Appellate Division, Second Department
Apr 17, 2012
2012 NY Slip Op 02867
Insurer prevailed
The insurer defeated the provider's summary judgment motion by proving timely verification requests and denial after verification was received. The provider initially demonstrated that its statutory billing form was mailed and received and that the insurer did not pay or deny within 30 days, establishing prima facie entitlement under Insurance Law § 5106 (a). In opposition, the insurer established timely additional verification requests and denial within 30 days after receiving the requested information under 11 NYCRR 65-3.8 (a) (1), 11 NYCRR 65-3.5 (b), and 11 NYCRR 65-3.6 (b). The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50777(U)
Insurer prevailed
A provider that misses discovery objection deadlines must respond except as to privileged or palpably improper demands. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment and compelling responses to the insurer's discovery demands. The provider failed to object timely under CPLR 3122 (a) and CPLR 3133 (a). Demands concerning precluded defenses remain palpably improper despite that failure, but the Mallela licensing defense is not precluded. The insurer supplied detailed, specific reasons to believe the provider might be ineligible for reimbursement. Tax returns, distribution records, leases and management agreements would permit inquiry into eligibility, supporting the discovery order rather than dismissal under CPLR 3126.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50785(U)
Insurer prevailed
The insurer established a reasonable excuse for late motion papers and a meritorious defense, warranting vacatur of its default. The Appellate Term, Second Department, reversed the judgment, vacated the order denying relief, granted the insurer's vacatur motion and remitted both summary judgment motions for a new determination. The Civil Court had granted the provider's motion as unopposed after rejecting the insurer's opposition and cross motion under its briefing schedule, although served 21 days before the return date. It then denied vacatur because the default order had already rejected the papers. The appellate court applied CPLR 5015 (a) (1), which permits relief upon a reasonable excuse and meritorious defense, and found both requirements satisfied.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50774(U)
Insurer prevailed
The provider's action was premature because it failed to respond to timely verification requests and follow-up requests. The Appellate Term, Second Department, reversed the judgment, vacated the order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The claims specialist's affidavit established timely mailing and, contrary to the Civil Court's finding, sufficiently established the provider's failure to respond. The provider never alleged that it had responded. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny had therefore not begun. The appellate court reached no other issue.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 22119
Split result
An insurer precluded from offering evidence at trial cannot use that evidence to obtain summary judgment. The insurer served interrogatory responses 13 months late under a so-ordered stipulation requiring responses within 60 days or trial preclusion. The stipulation became an absolute preclusion order, and the insurer offered no excuse to avoid its effect. The Appellate Term, Second Department, modified the order to grant the provider's request for final preclusion. It affirmed denial of the provider's summary judgment motion because preclusion did not eliminate the provider's prima facie burden, which its papers failed to meet under CPLR 4518 and Insurance Law § 5106 (a). The insurer's medical-necessity cross motion was also properly denied because it relied on evidence barred at trial.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50772(U)
Insurer prevailed
The provider's argument that the insurer had not proved a policy provision authorizing EUOs was rejected. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer summary judgment dismissing the three challenged claims based on the assignor's EUO nonappearance. The provider argued that dismissal required proof that the applicable automobile policy contained an EUO provision. The appellate court rejected that contention, citing Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co. and related authority. Its remaining contention was not properly before the court because it was raised for the first time on appeal.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50775(U)
Insurer prevailed
The provider failed to establish its prima facie case because it did not show that its claim forms were admissible business records. The Appellate Term, Second Department, reversed the judgment awarding assigned no-fault benefits, vacated the portion of the order granting the provider summary judgment and denied the motion. The provider relied on the annexed claim forms to establish the fact and amount of its loss. It did not demonstrate their admissibility under CPLR 4518 (a), which permits business records to prove the act, transaction, occurrence or event recorded. Without admissible proof of the loss, the provider was not entitled to summary judgment; the appellate court reached no other issue.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50778(U)
Insurer prevailed
A provider seeking summary judgment must show an overdue claim or a timely denial that is conclusory, vague or legally meritless. The Appellate Term, Second Department, affirmed denial of the provider's unopposed summary judgment motion. Under Insurance Law § 5106 (a), a provider's prima facie showing requires proof of claim submission, the fact and amount of the loss, and either failure to pay or deny within 30 days or a timely denial that is conclusory, vague or without merit as a matter of law. The provider failed to demonstrate that the insurer's denial forms were untimely or legally meritless, so its unopposed motion did not establish entitlement to judgment.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50782(U)
Provider prevailed
The insurer failed to offer a reasonable excuse for its default in opposing the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits after denial of the insurer's motion to vacate the default order. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious defense. The insurer's moving papers did not proffer, let alone establish, an excuse, so relief was denied. The appellate court also dismissed the insurer's direct appeal from the unopposed summary judgment order because CPLR 5511 bars an appeal from an order entered on the appealing party's default.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50783(U)
Provider prevailed
The insurer failed to offer a reasonable excuse for its default in opposing the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits after denial of the insurer's motion to vacate the default order. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious defense. The insurer's moving papers did not proffer, let alone establish, an excuse, so relief was denied. The appellate court also dismissed the insurer's direct appeal from the unopposed summary judgment order because CPLR 5511 bars an appeal from an order entered on the appealing party's default.
Appellate Term, Second Department
Apr 27, 2012
2012 NY Slip Op 50784(U)
Provider prevailed
The insurer failed to offer a reasonable excuse for its default in opposing the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the judgment awarding the provider assigned no-fault benefits after denial of the insurer's motion to vacate the default order. Under CPLR 5015 (a) (1), vacatur required both a reasonable excuse and a meritorious defense. The insurer's moving papers did not proffer, let alone establish, an excuse, so relief was denied. The appellate court also dismissed the insurer's direct appeal from the unopposed summary judgment order because CPLR 5511 bars an appeal from an order entered on the appealing party's default.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50758(U)
Insurer prevailed
MVAIC's motion to sever was granted because the three assignors' claims arose from separate accidents and were unlikely to share factual issues. The provider sued to recover no-fault benefits assigned by three people. Its complaint alleged three accidents on three different dates. Applying CPLR 603 and Radiology Resource Network, P.C. v Fireman's Fund Ins. Co., the court concluded that the facts relating to each claim would likely present few, if any, common issues. The Appellate Term, Second Department, reversed the order denying severance and granted MVAIC's motion to separate the causes of action into three actions.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50751(U)
Insurer prevailed
MVAIC established that no timely notice of claim had been filed and no leave to file a late notice had been sought. Under Insurance Law § 5208 (a) and (c), those failures meant that the provider's assignor was not a covered person under Insurance Law § 5221 (b) (2). A condition precedent to the provider's right to apply for no-fault benefits from MVAIC therefore remained unsatisfied. The Appellate Term, Second Department, reversed the order, granted MVAIC's motion for summary judgment dismissing the complaint and denied the provider's cross motion for summary judgment.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50760(U)
Split result
The injured claimant failed to justify restoration, but CPLR 3404 did not authorize dismissal of the Civil Court action. The Appellate Term, Second Department, modified the order to deny restoration to the trial calendar and affirmed denial of the insurer's dismissal cross motion. The no-fault benefits action had been marked off for more than a year. Restoration required, among other things, a meritorious cause of action and a reasonable excuse for delay, which the claimant failed to demonstrate. CPLR 3404 applies only in Supreme Court or County Court, so it could not support dismissal here. Even if treated as a CPLR 3216 motion for want of prosecution, the cross motion was premature because the 90-day notice period had not expired.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50764(U)
Insurer prevailed
The providers failed to show a proper workers' compensation application within the deadline imposed by the prior appellate order. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the providers summary judgment and granting the insurer's cross motion dismissing the complaint. An earlier appeal required a prompt application to the Workers' Compensation Board and proof of that application within 90 days of entry of the appellate order. Absent compliance or good cause, the District Court was to deny the providers' motion and dismiss the complaint by reverse summary judgment. Citing Workers' Compensation Law § 33, the appellate court found no showing of a proper application within the prescribed period.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50769(U)
Insurer prevailed
The provider's physician failed to rebut the insurer's peer review because the affidavit did not specifically justify the additional studies. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The insurer established timely denial based on lack of medical necessity. Contrary to the Civil Court's conclusion, its peer review report and the reviewer's accompanying affidavit sufficiently established that defense and entitlement to summary judgment. The provider's supervising physician did not justify the additional studies with specificity or rebut the report's conclusions. The provider therefore failed to raise a triable factual issue concerning medical necessity.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50757(U)
Insurer prevailed
MVAIC established timely mailing of the IME notices and denials and the assignor's failure to attend the scheduled IMEs. MVAIC submitted an affidavit from the chiropractor/acupuncturist retained to conduct the IMEs, which sufficiently established nonappearance. The provider failed to raise a factual issue. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting MVAIC's cross motion dismissing the complaint. One justice concurred in part and dissented in part, concluding that the third-party scheduler's affidavit inadequately described mailing procedures and that MVAIC's cross motion should have been denied.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50756(U)
Insurer prevailed
MVAIC established that the assignor had not timely filed a notice of claim or sought leave to file a late notice. The absence of a timely filing or application for leave under Insurance Law § 5208 (a) and (c) meant that the assignor was not a covered person under Insurance Law § 5221 (b) (2). The provider therefore had not satisfied a condition precedent to seeking no-fault benefits from MVAIC. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, denied the provider's motion for summary judgment and granted MVAIC's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50754(U)
Provider prevailed
The provider raised a factual issue about exhaustion of remedies against the vehicle's owner, defeating MVAIC's summary judgment motion. The provider and 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 had to exhaust remedies against that owner before seeking relief from MVAIC. Its showing created a factual issue as to whether those remedies had been exhausted. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying MVAIC summary judgment dismissing the complaint, preserving the provider's action.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50750(U)
Insurer prevailed
The provider's claims against MVAIC were dismissed because it failed to demonstrate exhaustion of remedies against the ambulette's owner. The assignor was allegedly injured while riding as a passenger in an ambulette. Following Hauswirth v American Home Assur. Co., the provider, as assignee, was required to exhaust remedies against the vehicle's owner before seeking relief from MVAIC. The provider did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50752(U)
Insurer prevailed
The insurer's affirmed peer reviews supplied a factual basis and medical rationale for finding the services medically unnecessary. The provider sought summary judgment for assigned no-fault benefits, and the insurer cross-moved for summary judgment dismissing the complaint. Contrary to the provider's contention, each peer review report supported the reviewing doctor's determination that the services lacked medical necessity. The Appellate Term, Second Department, affirmed the judgment entered upon denial of the provider's motion and grant of the insurer's cross motion. The provider's remaining contentions lacked merit or were academic.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50753(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures. The examining orthopedist's affirmations established the nonappearances, and the claims examiner's affidavit established timely mailing of the denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., appearance at a duly scheduled IME is a condition precedent to the insurer's policy liability. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint following the grant of the insurer's summary judgment motion and denial of the provider's cross motion.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50755(U)
Insurer prevailed
The insurer's denial and benefit explanation forms sufficiently identified the workers' compensation fee schedule as the basis for partial denials. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after the insurer obtained summary judgment and the provider's cross motion was denied. The provider's sole contention challenged the adequacy of the forms. Read together, the denial forms and accompanying explanations sufficiently informed the provider that its bills were partly paid and partly denied because the unpaid portions exceeded the fee-schedule amounts. The appellate court rejected that challenge, following Great Wall Acupuncture v GEICO Gen. Ins. Co.
Appellate Term, Second Department
Apr 25, 2012
2012 NY Slip Op 50762(U)
Insurer prevailed
The insurer's summary judgment dismissal was upheld because its claim representative's affidavit sufficiently established timely denials. The Appellate Term, Second Department, affirmed the judgment entered after denial of the provider's motion and grant of the insurer's cross motion dismissing the complaint. The court relied on that affidavit to reject the provider's sole appellate contention.
Appellate Term, First Department
Apr 19, 2012
2012 NY Slip Op 50839(U)
Provider prevailed
MVAIC's motion for summary judgment dismissing the providers' complaint was denied, and that denial was affirmed on appeal. The Appellate Term, First Department, issued no opinion and cited Pomona Med. Diagnostic, P.C. v MVAIC, leaving the providers successful in opposing dismissal.
Appellate Term, First Department
Apr 13, 2012
2012 NY Slip Op 22098
Insurer prevailed
The provider's acquiescent conduct bound it to the insurer's revised settlement terms and required reduction of the consent judgment. The insurer's counsel marked and initialed changes extending the payment period and reducing the payment obligation upon noncompliance. The provider raised no objection and undertook no further litigation for six months, then entered judgment under its original proposal. Because the provider acknowledged an enforceable settlement and accepted the revisions through its conduct, the Appellate Term, First Department, modified the order to grant the insurer's motion to reduce the judgment to $1,251. The judgment was a consent judgment, so the motion court erred in applying default-vacatur law.
Appellate Term, Second Department
Apr 10, 2012
2012 NY Slip Op 50681(U)
Provider prevailed
Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date. The billing manager's affidavit established that the claim forms were admissible under CPLR 4518 and mailed within 45 days after services were rendered. The insurer's late-submission denials therefore lacked merit as a matter of law under 11 NYCRR 65-1.1. The provider established prima facie entitlement to summary judgment, and the insurer failed to raise a triable issue. The Appellate Term, Second Department, reversed the order denying the provider's motion, granted summary judgment, and remitted the matter to the Civil Court for calculation of statutory interest and assessment of attorney fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Apr 10, 2012
2012 NY Slip Op 50677(U)
Insurer prevailed
The provider's summary judgment motion was denied because its billing supervisor's affidavit failed to establish a prima facie case. The Appellate Term, Second Department, affirmed the denial in the provider's action against MVAIC, citing CPLR 4518 (a), Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. and Ave T MPC Corp. v Auto One Ins. Co. It reached no other issue.
Appellate Term, Second Department
Apr 10, 2012
2012 NY Slip Op 50678(U)
Insurer prevailed
The insurer established lack of medical necessity for the remaining claims, while timely submission of one claim remained disputed. The Appellate Term, Second Department, reversed the provider's judgment on the single claim and denied the corresponding branch of its summary judgment cross motion. A triable issue concerning timely submission under 11 NYCRR 65-1.1 prevented summary judgment for either party on that claim. The court also reversed the order, insofar as appealed from and reviewed on direct appeal, and granted the insurer summary judgment dismissing the remaining claims. Sworn and affirmed peer reviews supplied a factual basis and medical rationale for lack of medical necessity, which the provider failed to rebut. The timely denial of those claims was undisputed.
Appellate Term, Second Department
Apr 10, 2012
2012 NY Slip Op 50685(U)
Split result
The insurer failed to establish that the assignor's alleged intoxication proximately caused the accident. In the provider's action for assigned no-fault benefits, the District Court denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed. The insurer submitted no evidence from which the accident's circumstances could be ascertained, leaving its intoxication defense unsupported under Insurance Law § 5103 (b) (2) and 11 NYCRR 65-3.14 (b) (1). The provider's motion remained denied because it had not demonstrated prima facie entitlement to judgment as a matter of law.
Appellate Term, Second Department
Apr 10, 2012
2012 NY Slip Op 50686(U)
A defendant's application to open a default must be supported by motion papers on notice under CPLR 2214. After paying excess no-fault benefits, the insurer brought a subrogation action arising from a rear-end collision. A defaulting defendant appeared at the inquest and orally sought to open the default and answer. The District Court granted that request and later denied the insurer's unopposed motion to vacate the order. The Appellate Term, Second Department, reversed and granted the insurer's motion. Opening the default required a reasonable excuse and a meritorious defense, presented on proper motion papers. The defendant's oral application was denied without prejudice to renewal upon proper papers.
Appellate Term, Second Department
Apr 4, 2012
2012 NY Slip Op 22095
Insurer prevailed
An out-of-state affidavit's defective certificate of conformity may be cured later with nunc pro tunc effect. The insurer sought summary judgment based on the assignors' failure to attend EUOs, and the provider challenged the certificate accompanying the claims representative's affidavit under CPLR 2309 (c). The Appellate Term, Second Department, affirmed the order conditionally granting the insurer summary judgment dismissing the complaint, finding no abuse of discretion in allowing 60 days to serve and file the affidavit with a compliant certificate. The appellate court expressly declined to determine whether any subsequently submitted certificate complied, because that issue was outside the appeal.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50579(U)
Insurer prevailed
The provider's objections to the EUO requests were not heard because it did not claim to have responded to those requests. The insurer's affidavits established timely mailing of the EUO scheduling letters and denial forms through standard office practices and procedures. An affirmation from an attorney responsible for conducting the EUOs established the provider's failure to appear at either scheduled EUO. Under 11 NYCRR 65-1.1, appearance at a duly requested EUO is a condition precedent to policy liability. Following Crescent Radiology, PLLC v American Tr. Ins. Co., the provider's objections could not be raised after its failure to respond. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint upon the insurer's summary judgment cross motion.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50584(U)
The provider's challenge to allegedly stamped signatures on peer reviews required a hearing to determine the reports' admissibility. The Appellate Term, Second Department, reversed the judgment dismissing the assigned no-fault claims, vacated the summary judgment order, and remitted for a limited hearing under CPLR 2218 and 22 NYCRR 208.11 (b) (4). If admissible, the insurer's six peer reviews sufficiently demonstrated lack of medical necessity, and the provider failed to rebut that showing. But the properly asserted claim that the reports bore stamped facsimiles of the doctor's signature raised a factual issue that ordinarily could not be resolved from the motion papers alone. After determining signature validity and admissibility, the Civil Court was to decide both parties' summary judgment motions anew.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50578(U)
Provider prevailed
MVAIC's uncertified police report containing hearsay failed to raise a factual issue about whether the injuries arose from a motor vehicle accident. MVAIC appealed only the portion of the order granting the provider's cross motion for summary judgment on assigned no-fault claims. Its sole evidence challenging the cause of the assignor's injuries was an uncertified copy of a police report that merely recorded a hearsay statement. That showing was insufficient to establish a triable issue of fact. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, sustaining summary judgment for the provider.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50571(U)
Insurer prevailed
The insurer established grounds to amend its answer to assert fraudulent incorporation and obtain the provider's tax documents. The Appellate Term, Second Department, affirmed the order, insofar as appealed from. Amendment was proper under CPLR 3025 (b): no prejudice or surprise was shown, and the proposed defense was neither meritless nor palpably insufficient. Detailed, specific reasons supported suspected licensing ineligibility under 11 NYCRR 65-3.16 (a) (12) and Mallela, and special circumstances warranted tax-document disclosure under CPLR 3101. Vacatur of the notice of trial was proper because the readiness certificate incorrectly stated discovery was complete. The order also compelled specified discovery and denied the provider's cross motion for summary judgment or a prima facie finding under CPLR 3212 (g).
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50582(U)
Split result
A provider's failure to object timely to discovery demands does not require disclosure of privileged or palpably improper matters. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's request for discovery and a doctor's deposition concerning its staged-accident defense. The insurer failed to show how a doctor not alleged to have witnessed the accident would possess relevant information. Demands concerning durable medical equipment were improper because no such equipment was involved; demands arguably addressing medical necessity were improper because that defense was precluded. The provider's summary judgment motion remained denied: proof of nonpayment alone did not establish that the claims were denied after 30 days or that the denials were conclusory, vague, or legally meritless.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50583(U)
Insurer prevailed
The provider's affidavit failed to state unequivocally that the insurer's denials were untimely or without merit as a matter of law. The Appellate Term, Second Department, affirmed denial of the provider's unopposed summary judgment motion for assigned no-fault benefits. Under Insurance Law § 5106 (a), prima facie entitlement requires proof of claim submission, the fact and amount of the loss, and either failure to pay or deny within 30 days or a timely denial that is conclusory, vague, or without merit as a matter of law. The affidavit's failure to establish the required deficiency in the denials prevented summary judgment despite the absence of opposition.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50589(U)
Insurer prevailed
The provider's summary judgment motion was denied because it failed to demonstrate prima facie entitlement to judgment. In the action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without explaining the deficiency in the provider's proof.
Appellate Term, Second Department
Apr 2, 2012
2012 NY Slip Op 50590(U)
Insurer prevailed
The providers' summary judgment motion was denied because they failed to demonstrate prima facie entitlement to judgment. In the action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on New York Hosp. Med. Ctr. of Queens v Statewide Ins. Co. without explaining the deficiency in the providers' proof.
Trial court, Second Department
Apr 23, 2012
2012 NY Slip Op 50732(U)
Provider prevailed
An insurer seeking arbitration disclosure under CPLR 3102 (c) must show extraordinary circumstances making it absolutely necessary to protect its rights. The petitioning insurers sought extensive corporate and financial discovery and stays of pending and future no-fault proceedings, alleging fraudulent incorporation and improper billing by the provider. The Supreme Court, Nassau County, denied the application. The investigators' affidavits were inconclusive and lacked factual detail, many demands were excessively broad and temporally unlimited, and only two arbitrations were actually pending, both involving medical necessity denials. Following Travelers Indem. Co. v United Diagnostic Imaging, P.C., the court noted that the insurers could request disclosure from the arbitrators and had not shown that the materials would then be unavailable.
Trial court, Second Department
Apr 16, 2012
2012 NY Slip Op 50676(U)
Provider prevailed
An insurer may not use an EUO request to demand corporate records concerning a Mallela defense as verification of a claim. The District Court, Nassau County, denied the insurer's summary judgment motion based on the provider's EUO nonappearances, finding the notice palpably improper. Although the insurer established a factual basis and founded belief supporting a possible Mallela defense, 11 NYCRR 65-3.5 (c) permits verification of the claim, and the regulations did not authorize the demanded records or production seven days before the EUO. The nonprecludable eligibility defense could instead be pursued through litigation discovery or a declaratory judgment action. Because summary judgment had stayed discovery under CPLR 3214, the court restored the provider's discovery motion to the calendar for opposition.
Trial court, Second Department
Apr 12, 2012
2012 NY Slip Op 50670(U)
Provider prevailed
The insurer failed to substantiate an objective basis for the assignor's EUO to investigate a suspected staged accident. The District Court, Nassau County, denied summary judgment dismissing the provider's claims based on EUO nonappearance. Under 11 NYCRR 65-3.5 (e), the insurer had to substantiate its objective basis and justification for the request. The court found only unfounded hypothesis and suspicion: the available accident accounts were consistent, and the insurer supplied no evidence of inconsistent injuries, excessive treatment, or relevant prior accidents. The improper EUO request could not support summary judgment. The insurer also failed to establish whether the certified-mail EUO notices were delivered or returned and should have supplied available proof of actual mailing and delivery or nondelivery.
Trial court, Second Department
Apr 11, 2012
2012 NY Slip Op 50616(U)
Provider prevailed
MVAIC's qualification letters did not toll the 30-day claim determination period because they did not seek verification of the claims. The provider established mailing of its equipment bills, and MVAIC acknowledged receipt. MVAIC requested a notarized statement about the vehicle owner's relationship to the assignor and permission to drive. The Civil Court, Kings County, found the requests vague, speculative and directed to qualification rather than claim verification under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1). MVAIC presented no evidence that the assignor owned the vehicle, lacked permission or knew it was stolen, and failed to prove disqualification. The court granted the provider summary judgment and denied MVAIC's cross motion, awarding statutory interest and attorney fees.
