Appellate Term, First Department
Jan 25, 2012
2012 NY Slip Op 50102(U)
Insurer prevailed
The provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing. In this no-fault benefits action, the insurer established proper and timely mailing of its denials and submitted competent medical evidence, including a sworn peer review report, showing that the diagnostic testing lacked medical necessity. Opposition consisting only of counsel's affirmation did not raise a triable issue. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50151(U)
Provider prevailed
The insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity. Although the insurer established timely mailing of its denials, the provider objected that the chiropractor's reports were affirmed rather than sworn under CPLR 2106. One report bore a notary's stamp and signature but lacked an attestation that the chiropractor was sworn or appeared before the notary, failing CPLR 2309 (b). The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion. It also concluded that, even had the reports been in proper form, the provider's osteopath's affidavit would have rebutted them and raised a triable issue.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50148(U)
Insurer prevailed
The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review. The insurer submitted an affirmed report supplying a factual basis and medical rationale for finding the services unnecessary. The provider opposed with an affirmation from a doctor identified in its claim forms as its owner. Because the doctor was a principal of the professional corporation that was a party, the affirmation was inadmissible. Even if considered, it did not meaningfully address the peer review's conclusions. The provider did not challenge the insurer's entitlement to judgment on other grounds. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50155(U)
Insurer prevailed
The insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing. The District Court had found that the insurer timely denied the assigned no-fault claim but denied summary judgment because it considered the IME report insufficient. The Appellate Term, Second Department, concluded that the report supplied a factual basis and medical rationale for the doctor's determination. The provider did not challenge the finding that the insurer was otherwise entitled to judgment. The appellate court reversed the order, insofar as appealed from, and granted the branch of the insurer's motion seeking summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50145(U)
Provider prevailed
The provider's doctor's affidavit raised a triable question of medical necessity despite the insurer's sufficient peer review. In this assigned no-fault action, the insurer established a timely denial based on lack of medical necessity and submitted an affirmed peer review report with a factual basis and medical rationale. That showing shifted the burden to the provider, whose doctor's affidavit sufficiently demonstrated a factual dispute over whether the services were medically necessary. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50147(U)
Provider prevailed
An assignor's status as a qualified person does not depend on MVAIC's receipt of a household affidavit or written proof of lack of insurance. MVAIC challenged summary judgment for the provider on the ground that the assignor had not supplied those documents and therefore was not a qualified person. Applying Insurance Law § 5202 (b) and Liberty Orthopedics, PLLC v MVAIC, the court rejected that argument. The provider established prima facie entitlement to judgment as a matter of law. The Appellate Term, Second Department, affirmed the judgment entered on the order granting the provider's motion and denying MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50149(U)
Insurer prevailed
An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment. The insurer timely denied the medical-supply claim at issue on appeal and submitted an affirmed peer review with a factual basis and medical rationale. The provider's assertion that it lacked underlying documents did not demonstrate a need for discovery to establish a triable issue under CPLR 3212 (f). Its opposition consisted only of counsel's affirmation, without a practitioner's affidavit rebutting the review. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted summary judgment dismissing the portion of the complaint seeking payment of that claim.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50154(U)
Provider prevailed
A provider may wind up its affairs and recover no-fault benefits for services rendered before revocation of its owner's medical license. The Civil Court denied the provider's summary judgment motion and granted the insurer's cross motion, finding that the provider lacked standing because its owner's license had been suspended. It did not reach the insurer's remaining arguments. Following Kipor Medicine, P.C. v GEICO and A.B. Med. Servs., PLLC v Travelers Indem. Co., the Appellate Term, Second Department, accepted the provider's sole appellate argument concerning recovery for earlier services, reversed the order, and remitted both motions for a new determination.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50142(U)
Insurer prevailed
A provider seeking to restore a case more than one year after it was marked off must show a meritorious claim and a reasonable excuse for delay. The parties stipulated to mark this no-fault action off the trial calendar, and the provider moved to restore it approximately 21 months later. Under 22 NYCRR 208.14 (c) and Vitality Chiropractic, P.C. v State Farm Mut. Ins. Co., those showings were required. The provider failed to make the requisite showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying restoration, leaving the insurer successful on that motion.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50150(U)
Insurer prevailed
The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer reviews finding lack of medical necessity. The Civil Court had found both parties' prima facie showings established and identified medical necessity as the sole issue for trial in the assigned no-fault action. Each affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. Because the opposing affirmation did not rebut those conclusions, and 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 for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50152(U)
Insurer prevailed
The insurer's specific reasons to question the provider's licensing compliance supported discovery of its financial and tax records. In this assigned no-fault action, the provider's notice of trial and certificate of readiness incorrectly stated that discovery was complete. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, conditionally vacating the notice of trial if the provider failed to produce requested records by trial, including W-2 and 1099 forms and federal tax returns and schedules. Under CPLR 3101 (a), those records could reveal reimbursement ineligibility under Mallela. The licensing defense was not precluded, and the insurer had supplied detailed and specific grounds for pursuing it.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50156(U)
The insurer's proof raised a factual question about the assignor's employment status that required Workers' Compensation Board resolution. The providers sought summary judgment for assigned no-fault benefits; the insurer asserted workers' compensation eligibility. The Appellate Term, Second Department, modified the order, insofar as appealed from, to remit the providers' motion for determination after final Board resolution, while affirming the abeyance. It required a prompt application under the Workers' Compensation Law. If the providers failed to file proof of that application within 90 days of the appellate order, the District Court was directed to deny their motion and grant the insurer reverse summary judgment dismissing the complaint, unless the providers showed good cause against dismissal.
Appellate Term, Second Department
Jan 24, 2012
2012 NY Slip Op 50170(U)
Insurer prevailed
An insurer need not annex the medical records reviewed by its peer review doctor to establish lack of medical necessity. In this action for assigned no-fault benefits, the insurer demonstrated timely denials and submitted a peer review report setting forth a factual basis and medical rationale for finding the services medically unnecessary. The District Court denied summary judgment because the underlying medical records were not attached. The Appellate Term, Second Department, reversed the order and granted the insurer's motion dismissing the complaint because the provider failed to rebut the insurer's prima facie showing.
Appellate Term, Second Department
Jan 17, 2012
2012 NY Slip Op 50078(U)
Insurer prevailed
The insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed. The insurer supported its summary judgment motion in this assigned no-fault action with a claims employee's affidavit demonstrating timely denials. Contrary to the District Court's conclusion, the chiropractor's affidavit and IME report supplied a sufficient factual basis and medical rationale to shift the burden to the provider. Because the provider submitted no opposition papers, the showing remained unrebutted. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 17, 2012
2012 NY Slip Op 50076(U)
Insurer prevailed
The providers' renewal submissions failed to show a proper workers' compensation application or its rejection by the Board. The District Court initially dismissed the assigned no-fault action because an employment-status question required Workers' Compensation Board resolution, then granted renewal and judgment to the providers. Under CPLR 2221 (e), renewal required new facts changing the prior determination and reasonable justification for not presenting them earlier. Counsel's hearing-request letter and a nonresponsive Board letter addressing a different communication did not establish that the assignor properly applied or that the Board rejected an application. The Appellate Term, Second Department, reversed the judgment, vacated the renewal order, denied renewal, and reinstated dismissal, emphasizing the Board's primary jurisdiction over coverage.
Appellate Term, Second Department
Jan 17, 2012
2012 NY Slip Op 50079(U)
Insurer prevailed
The provider failed to submit medical evidence raising a triable issue in response to the insurer's sufficient medical-necessity peer review. The provider conceded timely mailing of denials asserting lack of medical necessity and, alternatively, charges exceeding the fee schedules. The insurer's affirmed peer review report supplied a sufficient factual basis and medical rationale for finding the services unnecessary, shifting the burden to the provider. Its opposition did not meet that burden. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted the motion dismissing the complaint on medical-necessity grounds.
Appellate Term, Second Department
Jan 13, 2012
2012 NY Slip Op 50050(U)
Insurer prevailed
The insurer's chiropractor/acupuncturist's affidavit and peer review established lack of medical necessity, and the provider did not rebut them. The insurer also submitted an affidavit showing that its denial of the medical-supply claim was timely mailed in accordance with standard office practices and procedures. The reviewing practitioner's affidavit and report provided a factual basis and medical rationale for finding the supplies medically unnecessary. That unrebutted showing entitled the insurer to judgment in the assigned no-fault action. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint.
Appellate Term, Second Department
Jan 13, 2012
2012 NY Slip Op 50052(U)
Insurer prevailed
The provider's action was premature because requested verification remained outstanding and the insurer's time to pay or deny had not begun. The insurer's litigation representative established timely mailing of the initial and follow-up verification requests through standard office practices and procedures. The insurer demonstrated nonreceipt, and the provider did not show that it supplied the verification before commencing suit. Under 11 NYCRR 65-3.8 (a), the 30-day payment or denial period therefore had not begun. Deeming the appeal to be from the judgment under CPLR 5512 (a), 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.
Appellate Term, Second Department
Jan 13, 2012
2012 NY Slip Op 50054(U)
Insurer prevailed
The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing. The Civil Court had found both parties' prima facie cases established and limited the assigned no-fault action's trial issue to medical necessity. Each affirmed peer review furnished a factual basis and medical rationale for the respective doctor's conclusion that the supplies were unnecessary. The provider also 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 for summary judgment dismissing the complaint.
Trial court, Second Department
Jan 31, 2012
2012 NY Slip Op 50137(U)
Split result
The insurer's peer review established lack of medical necessity only for services it discussed; its fee-schedule defense lacked proof. The report remained evidence despite being signed and notarized one day after the denial because no ground to set aside the admission stipulation was shown. With no provider rebuttal, live expert testimony was unnecessary on this record, although other circumstances could require it. The Civil Court, Kings County, denied the provider's CPLR 4401 directed-verdict motion and dismissed claims for four psychological tests, record review, and related interpretation. The report did not discuss the NSC or P-3 tests, leaving those tests and related interpretation recoverable. The insurer offered no fee-schedule evidence. The court awarded the provider partial judgment and dismissed the balance with prejudice.
Trial court, Second Department
Jan 31, 2012
2012 NY Slip Op 50138(U)
Insurer prevailed
The insurer's stipulated peer review proved lack of medical necessity at trial without live expert testimony on this record. The parties stipulated to the provider's prima facie case, timely denial, and admission of the peer review and medical records. The report lacked notarization, implicating CPLR 2106, but remained evidence because no ground to set aside the admission stipulation was shown. It explained why psychological testing would not meaningfully affect diagnosis or treatment, record review belonged in the initial interview, and interpretation of unnecessary tests was unwarranted. The provider offered no rebuttal evidence. The Civil Court, Kings County, denied the provider's CPLR 4401 directed-verdict motion, granted judgment to the insurer, and dismissed the complaint with prejudice, while acknowledging that other circumstances could require live testimony.
Trial court, Second Department
Jan 23, 2012
2012 NY Slip Op 50119(U)
Provider prevailed
An IME cutoff supports summary judgment only if the report supplies a factual basis and medical rationale for finding the claimed services unnecessary. The provider timely submitted its thoracic MRI claim under 11 NYCRR 65-1.1, creating a presumption of medical necessity. The insurer relied on an orthopedic IME cutoff, but the report did not mention an examination of the thoracic spine or identify who ordered the MRI or when. It addressed other body areas; the denial did not indicate a cutoff for neurological or chiropractic testing. Factual questions remained about the ordering practitioner, timing, and thoracic condition. The District Court, Nassau County, denied the insurer's summary judgment motion because it failed to establish prima facie entitlement to dismissal.
Trial court, First Department
Jan 17, 2012
2012 NY Slip Op 22046
Insurer prevailed
The chiropractic provider's claims were dismissed because a nonemployee physician, rather than the provider, performed the testing. After trial, the Civil Court, New York County, rejected the insurer's improper-referral defense: electromuscular testing and chiropractic services were outside the enumerated services governed by Public Health Law § 238-a, as defined in Public Health Law § 238 and Education Law §§ 6551 and 6731. Nevertheless, the provider's interrogatory responses and claim forms identified the nonemployee physician as the person administering the tests. Counsel's attempted correction was not evidence, and new evidentiary submissions in posttrial memoranda were rejected. Following A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., the court dismissed the action with prejudice because the provider could not recover for those services.
Trial court, Second Department
Jan 9, 2012
2012 NY Slip Op 22008
Insurer prevailed
The injured claimant's five years of inaction after providing discovery constituted unreasonable delay warranting a toll of no-fault interest. The Civil Court, Kings County, applied 11 NYCRR 65-3.9 (d) and directed that interest be tolled beginning one year after the claimant complied with the discovery request. The claimant had first waited nearly four years to respond to discovery demands, then resumed prosecution only after receiving a notice under CPLR 3216 (b) (3). Rejecting the argument that the transit authority could have advanced the case earlier, the court placed responsibility for prompt prosecution on the applicant. It disagreed with Igor Shtarkman Neurologist, P.C. v Allstate Ins. Co. that unreasonable delay required affirmative obstruction rather than neglect to proceed.
