no explicit or implicit finding under CPLR 3212 (g) establishing facts for all purposes, so the provider must introduce evidence establishing its case at the new trial.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52295(U)
Split result
A provider that fails to timely challenge discovery demands must respond except as to privileged or palpably improper matters. The Appellate Term, Second Department, modified the order, insofar as appealed from, to limit compelled production to the period specified in the interrogatories, otherwise affirming. Discovery concerning precluded defenses is palpably improper, but licensing ineligibility under Mallela is not precludable, and the provider did not show that the demands concerned precluded defenses. The compelled management agreements, leases, and landlord information were limited to January 1, 2002 through May 2, 2005. The challenge to vacatur of the notice of trial was unpreserved; alternatively, vacatur was proper under 22 NYCRR 208.17 (c) because the notice incorrectly stated that discovery was complete.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52288(U)
Provider prevailed
The insurer failed to establish timely mailing of its denials asserting that the provider's fees exceeded the workers' compensation fee schedule. The provider appealed the grant of summary judgment dismissing its assigned no-fault claims. The insurer's claims representative established neither actual timely mailing nor timely mailing under standard office practices and procedures sufficient to raise a presumption of mailing. That deficiency required denial of the insurer's motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment, expressly declining to reach any other issue.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52289(U)
Insurer prevailed
A peer review report is not inadmissible merely because the insurer omits the underlying medical records considered by the reviewer. The insurer moved for summary judgment dismissing assigned no-fault claims for equipment, and the provider cross-moved for summary judgment. The insurer's litigation representative established timely mailing of the medical-necessity denials through standard office practices and procedures. Its affirmed peer review report supplied a factual basis and medical rationale establishing lack of medical necessity. The provider failed to rebut that showing, and its objection based on the omitted records did not defeat the motion. The Appellate Term, Second Department, affirmed the order granting the insurer's motion and denying the provider's cross motion.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52290(U)
Insurer prevailed
The insurer's unrebutted peer review report established that the supplies lacked medical necessity. The provider moved for summary judgment on its assigned no-fault claims, and the insurer cross-moved to dismiss the complaint. The Civil Court found that the provider established its prima facie case and the insurer timely denied the claims, but left medical necessity for trial. The affirmed peer review report supplied a factual basis and medical rationale for the doctor's conclusion. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52291(U)
Split result
The provider failed to raise a factual issue about the reasonableness of scheduling the IMEs that its assignor missed. The Civil Court granted the insurer summary judgment dismissing all claims for assigned no-fault benefits based on the assignor's nonappearance. The Appellate Term, Second Department, upheld dismissal of the claims denied on that ground. For two remaining claims, the insurer conceded that the ground relied on by the Civil Court did not support dismissal and requested consideration of the grounds in its motion papers. The appellate court modified the order, insofar as appealed from, by striking summary judgment on those two claims and remitted them for a new determination because the Civil Court apparently had not considered the insurer's asserted grounds.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52292(U)
Insurer prevailed
The insurer's peer review reports established that the supplies lacked medical necessity, and the provider did not rebut that showing. In this action for assigned no-fault benefits, the insurer appealed the denial of summary judgment dismissing the first through fourth causes of action. The affirmed reports supplied a factual basis and medical rationale for the reviewing doctor's conclusions. The provider also did not challenge the Civil Court's finding that the insurer was otherwise entitled to judgment. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing those causes of action.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52293(U)
Insurer prevailed
A filed, binding stipulation of discontinuance terminates the action, requiring a plenary action to enforce a later settlement. The Appellate Term, Second Department, affirmed denial of the provider's motion for leave to enter judgment on grounds different from Civil Court's. The parties had executed settlement and discontinuance stipulations, and later negotiated a second settlement. Before the provider sought judgment on the second settlement, the insurer filed the discontinuance with prejudice. Under CPLR 2104 and Teitelbaum Holdings v Gold, enforcement relief was no longer available by motion in the terminated action. The court passed on no other issue.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52294(U)
Insurer prevailed
The provider's motion to vacate an unopposed summary judgment order was denied for failure to demonstrate a reasonable excuse. The Appellate Term, Second Department, affirmed, finding no improvident exercise of discretion under CPLR 5015 (a) (1) because the provider failed to show a reasonable excuse for not submitting written opposition to the insurer's motion.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52297(U)
Split result
The provider failed to establish entitlement to summary judgment, while the insurer lacked admissible proof of the assignor's IME nonappearances. The Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and left denial of the insurer's cross motion intact. Under Insurance Law § 5106 (a), proof of nonpayment did not establish that the denial of one claim was conclusory, vague, or meritless. For the other claim, the insurer established tolling and timely denial for IME nonappearances under 11 NYCRR 65-3.5 (b) and 65-3.8 (j), raising a triable issue. The insurer nevertheless failed to prove nonappearances through admissible evidence from someone with personal knowledge and thus could not obtain dismissal.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52298(U)
Provider prevailed
The insurer admitted mailing its denial after 30 days and failed to establish a verification toll, defeating summary judgment. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the portion of the order granting the insurer summary judgment, and denied its motion. Although the provider first challenged timeliness on appeal, the claims examiner's affidavit admitted mailing the denial more than 30 days after receipt of the claims. The court considered the argument because it presented a legal issue on the face of the record that could not have been avoided if raised earlier. The insurer's papers did not establish timely mailing of verification requests and therefore did not establish tolling.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52301(U)
Insurer prevailed
The insurer's three affirmed peer review reports established lack of medical necessity, and the provider did not rebut that showing. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment cross motion dismissing the complaint. Each report supplied a factual basis and medical rationale for finding the services unnecessary. Civil Court had identified medical necessity as the sole trial issue after finding timely denial. The provider did not challenge the finding that the insurer was otherwise entitled to judgment.
Appellate Term, Second Department
Dec 19, 2011
2011 NY Slip Op 52303(U)
Split result
The provider failed to establish admissible proof of services, and the insurer failed to establish that the assignor was ineligible for coverage. The Appellate Term, Second Department, modified the order to deny the provider's summary judgment motion while affirming denial of the insurer's cross motion. Under Insurance Law § 5106 (a) and CPLR 4518 (a), a third party's affidavit did not establish that the UB-04 incorporated into the NF-5 was the hospital's business record. Under 11 NYCRR 65-1.1 (d), eligibility includes a child regularly residing in the insured's household despite temporarily living elsewhere. Because the investigators' affidavit alleged that the assignor had at some point lived with the insured parent, the insurer did not establish ineligibility as a matter of law.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52274(U)
Insurer prevailed
MVAIC's summary judgment motion was granted because it established that the provider's action was commenced after the limitations period expired. The Appellate Term, Second Department, applied CPLR 203 (a) and found that the provider neither demonstrated timely commencement nor raised a factual issue. It reversed the judgment, vacated the underlying order, denied the provider's cross motion, and dismissed the complaint.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52284(U)
Insurer prevailed
The peer review report was admissible because its facsimile signature was placed by the reviewing doctor or at the doctor's direction. The provider sought summary judgment on its assigned no-fault claim, and the insurer cross-moved to dismiss for lack of medical necessity. The insurer established timely denial through standard office practices and procedures and submitted an affirmed report supplying a factual basis and medical rationale for finding the supplies unnecessary. The provider submitted no doctor's affirmation rebutting those conclusions and failed to raise a triable issue. Its objection to the electronic stamped signature did not render the report inadmissible on this record. The Appellate Term, Second Department, affirmed denial of the provider's motion and grant of the insurer's cross motion.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52286(U)
Insurer prevailed
The insurer established a material residence misrepresentation that rendered the assignor ineligible for no-fault benefits under the policy. The insurer obtained summary judgment dismissing the provider's assigned-benefits action for fraudulent procurement of the policy. On appeal, the provider challenged only the admissibility of the insurer's proof. The affidavits and investigative reports sufficiently established that the insured assignor misrepresented the state of residence. The misrepresentation was material because the insurer was not licensed to insure vehicles in New York at the time of the loss and would not have issued the policy had it known the assignor resided there. The provider, standing in the assignor's shoes, offered no sufficient opposing evidence. The Appellate Term, Second Department, affirmed the judgment.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52279(U)
Insurer prevailed
The insurer's affidavits established timely mailing of the IME notices and denials and the assignor's failure to appear. An employee of the entity that scheduled the IMEs established mailing under its standard office practices and procedures. The insurer's litigation examiner similarly established timely mailing of the denials, and the examining chiropractor/acupuncturist attested to nonappearance. That proof established the insurer's entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's attorney affirmation raised no triable factual issue. The Appellate Term, Second Department, reversed, denied the provider's motion for summary judgment, and granted the insurer's cross motion dismissing the complaint, expressly declining to reach other issues.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52283(U)
Insurer prevailed
The provider failed to establish prima facie entitlement to summary judgment despite the insurer's preclusion from offering evidence. A so-ordered stipulation required the insurer to answer interrogatories by a specified deadline or be precluded. Its undisputed failure to respond timely made that conditional preclusion absolute. The Civil Court nevertheless erred in granting the provider summary judgment merely because the insurer could not rebut the claim. The provider's moving papers did not establish entitlement to relief under CPLR 4518 and Insurance Law § 5106 (a). The Appellate Term, Second Department, reversed the judgment, vacated the grant of summary judgment, and denied the provider's motion for summary judgment; the insurer remained precluded from offering evidence.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52285(U)
Split result
A default declaratory judgment precluded the provider's sixth cause of action, but the insurer's peer review did not support dismissal of the fifth. The insurer obtained a declaration of no payment obligation for the incident after alleging a staged accident; the provider and relevant assignor were defendants. The provider alleged neither lack of notice nor steps to vacate its default. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the sixth cause of action. It affirmed denial of dismissal of the fifth because the peer review was insufficient. It also vacated the CPLR 3212 (g) findings establishing the provider's case on both causes; the provider failed to prove the fact and amount of loss on the fifth.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52278(U)
Insurer prevailed
The provider's summary judgment motion was denied for failure to establish its prima facie entitlement to benefits. Its affidavit did not establish that the bills were untimely denied or that a timely denial was conclusory, vague, or legally meritless. The Appellate Term, Second Department, affirmed, relying on Ave T MPC Corp. v Auto One Ins. Co. and Westchester Med. Ctr. v Nationwide Mut. Ins. Co.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52275(U)
Insurer prevailed
The provider's action was premature because timely mailed verification requests remained unanswered when the action began. The insurer moved for summary judgment dismissing the assigned no-fault claims, and the provider cross-moved for summary judgment. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests under standard office practices and procedures. Because the provider had not responded before commencing suit, the insurer's time to pay or deny had not elapsed under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, affirmed the order granting the insurer's motion to dismiss the action as premature and denying the provider's cross motion.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52277(U)
Provider prevailed
The insurer's cross motion for summary judgment on its IME nonappearance defense was denied because it did not establish mailing of the notices. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the insurer's affidavits insufficient to establish proper mailing of the IME scheduling letters in the provider's assigned no-fault action.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52281(U)
Provider prevailed
The insurer's IME nonappearance defense was precluded because its affidavit failed to establish timely mailing of the denial. The Civil Court found that the provider established its prima facie case for assigned no-fault benefits but denied summary judgment, leaving the IME defense for trial. The claims representative's affidavit did not sufficiently establish timely mailing under the insurer's standard office practices and procedures. The insurer did not challenge the finding that the provider was otherwise entitled to judgment. The Appellate Term, Second Department, reversed, granted the provider summary judgment, and remitted for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a) and its implementing regulations.
Appellate Term, Second Department
Dec 16, 2011
2011 NY Slip Op 52282(U)
Insurer prevailed
The insurer's unrebutted peer review report established that the medical supplies lacked medical necessity. On the parties' summary judgment motions, the Civil Court found that the provider established its prima facie case and that the insurer timely denied the claim, leaving medical necessity as the sole trial issue. The insurer's affirmed report supplied a factual basis and medical rationale for the doctor's conclusion that the supplies were unnecessary. The provider did not rebut that showing or challenge the finding that the insurer was otherwise entitled to judgment. 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
Dec 8, 2011
2011 NY Slip Op 52227(U)
Insurer prevailed
The insurer's doctor's testimony and peer review report established at trial that the services lacked medical necessity. In the provider's action for assigned no-fault benefits, the parties stipulated that medical necessity was the sole trial issue. At the nonjury trial, the insurer's doctor testified that the services were unnecessary, and the corresponding peer review report was admitted into evidence. The provider called no rebuttal witnesses. The Appellate Term, Second Department, found the insurer's proof sufficient and affirmed the judgment dismissing the complaint.
Appellate Term, First Department
Dec 6, 2011
2011 NY Slip Op 52174(U)
Insurer prevailed
The insurer established proper mailing of the IME notices and the assignor's failure to appear, and the provider raised no triable issue. The Civil Court denied the insurer's motion for summary judgment dismissing the assigned no-fault action. The insurer's submissions established prima facie entitlement to judgment under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's opposition raised no factual issue concerning either the reasonableness of the requests or the assignor's nonattendance. The Appellate Term, First Department, reversed, granted the insurer's motion, and dismissed the complaint.
Appellate Term, Second Department
Dec 5, 2011
2011 NY Slip Op 52205(U)
Split result
The insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report. The Appellate Term, Second Department, modified the order on the parties' summary judgment motions. The provider retained summary judgment on that claim because the insurer raised no triable issue. For four partially paid claims, a factual issue concerning the workers' compensation fee schedule required denial of the provider's motion; the insurer's cross motion remained denied. For a separate claim denied for IME nonappearance, the insurer established timely mailing of the scheduling letters and the assignor's failure to attend, warranting dismissal on its cross motion. The court remitted for further proceedings on the remaining claims.
Trial court, Second Department
Dec 29, 2011
2011 NY Slip Op 21471
Split result
A prior medical-necessity judgment did not collaterally estop the providers' claims for services rendered on later dates. The Civil Court, Queens County, granted the insurer leave to amend its answer to assert res judicata and collateral estoppel, finding no surprise or prejudice, but denied summary judgment dismissing the complaint. The earlier trial involved the same providers, patient, accident, and IMEs and determined that the services then litigated were unnecessary. The present claims concerned later treatment, so the issues were not identical. Applying 11 NYCRR 65-1.1 (d), the court declined to make the prior finding conclusive for all subsequent treatment and left open whether contemporaneous or earlier service dates would warrant a different result.
Trial court, Second Department
Dec 19, 2011
2011 NY Slip Op 52255(U)
Provider prevailed
An insurer must establish a reasonable basis and rational need to demand anew documentation the provider has already supplied. The insurer sought summary judgment dismissing an assigned no-fault action as premature for unanswered verification requests. The District Court, Nassau County, denied the motion. The filed NF-3 and assignment contained the required information, and the insurer identified no defect. Other demanded documents had previously been provided, and corporate and licensing information was freely available in public records. Under 11 NYCRR 65-3.2 (b), repeated requests required good reason. The court also concluded that Mallela information concerned the claimant rather than proof of the claim and was outside verification under 11 NYCRR 65-3.5 (b).
Trial court, Second Department
Dec 19, 2011
2011 NY Slip Op 21448
Insurer prevailed
A District Court may dismiss a no-fault action on forum non conveniens grounds even when the parties are New York residents. The District Court, Suffolk County, granted the insurer's application under CPLR 327 (a), dismissing the provider's complaint with leave to recommence in another forum subject to CPLR 205 (a)'s six-month provision. The policy, accident, treatment, IME, and denials were connected to Buffalo. Following Rafter v Newark Ins. Co., the court concluded that forum non conveniens was available to courts of limited jurisdiction. It denied transfer to Erie County under CPLR 510 because UDCA 306 prohibited transfer outside its territorial jurisdiction. Personal jurisdiction remained unresolved because the insurer had not moved on that defense.
