Appellate Term, Second Department
Mar 28, 2012
2012 NY Slip Op 50563(U)
Insurer prevailed
The provider's action was dismissed as abandoned because it failed to justify a delay exceeding 12 years or show meritorious claims. Under CPLR 3215 (c), a party seeking a default judgment more than one year after default must establish a reasonable excuse and a meritorious complaint. The provider submitted neither a verified complaint nor an affidavit from a person with knowledge; a schedule of bill dates and amounts was insufficient. Its explanations for counsel changes, missing files and law office failure left lengthy periods unaccounted for. The Appellate Term, Second Department, reversed the order, insofar as cross-appealed from, denied the provider's motion and granted the transit authority's dismissal cross motion. The provider's appeal concerning interest and attorney fees was dismissed as moot.
Appellate Term, Second Department
Mar 28, 2012
2012 NY Slip Op 50564(U)
Insurer prevailed
The insurer proved mailing of the IME notices, timely mailing of the denials, and the assignor's failure to attend the scheduled IMEs. An employee of the scheduling company established mailing through its standard office practices and procedures. The doctors' affidavits and affirmation established the assignor's nonappearances, and the insurer established timely mailing of its denial forms. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., IME attendance is a condition precedent to the insurer's policy liability. The Appellate Term, Second Department, reversed the order denying the insurer's summary judgment motion and granted dismissal of the complaint. The provider's remaining contentions lacked merit or were improperly raised for the first time on appeal.
Appellate Term, First Department
Mar 20, 2012
2012 NY Slip Op 50491(U)
Insurer prevailed
The insurer obtained renewal based on law office failure and summary judgment on payment, medical necessity and fee schedule defenses. The insurer had inadvertently submitted papers relating to a companion case. It supplied the correct papers, a reasonable excuse and proof of its defenses on renewal. The provider failed to refute payment in full of one claim, rebut the insurer's IME report concerning another, or seriously challenge compliance with the workers' compensation fee schedules for the remaining claims. The Appellate Term, First Department, reversed the order, granted renewal and, upon renewal, granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50415(U)
Insurer prevailed
The insurer's unrebutted peer review report supplied a factual basis and medical rationale for denying the supplies as medically unnecessary. The provider argued that the report was inadmissible because it contained an electronically stamped facsimile signature. The record, however, showed that the doctor who performed the peer review placed the signature on the report. The provider did not rebut the insurer's medical necessity showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint, sustaining the denial of the provider's summary judgment motion and the grant of the insurer's cross motion.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50417(U)
Insurer prevailed
The assignor was ineligible for coverage because the assignor did not regularly reside with the insured when the accident occurred. Both parties' proof established ineligibility under 11 NYCRR 65-1.1 (d) and (g). The insurer timely denied the claim on that ground; lack of coverage would remain available even with a defective or untimely denial. The provider also submitted the claim more than 45 days after the services, contrary to 11 NYCRR 65-1.1. The timely denial adequately stated that ground and advised that reasonable justification could excuse lateness under 11 NYCRR 65-3.3 (e), but the provider's explanation was insufficient. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's summary judgment motion.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50431(U)
Split result
The insurer's unrebutted IME reports established lack of medical necessity for the first through third and sixth through tenth causes of action. The Appellate Term, Second Department, modified the order to grant summary judgment dismissing those causes and the fifth cause's claim purportedly mailed before its form date and before some billed services. The insurer's detailed receipt procedures established nonreceipt of that claim, and the provider offered no opposition. The court affirmed the provider's judgment on the fifth cause's other two claims because the insurer had not addressed them in its motion papers. It also left intact the denial of the insurer's cross motion as to the fourth cause, finding the insurer's contentions meritless.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50418(U)
Insurer prevailed
The provider failed to show exhaustion of remedies against the known vehicle owner and therefore could not recover from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident. Under Hauswirth v American Home Assur. Co., the provider was required to exhaust remedies against that owner before seeking relief from MVAIC. It did not demonstrate exhaustion. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted MVAIC's motion for summary judgment dismissing the complaint and denied the provider's cross motion.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50412(U)
The provider's appeal from a discovery order became academic after Civil Court subsequently dismissed the complaint. The challenged order granted the insurer's motion under CPLR 3126 only to the extent of vacating the notice of trial and compelling responses to discovery demands. Because the later dismissal rendered that appeal academic, the Appellate Term, Second Department, dismissed the appeal without reviewing the discovery order's merits.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50413(U)
Provider prevailed
The insurer failed to establish a timely denial or verification toll and thus failed to show its medical necessity defense was not precluded. The denial was issued more than 30 days after receipt of the provider's claim. The claims examiner's affidavit did not demonstrate timely mailing of the verification request under the insurer's standard office practices and procedures. Accordingly, the insurer failed to establish tolling under 11 NYCRR 65-3.5 (b) and 65-3.8 (a) (1). The Appellate Term, Second Department, affirmed the order denying the insurer's motion for summary judgment dismissing the provider's assigned no-fault claim.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50414(U)
Insurer prevailed
The insurer's unrebutted peer review reports established lack of medical necessity for the supplies at issue. The provider sought summary judgment on assigned no-fault claims, and the insurer cross-moved to dismiss the complaint. Contrary to the provider's contention, the affirmed reports supplied a factual basis and medical rationale for the peer reviewer's conclusions. The provider failed to rebut that showing. The Appellate Term, Second Department, affirmed the order denying the provider's motion and granting the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 6, 2012
2012 NY Slip Op 50419(U)
Provider prevailed
The treating physician's affirmed letter raised a triable issue of medical necessity and defeated the insurer's cross motion for summary judgment. The provider sought assigned no-fault benefits and appealed after Civil Court denied its motion and granted the insurer's cross motion dismissing the complaint. Although the insurer established prima facie entitlement to judgment on lack of medical necessity, the provider's opposing letter was sufficient to require a trial on that issue. The Appellate Term, Second Department, reversed the judgment, vacated the portion of the order granting the insurer's cross motion and denied that cross motion.
Appellate Term, Second Department
Mar 5, 2012
2012 NY Slip Op 50401(U)
Insurer prevailed
An insurer need not establish a hearsay exception for medical records used in a peer review that assumes their facts to assess medical necessity. The insurer timely denied the claims and submitted an affirmed peer review report with a factual basis and medical rationale for finding the services unnecessary. The provider failed to submit a doctor's affirmation rebutting those conclusions. Following Urban Radiology, P.C. v Tri-State Consumer Ins. Co., the report evaluated necessity assuming the records were true, rather than proving the documented injuries or treatment. 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
Mar 5, 2012
2012 NY Slip Op 50404(U)
Insurer prevailed
MVAIC established that it had not received the claim, so its time to pay or deny had never begun to run. In this action for assigned no-fault benefits, MVAIC's moving papers made a prima facie showing of nonreceipt under 11 NYCRR 65-3.8 (a). The provider failed in opposition to establish, among other things, that it had submitted the claim form to MVAIC. The Appellate Term, Second Department, affirmed the order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.
Appellate Term, Second Department
Mar 5, 2012
2012 NY Slip Op 50399(U)
Provider prevailed
The insurer's cross motion for summary judgment on the unpaid acupuncture claims was denied for insufficient fee schedule proof. The claims examiner's affidavit established timely denials but did not support dismissal of the initial-visit claim or show that charges exceeded the relevant workers' compensation fee schedule rates, under Raz Acupuncture and Megacure Acupuncture. The Appellate Term, Second Department, affirmed the order, insofar as appealed from.
Appellate Term, Second Department
Mar 2, 2012
2012 NY Slip Op 50391(U)
Provider prevailed
The provider raised a factual issue as to whether remedies against the vehicle's owner had been exhausted before seeking payment from MVAIC. MVAIC moved for summary judgment dismissing the action for assigned no-fault benefits. Under Hauswirth v American Home Assur. Co., when the provider and assignor know the identity of the owner of the vehicle in which the assignor was a passenger, the provider must exhaust remedies against that owner before seeking relief from MVAIC. The provider's showing created a factual issue on exhaustion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying MVAIC's motion, allowing the provider's action to continue.
Appellate Term, Second Department
Mar 2, 2012
2012 NY Slip Op 50395(U)
Insurer prevailed
MVAIC's cross motion to open its default and compel acceptance of its late answer was granted, and the provider's default judgment motion was denied. The Appellate Term, Second Department, affirmed, finding on review of the record that the Civil Court, Kings County, had not improvidently exercised its discretion, citing Westchester Med. Ctr. v Allstate Ins. Co. and Covaci v Whitestone Constr. Corp.
Appellate Term, Second Department
Mar 2, 2012
2012 NY Slip Op 50392(U)
Insurer prevailed
The provider's unsworn medical report failed to defeat the insurer's supported motion for summary judgment on lack of medical necessity. The insurer established timely denial and submitted an affirmed peer review with a factual basis and medical rationale; the provider's opposition was unsworn under CPLR 2106. Following Urban Radiology, P.C. v Tri-State Consumer Ins. Co., the insurer did not need a hearsay exception for underlying medical records because the review assumed their facts to assess necessity rather than prove injuries or treatment. The Appellate Term, Second Department, 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
Mar 2, 2012
2012 NY Slip Op 50393(U)
Insurer prevailed
The insurer established timely fee schedule denials and full payment for the billed acupuncture services under the workers' compensation fee schedule. Affidavits from its claims representative and an employee of the third party responsible for mailing denials and partial payments together proved timely denial of the disputed portions. The insurer also demonstrated full payment under the applicable schedule, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The Appellate Term, Second Department, reversed the order, denied the provider's motion for summary judgment and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Mar 2, 2012
2012 NY Slip Op 50394(U)
Insurer prevailed
The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer review conclusions on medical necessity. The insurer's affirmed peer review supplied a factual basis and medical rationale for finding the services unnecessary. The provider's objection to an electronically stamped facsimile signature failed because the record showed that the reviewing doctor placed it on the report or directed its placement. The provider did not challenge 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 the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Mar 2, 2012
2012 NY Slip Op 50398(U)
Insurer prevailed
A provider must establish a business records foundation for claim forms offered as prima facie proof of the fact and amount of its loss. Under Insurance Law § 5106 (a), a provider seeking summary judgment must prove submission of a claim and the fact and amount of the loss. CPLR 4518 (a) requires a sufficient foundation for using the claim form to prove the recorded services. The provider's third-party affidavit did not establish that either the NF-5 hospital facility form or its incorporated UB04 was the provider's business record. The Appellate Term, Second Department, affirmed the order denying the provider's motion for summary judgment.
Trial court, Second Department
Mar 13, 2012
2012 NY Slip Op 50542(U)
Insurer prevailed
The providers' noncontract counterclaims were dismissed for deficiencies in duty, standing, and the pleaded damages theories. The Supreme Court, Nassau County, granted the insurer's CPLR 3211 (a) (7) motion, dismissing consequential damages, fraud, punitive damages, and Judiciary Law § 487 claims with prejudice. No independent tort duty supported fraud or punitive damages; consequential losses were not contemplated when the policies issued; and Judiciary Law § 487 does not impose derivative liability on a client. The General Business Law § 349 claim was dismissed without prejudice because the alleged injuries were derivative and the assignment instruments were not submitted to establish transferred rights beyond benefits. The contract claim was severed and continued; the court did not reach whether the alleged conduct warranted punitive damages.
