Appellate Term, First Department
Feb 28, 2012
2012 NY Slip Op 50325(U)
Insurer prevailed
MVAIC's compliance conference default was vacated because counsel's miscalendaring was excusable and was neither willful nor part of a delay pattern. MVAIC sought relief from a default judgment entered after it failed to appear at the conference. The providers did not argue that the delay caused prejudice or that MVAIC lacked a meritorious defense. Considering the strong policy favoring resolution on the merits, the Appellate Term, First Department, exercised its discretion to relieve MVAIC of the unintended default. It reversed the order denying vacatur, granted MVAIC's motion, vacated the default judgment and remanded for further proceedings.
Appellate Term, First Department
Feb 22, 2012
2012 NY Slip Op 50271(U)
Insurer prevailed
An insurer need not show that an assignor's failure to appear for EUOs was willful to obtain summary judgment on that defense. The insurer established proper mailing of the EUO notices and the assignor's nonappearance, making a prima facie showing for dismissal under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC. The provider failed to raise a triable issue concerning either the reasonableness of the requests or the failure to attend. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment and dismissed the complaint.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 22047
Insurer prevailed
An insurer may obtain Mallela discovery on sufficient allegations of fraudulent incorporation despite not pleading that defense. Under CPLR 3101 (a), the Appellate Term, Second Department, found adequate allegations in investigator affidavits from other litigation describing the provider owner's connections with individuals and corporations charged with insurance fraud. A Mallela defense is nonwaivable and may be asserted notwithstanding an untimely denial. The court affirmed the order conditionally striking the notice of trial unless the provider produced financial documents and then its owner for deposition, and denying the provider's cross motion for a protective order and sanctions. A separate concurrence also found the pleaded standing, conditions-precedent, and failure-to-state-a-cause-of-action defenses sufficient to permit the requested discovery.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50349(U)
An insurer's trial expert may testify on medical necessity without having authored the peer review, within the original report's denial basis. The nonjury trial was limited to medical necessity under CPLR 3212 (g). Civil Court essentially precluded the insurer's expert and directed a verdict for the provider. The Appellate Term, Second Department, reversed the resulting judgment and remitted for a new trial on that limited issue, holding that the expert should have been permitted to testify. A separate concurrence cautioned against unduly restricting the expert's opinions and would require the provider to establish medical necessity at trial after the reciprocal summary judgment motions were denied.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50342(U)
Insurer prevailed
An insurer may obtain discovery on an unpleaded Mallela defense when sufficient allegations of fraudulent incorporation support the request. Under CPLR 3101 (a), the insurer's investigator supplied detailed allegations linking the provider to another provider whose owner was convicted of fraud and falsifying business records. The insurer had not moved to amend its answer, but a Mallela defense is nonwaivable and may be raised despite an untimely denial. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, compelling disclosure and the owner's deposition and denying a protective order; a separate concurrence relied on the companion appeal decided the same day, Lexington Acupuncture, P.C. v General Assur. Co., No. 2010-165 K C.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50348(U)
Provider prevailed
The insurer failed to prove timely mailing of EUO scheduling letters or tolling and thus failed to avoid preclusion of its EUO nonappearance defense. The provider proved claim submission, the fact and amount of loss, and failure to pay or deny within 30 days under Insurance Law § 5106 (a). The insurer did not establish tolling under 11 NYCRR 65-3.8 or timely denials. The Appellate Term, Second Department, reversed, granted the provider summary judgment, denied the insurer's cross motion and remitted for statutory interest and attorney's fees. A dissent would have affirmed, finding that timely letters seeking outstanding statements qualified as verification requests and tolled the denial period.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50340(U)
Split result
The insurer could amend its licensing defense but could not compel corporate and financial disclosure without served or proposed supplemental demands. Under CPLR 3025 (b), leave to amend was proper because the provider suffered neither prejudice nor surprise from the delay. The insurer's existing demands did not seek the requested management, lease, corporate, tax or bank records, and it neither served nor submitted proposed supplemental demands before cross-moving under CPLR 3104. The Appellate Term, Second Department, modified the order to deny compelled disclosure and otherwise affirmed. It did not preclude supplemental demands and rejected the provider's contention that a change or withdrawal of attorney form under CPLR 321 required notarization.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50344(U)
Insurer prevailed
The insurer's biomechanical evidence established no causal connection between the accident and the assignors' claimed injuries. The engineer reviewed vehicle photographs, medical records and EUO transcripts, all attached to the motion, and concluded that the injuries could not have arisen from the accident. A certificate of conformity under Real Property Law § 299-a made the affidavit compliant with CPLR 2309 (c). The provider failed to rebut the admissible showing. The Appellate Term, Second Department, reversed and granted the insurer's motion for summary judgment dismissing the complaint; a dissent found only a founded belief that the injuries were unrelated and would have affirmed denial of the motion.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50345(U)
Provider prevailed
The insurer's motion for summary judgment on lack of medical necessity was denied because the provider's psychologist's affidavit raised a factual issue. The decision relied on that opposing affidavit and Ozone Park Chiropractic v Clarendon Natl. Ins. Co., without describing the affidavit's contents. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Feb 21, 2012
2012 NY Slip Op 50346(U)
Insurer prevailed
The provider's practitioner's affidavit failed to meaningfully rebut the insurer's peer review conclusions that the services were medically unnecessary. Civil Court denied both parties' summary judgment motions and limited trial to medical necessity. The insurer's two affirmed peer review reports each supplied a factual basis and medical rationale for finding the services unnecessary. 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, First Department
Feb 16, 2012
2012 NY Slip Op 50226(U)
Insurer prevailed
The provider's generic medical affidavit and unsigned report failed to rebut the insurer's peer review finding that diagnostic testing was unnecessary. The insurer submitted a chiropractor's sworn report with a factual basis and medical rationale. The opposing physician's affidavit did not indicate that its conclusions rested on a medical examination or review of medical records, and did not address the peer reviewer's contrary findings. The separate unsigned report could not properly be considered under CPLR 2106. The Appellate Term, First Department, reversed the order denying the insurer's summary judgment motion, granted the motion and dismissed the complaint.
Appellate Term, Second Department
Feb 14, 2012
2012 NY Slip Op 50305(U)
Split result
The insurer's unrebutted IME report established lack of medical necessity for acupuncture services from October 30, 2007 through January 30, 2008. The sworn report supplied a factual basis and medical rationale for finding no need for further acupuncture. The insurer's proof did not warrant dismissal of the initial consultation claim or establish excessive fees for treatment from August 30 through October 25, 2007. The provider's third-party biller's affidavit also failed to establish admissibility under CPLR 4518 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss only the later treatment claims and strike the finding under CPLR 3212 (g) that the provider established its prima facie case, and otherwise affirmed.
Appellate Term, Second Department
Feb 9, 2012
2012 NY Slip Op 50233(U)
Insurer prevailed
An unvacated default declaratory order barring no-fault benefits is a final determination that can preclude a provider's action under res judicata. After the provider commenced this action, the insurer obtained an order in Supreme Court, Queens County, declaring no present or future obligation to furnish benefits to the named providers and assignors, including those in this action. A contrary judgment could destroy or impair the rights established by that order. Its entry on default did not defeat finality or preclusion. The Appellate Term, Second Department, affirmed the order granting the insurer's cross motion for summary judgment dismissing the complaint and denying as moot the provider's motion to compel discovery or strike the answer.
Appellate Term, Second Department
Feb 9, 2012
2012 NY Slip Op 50246(U)
Insurer prevailed
A sua sponte order is not appealable as of right, and the providers had not obtained leave to appeal the dismissal of their complaint. The insurer moved for summary judgment and the providers cross-moved for partial summary judgment, but the District Court, Nassau County, did not reach either motion's merits. It instead dismissed the complaint without prejudice to amendment within 30 days. Following Sholes v Meagher, the Appellate Term, Second Department, dismissed the providers' appeal. The providers could have moved to vacate the order and, under UDCA 1702 (a) (3), appealed as of right from a denial, but they had not done so. The dismissal therefore remained in place in the insurer's favor.
Appellate Term, Second Department
Feb 9, 2012
2012 NY Slip Op 50236(U)
Insurer prevailed
The provider failed to prove that the billed treatment was rendered because its claim forms lacked a business records foundation. Under Insurance Law § 5106 (a) and CPLR 4518 (a), the provider had to submit admissible proof of the fact and amount of its loss. Its third-party biller's affidavit failed to establish incorporation of, and reliance upon, the provider's medical records in the biller's regular business. Although the provider's owner established a foundation for symptom checklists and other documents, those records did not show that the specific billed procedures were performed. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the provider's summary judgment motion, sustaining the insurer's challenge.
Appellate Term, Second Department
Feb 9, 2012
2012 NY Slip Op 50232(U)
Insurer prevailed
The provider's erroneous statement that discovery was complete warranted striking its no-fault action from the trial calendar. The provider filed a notice of trial and certificate of readiness containing that statement. Civil Court granted the insurer's motion to strike the action from the calendar and compel the provider's owner's deposition, and denied the provider's cross motions, including requests for costs and sanctions. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, finding the calendar ruling proper, no basis to disturb the deposition ruling and the cross motions properly denied.
Appellate Term, Second Department
Feb 9, 2012
2012 NY Slip Op 50234(U)
Insurer prevailed
The insurer's four-year delay in seeking deductible and eligible-injured-person defenses did not establish prejudice warranting denial of amendment. The provider did not dispute the policy deductible or its assertion in timely denials, and unrelated discovery and trial postponements had delayed the action. Lateness alone did not bar amendment absent sufficient prejudice or patently meritless defenses. As assignee, the provider stood in the insured's shoes and could not claim ignorance of the contract terms supporting its recovery. The Appellate Term, Second Department, affirmed the order granting leave to amend under CPLR 3025 (a), finding no abuse of discretion on the record.
Appellate Term, Second Department
Feb 2, 2012
2012 NY Slip Op 22029
Provider prevailed
A physician's estate administrator need not be medically licensed to authorize prosecution of the professional corporation's claims. After the provider's sole shareholder, officer, and director died, the corporation continued to exist under Business Corporation Law § 1510 but lacked someone authorized to proceed until an estate administrator was appointed. The administrator acted to preserve estate value, rather than as a corporate officer or director practicing medicine. The Appellate Term, Second Department, affirmed restoration of the providers' action to the trial calendar under 22 NYCRR 208.14 (c). The motion was made within one year after the action was marked off, and counsel's affirmation satisfactorily explained the removal and demonstrated readiness for trial.
Appellate Term, Second Department
Feb 2, 2012
2012 NY Slip Op 50205(U)
Provider prevailed
The providers' motion to restore the no-fault action to the trial calendar under 22 NYCRR 208.14 (c) was granted and affirmed on appeal. An administrator had been appointed after one provider's owner died to preserve the estate and prevent loss. The Appellate Term, Second Department, affirmed for the reasons stated in the companion appeal decided the same day, Eastern Star Acupuncture, P.C. v Allstate Ins. Co., No. 2010-2113 Q C.
Trial court, Second Department
Feb 22, 2012
2012 NY Slip Op 22038
Insurer prevailed
A rebuttal report based principally on a nontreating doctor's records review must include those records to raise a medical necessity issue. The District Court, Nassau County, granted the insurer's renewed summary judgment motion and dismissed the provider's action for durable medical equipment benefits. The insurer established timely denial and a factual basis and medical rationale for its peer review. Under Active Imaging, P.C. v Progressive Northeastern Ins. Co., the insurer did not have to annex the reviewed records. The prior motion had been denied without prejudice to allow their production. The provider's opposition nevertheless omitted those records and relied on a conclusory rebuttal report. On this record, that report did not meaningfully rebut the insurer's expert or raise a triable issue.
Trial court, Second Department
Feb 2, 2012
2012 NY Slip Op 50184(U)
Split result
An accredited office-based surgery provider may recover medical and surgical charges at a prevailing local fee absent an applicable fee schedule. The provider lacked Public Health Law article 28 status and could not use the ambulatory surgery facility fee schedule, but complied with Public Health Law § 230-d and was entitled to reimbursement under Insurance Law § 5102 (a) (1). Insurance Law § 5108 (a) limits reimbursement to applicable schedules; otherwise, 11 NYCRR 68.5 (1) (b) permits prevailing local fees subject to insurer review against similar scheduled procedures. No applicable schedule or local prevailing fee was proved. The District Court, Nassau County, denied the insurer summary judgment on fees, requiring trial of the amount, but granted its motion on timely denial based on unrebutted mailing affidavits.
