Appellate Division, First Department
Jun 19, 2012
2012 NY Slip Op 04925
Insurer prevailed
The transit authority's statutory obligation to provide no-fault benefits is subject to the three-year limitations period in CPLR 214 (2). Following M.N. Dental Diagnostics, P.C. v New York City Tr. Auth., the Appellate Division, First Department, found the provider's claim time-barred. It reversed the Appellate Term's order, which had overturned the Civil Court's dismissal, granted the transit authority's motion to dismiss, and dismissed the complaint. The provider's remaining contentions were found unavailing.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51289(U)
Insurer prevailed
The provider's claim was barred by collateral estoppel because a prior jury verdict resolved whether the injuries arose from an insured incident. The assignor had sued the insurer's insured for personal injuries, alleging that the insured's vehicle struck the assignor. The jury found no contact, and judgment dismissed that action. In the no-fault action, the insurer submitted the prior complaint, verdict transcript and judgment, establishing that the identical coverage issue had already been decided. Collateral estoppel requires identity of a necessarily decided, decisive issue and a full and fair opportunity to litigate. The Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (5).
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51294(U)
Provider prevailed
One provider's arbitration does not bar another provider's action on claims assigned by the same person and arising from the same accident. The insurer sought dismissal based on another provider's arbitration election or collateral estoppel from an award finding the assignor's EUO nonappearance. The Appellate Term, Second Department, distinguished Roggio v Nationwide Mut. Ins. Co. because this provider had not elected arbitration. The insurer also failed to establish timely denial on the EUO ground, failing to show that its defense was not precluded, and failed to show that the provider was a party or in privity with a party to the arbitration, defeating collateral estoppel. The order was reversed and the insurer's motion to dismiss denied.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51286(U)
Provider prevailed
The insurer's peer review report lacked a factual basis and medical rationale because it merely asserted insufficient documentation. The provider sought assigned first-party no-fault benefits for supplies furnished to the assignor. In moving for summary judgment, the insurer submitted an affirmed peer review report that did not substantiate its medical necessity defense. The insurer also failed to demonstrate that it had sought the missing information through a verification request. Following Midisland Med., PLLC v Allstate Ins. Co., the Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51287(U)
Insurer prevailed
The provider failed to rebut peer review reports establishing that the medical supplies lacked medical necessity. In the action for assigned no-fault benefits, The Civil Court, Kings County, found that both parties had established their prima facie cases and left medical necessity as the sole trial issue. The insurer's affirmed peer review reports supplied factual bases and medical rationales for the respective doctors' conclusions. The provider's opposing doctor's affirmation failed to meaningfully address or rebut those conclusions. 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
Jun 28, 2012
2012 NY Slip Op 51290(U)
Insurer prevailed
The insurer proved full fee-schedule payment for earlier acupuncture claims and lack of medical necessity for later treatment. Claims employees' affidavits established timely denials and payment of the earlier services under the workers' compensation fee schedule for chiropractors, following Great Wall Acupuncture, P.C. v Geico Ins. Co. For later services, an IME report supported by the examining acupuncturist's affidavit concluded that the assignor's injuries had resolved and further treatment was unnecessary. The provider's affidavit failed to meaningfully address or rebut those conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the acupuncture claims under review.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51288(U)
Insurer prevailed
The provider's failure to comply with a signed discovery stipulation precluded proof of its claims and required striking the complaint. The stipulation required responses to outstanding discovery demands within 30 days or preclusion as to unprovided items. Although it was not so-ordered and did not operate as a conditional preclusion order, the attorneys' signatures made it enforceable under CPLR 2104 and contract principles. The provider failed to answer a demand concerning submission of no-fault claims and copies of those claims. With no basis to deny enforcement, the provider could not establish its prima facie case. The Appellate Term, Second Department, reversed and granted the insurer's unopposed motion to strike.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51291(U)
Insurer prevailed
The insurer proved full fee-schedule payment for earlier acupuncture services and lack of medical necessity for later services. Its claims employee established timely mailing of the denials. Following Great Wall Acupuncture, P.C. v GEICO Ins. Co., payment under the workers' compensation fee schedule for chiropractors satisfied the earlier claims. A sworn IME report supported denial of the later claims, and the provider's acupuncturist failed to meaningfully address or rebut its conclusions. The Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider's motion and granted the insurer's cross motion for summary judgment dismissing all claims under review. A claim for one date of service was outside the appeal.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51292(U)
Insurer prevailed
The insurer established that it had fully paid the disputed acupuncture claims under the workers' compensation fee schedule. In this action for assigned no-fault benefits, the insurer's affidavits also established timely denials of the claims billed under CPT codes 97810 and 97811. Following Great Wall Acupuncture, P.C. v GEICO Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, denied the provider summary judgment on those claims in its first through third causes of action, and granted the insurer summary judgment dismissing the second and third causes of action and the disputed portion of the first.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51293(U)
Split result
The treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form. The insurer's two sworn peer review reports supplied a factual basis and medical rationale for its lack-of-medical-necessity defense. The provider's letter nevertheless created a factual question. The insurer's appellate objection that the letter was affirmed rather than sworn was waived because it had not raised that objection in the Civil Court. The Appellate Term, Second Department, reversed the judgment dismissing the complaint, vacated the portion of the order granting the insurer's summary judgment cross motion, and denied that cross motion. Denial of the provider's summary judgment motion remained in place.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51295(U)
Provider prevailed
The insurer's summary judgment cross motion on the sixth through tenth causes of action was denied because medical necessity remained disputed. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on a triable issue of fact concerning the acupuncture services' medical necessity under Zuckerman v City of New York.
Appellate Term, Second Department
Jun 28, 2012
2012 NY Slip Op 51296(U)
Split result
The insurer established lack of medical necessity after an IME cutoff, but failed to obtain dismissal of two claims. A sworn IME report provided a factual basis and medical rationale for finding chiropractic treatment after March 22, 2008 unnecessary, and the provider did not rebut it. The insurer proved timely denials for the claims dismissed. It did not establish lack of medical necessity for services rendered November 12, 2007, before the IME, and its motion failed to address the September 5, 2008 claim or establish timely denial of it. The Appellate Term, Second Department, modified the order to grant the insurer summary judgment dismissing all claims except those two and otherwise affirmed.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51268(U)
Split result
Untimely denials barred the insurer's EUO nonappearance defense on the first 14 claims, but timely denials supported dismissal of claims 15 and 16. The Appellate Term, Second Department, reversed the provider's judgment following a CPLR 4404 (b) motion. Under 11 NYCRR 65-1.1 (b), the insurer need not produce the policy to establish the mandatory EUO provision. Applying 11 NYCRR 65-3.5 (b) and 65-3.8 (j), the first EUO request, sent more than 30 days after receipt of claims 1 through 13, did not toll those claims; claim 14's denial was also untimely. Claim 15 was tolled and timely denied after nonappearance; claim 16 was denied within 30 days of receipt. The court directed dismissal of those two claims and remitted for interest, attorney fees, and judgment on claims 1 through 14.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51276(U)
Insurer prevailed
An insurer need not advise an applicant that reasonable justification will excuse failure to appear for an EUO. The insurer established timely mailing of EUO scheduling letters and denials through its investigators' affidavits, and an attorney responsible for the EUOs established the provider's nonappearance at both sessions. Appearance is a condition precedent to liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The court found no regulatory basis for that notice requirement, referring to 11 NYCRR 65-3.3 (e). The Appellate Term, Second Department, affirmed the judgment dismissing the complaint on the insurer's motion and denying the provider's cross motion.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51281(U)
Insurer prevailed
The insurer established late notice of the accident, and the provider offered neither contrary proof nor a reasonable justification. The no-fault examiner's affidavit showed that the insurer first learned of the accident through an NF-2 form dated more than 30 days afterward. Under 11 NYCRR 65-1.1, written notice was required within 30 days. The provider merely speculated that another source might have supplied timely notice and failed to justify lateness despite the opportunity stated in the denials under 11 NYCRR 65-1.1 and 65-2.4 (b). The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and dismissal on the insurer's cross motion, without reaching the provider's summary judgment argument.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51272(U)
Split result
The insurer's discovery responses, at most four days late, substantially complied with the parties' stipulation and did not warrant preclusion. The stipulation, signed by counsel under CPLR 2104 but not so-ordered, required responses within 60 days and provided for preclusion upon noncompliance. The Appellate Term, Second Department, exercised its discretion to deny preclusion, reversed the provider's judgment, and vacated the grant of its motion. Neither side established entitlement to summary judgment. The provider's affidavit failed to establish admissibility of its documents under CPLR 4518, while the insurer's litigation examiner failed to establish when the denial was mailed. The denial of the insurer's amended cross motion remained undisturbed.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51269(U)
Insurer prevailed
The insurer proved timely mailing of EUO notices and denials, and the provider's challenge to nonappearance proof was improperly raised. The provider appealed summary judgment dismissing its assigned no-fault claims. Affidavits from the insurer's litigation examiner, investigative unit and mail room employees established timely mailing of the scheduling letters and denials. EUO attendance is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider first challenged proof of nonappearance in its appellate reply brief and had conceded nonattendance in its opposition papers. The Appellate Term, Second Department, affirmed the insurer's summary judgment dismissal.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51270(U)
Split result
The provider and insurer failed to establish entitlement to summary judgment on the first through fifth causes of action. The billing supervisor's affidavit failed to show untimely payment or denial, or timely denials that were legally deficient, under Insurance Law § 5106 (a). The insurer failed to prove timely mailing of initial and follow-up verification requests to the assignor. It therefore did not establish tolling under 11 NYCRR 65-3.8 or timely denials preserving its IME nonappearance defense. The Appellate Term, Second Department, reversed the provider's judgment and denied those branches of its motion, while leaving denial of the insurer's cross motion undisturbed.
Appellate Term, Second Department
Jun 27, 2012
2012 NY Slip Op 51273(U)
Insurer prevailed
The insurer's affidavits established timely mailing of EUO scheduling letters and denials based on the provider's nonappearance. The provider challenged the insurer's mailing proof in appealing summary judgment dismissing its assigned no-fault claims. Affidavits from the insurer's investigative unit team manager, mail room employee and bulk mail vendor were sufficient to establish timely mailing. EUO appearance is a condition precedent to policy liability under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The Appellate Term, Second Department, affirmed the insurer's summary judgment dismissal and rejected the provider's remaining contention without elaboration.
Appellate Term, First Department
Jun 25, 2012
2012 NY Slip Op 51165(U)
Provider prevailed
An insurer cannot deny a no-fault claim on the ground that another carrier is primarily liable. Under 11 NYCRR 65-3.12 (b) and M.N. Denatal Diagnostics, PC v Government Empl. Ins. Co., discovery concerning that defense was immaterial and the demands were palpably improper. The insurer also supplied no case-specific allegations supporting its fraudulent-incorporation defense, so discovery on that issue would be a fishing expedition based on suspicion. The Appellate Term, First Department, reversed the order, insofar as appealed from, and denied the insurer's motion to strike the provider's notice of trial and compel discovery.
Appellate Term, First Department
Jun 25, 2012
2012 NY Slip Op 51160(U)
Insurer prevailed
The insurer established timely and proper mailing of IME and EUO notices and the assignor's failure to appear. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, those showings established prima facie entitlement to summary judgment dismissing the provider's action for assigned first-party no-fault benefits. The provider did not specifically deny the assignor's nonappearance or raise a triable issue concerning nonappearance, mailing or the reasonableness of the notices. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment and dismissed the complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51058(U)
Provider prevailed
The insurer's untimely follow-up EUO request failed to toll the claim-determination period, making its denial untimely. On December 2, 2008, the insurer requested an EUO for January 8, 2009; after nonappearance, it mailed its follow-up on February 12, 2009. The follow-up was untimely under 11 NYCRR 65-3.6 (b), so the 30-day period under 11 NYCRR 65-3.8 (a) (1) was not tolled. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion based on EUO nonappearance. The insurer did not challenge the provider's prima facie case, whose propriety the court did not decide, and remaining contentions were not reached.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51064(U)
Provider prevailed
Discovery preclusion under CPLR 3126 requires a clear showing of willful or contumacious noncompliance. The insurer sought disclosure under CPLR 3124 or sanctions after serving interrogatories and expert disclosure demands six weeks earlier. The provider supplied responses with its opposition, but Civil Court precluded related trial evidence because an employee, rather than a corporate owner or officer, answered the interrogatories. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied preclusion. The insurer had not shown willful or contumacious conduct, and a corporate employee with the requisite knowledge and data could properly respond on the corporation's behalf.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51060(U)
Insurer prevailed
The insurer established timely and valid policy cancellation before the accident, and the provider raised no triable issue. An insurer seeking summary judgment on cancellation bears the initial burden of demonstrating compliance with Vehicle and Traffic Law § 313. A prima facie showing shifts the burden to the party claiming coverage to establish noncompliance with statutory requirements governing form and procedure. The insurer's submissions satisfied that burden, and the provider's opposition did not raise a factual issue concerning cancellation's validity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the assigned no-fault complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51061(U)
Insurer prevailed
The provider's practitioner failed to meaningfully rebut two peer review reports establishing lack of medical necessity. The Civil Court, Kings County, denied both sides' summary judgment applications and identified medical necessity as the sole trial issue in the assigned no-fault action. Each affirmed peer review report set out a factual basis and medical rationale for the doctor's conclusion that the services were unnecessary. The opposing practitioner's affidavit did not meaningfully 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
Jun 11, 2012
2012 NY Slip Op 51062(U)
Insurer prevailed
The insurer established full payment for the provider's acupuncture services under the workers' compensation fee schedule. The provider sought assigned first-party no-fault benefits and obtained summary judgment in Civil Court, which implicitly denied the insurer's cross motion to dismiss the complaint. The insurer's employee affidavit demonstrated payment in accordance with the applicable fee schedule, following Great Wall Acupuncture, P.C. v GEICO Ins. Co. The Appellate Term, Second Department, reversed the order, denied the provider's motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51056(U)
Insurer prevailed
The provider failed at trial to prove timely and proper mailing of its claim form, and dismissal was affirmed. The owner's certified-mail proof lacked material information: the mailing receipt omitted postage and fees, clerk identification and a date, while the return receipt lacked a recipient's signature and delivery date. The insurer's witness testified that the form was received only after suit began, about three years after the purported mailing. Giving substantial deference to credibility findings, the Appellate Term, Second Department, found the trial determination supported by a fair interpretation of the evidence and affirmed dismissal. Under CPLR 5520 (c), the notice appealing the decision was deemed a premature notice appealing the judgment.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51057(U)
Provider prevailed
The insurer's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements. Although the claims examiner established timely mailing of medical-necessity denials, the provider preserved its objection to the reports' form. The psychologist could not affirm the reports under CPLR 2106. One report bore a notary's stamp and signature but lacked an attestation that the psychologist appeared before the notary and was duly sworn, failing CPLR 2309 (b). Without admissible reports, the insurer failed to make a prima facie showing shifting the burden to the provider. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51063(U)
Split result
The parties' conflicting accounts of equipment delivery precluded summary judgment on the first and second causes of action. The Civil Court, Queens County, accepted the insurer's allegation that equipment was not delivered directly to the assignor, but the provider's affidavit squarely contradicted it. Under Sillman v Twentieth Century-Fox Film Corp., summary judgment requires issue finding rather than issue determination. The Appellate Term, Second Department, reversed the provider's judgment on the first and second causes of action, leaving both sides without summary judgment. For the third, the insurer's conclusory allegations of insufficient verification responses did not warrant dismissal. The order was modified to leave only outstanding verification for trial, with no record basis to question the requests' propriety.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51066(U)
Provider prevailed
The insurer failed to establish its IME nonappearance defense because its affidavits identified different entities as the IME scheduler. The Civil Court, Queens County, had found timely and proper denial established and left the IME defense as the sole trial issue. The insurer's litigation examiner stated that it asked one entity to schedule the assignor's IME, but no employee of that entity supplied an affidavit. Instead, an employee of an entity managing a medical practice's administrative requirements stated that the insurer hired that practice to schedule the IMEs. This discrepancy defeated the insurer's showing. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51067(U)
Insurer prevailed
The provider failed to establish misrepresentation warranting vacatur of a dismissal for noncompliance with a discovery order. A conditional order required production of the principal owner's personal tax returns within 30 days and provided for dismissal with prejudice upon an affidavit of noncompliance and settlement of an order. The provider did not contest the insurer's noncompliance submission or proposed dismissal order. Seeking relief under CPLR 5015 (a) (3), the provider failed to demonstrate that it had produced the returns. Its appellate objection to the timing of order settlement under 22 NYCRR 208.33 (a) was unpreserved. The Appellate Term, Second Department, affirmed denial of vacatur, leaving the dismissal with prejudice intact.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51068(U)
Insurer prevailed
The insurer's examining chiropractors established IME nonappearance, and the provider's counsel raised no triable issue in opposition. The Civil Court, Kings County, had found that both sides established their prima facie cases and identified the assignor's attendance at scheduled IMEs as the sole trial issue. Both examining chiropractors submitted affidavits stating that the assignor failed to appear. The provider opposed through counsel's affirmation and did not challenge the finding that the insurer was otherwise entitled to judgment. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51071(U)
Provider prevailed
The insurer's summary judgment motion based on lack of medical necessity was denied because its peer review showing was insufficient. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, stating only that the affirmed peer review report failed to clearly establish a sufficient medical rationale and factual basis to demonstrate that the services lacked medical necessity.
Appellate Term, Second Department
Jun 11, 2012
2012 NY Slip Op 51074(U)
Insurer prevailed
The insurer proved timely mailing of IME notices and a denial, as well as the assignor's failure to attend the scheduled IMEs. An employee of the outside scheduling entity established mailing of the notices through standard office practices and procedures. The insurer's claims examiner established timely mailing of the denial based on nonappearance, and the examining physicians' affirmations established the missed IMEs. Those submissions established entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider opposed only through counsel's affirmation, which raised no triable issue. The Appellate Term, Second Department, reversed and granted the insurer summary judgment dismissing the complaint.
Trial court, Second Department
Jun 18, 2012
2012 NY Slip Op 51106(U)
Provider prevailed
A substitute medical expert may support a medical necessity defense at trial without admission of the underlying peer review report. The District Court, Nassau County, denied the provider's directed verdict motion, following Appellate Term precedent permitting expert testimony with a facially sufficient factual basis and medical rationale, limited to the original report's grounds. The report was consulted only to restrict the testimony's scope. The insurer nevertheless failed to carry its burden. Cross-examination undermined its expert's rationale that EMG/NCV testing would not aid treatment during conservative care. The treating provider credibly explained that the tests identified nerve damage and informed treatment and possible surgery. The court rendered judgment for the provider.
Trial court, Second Department
Jun 15, 2012
2012 NY Slip Op 51088(U)
Insurer prevailed
The provider's failure to object to improper verification demands left the payment period tolled and its claim premature. The insurer proved timely mailing of EUO notices, verification requests and denials, and the provider neither responded nor attended either EUO. Although advance demands for corporate and financial documents exceeded permissible verification under 11 NYCRR 65-3.5 (a) and (b), the provider had to object in writing rather than remain silent. Without an objection, the payment period remained tolled under 11 NYCRR 65-3.8. Nonappearance also violated the condition precedent under 11 NYCRR 65-1.1. The District Court, Suffolk County, granted the insurer's motion under CPLR 3211 (a) (1) and (7) and dismissed the complaint.
Trial court, First Department
Jun 13, 2012
2012 NY Slip Op 51190(U)
The bus company's petition to vacate a loss-transfer arbitration award was untimely under CPLR 7511 (a). The Supreme Court, New York County, denied the petition and confirmed the award favoring the workers' compensation carrier under CPLR 7511 (e). The bus company sought judicial review more than 90 days after receiving the award, arguing that a later letter rejecting its attempted administrative appeal started the period anew. Under 11 NYCRR 65-4.11 (a) (3), the PIP panel's decision was final and binding, with no rehearing or appeal apart from correction of clerical or typographical errors. The letter was not an award. The award was electronically signed, and the court did not reach the substantive coverage or liability challenges.
Trial court, Second Department
Jun 6, 2012
2012 NY Slip Op 51001(U)
Provider prevailed
Corporate-status document demands directed at a Mallela defense do not toll the claim payment deadline as verification requests. The District Court, Suffolk County, denied the insurer's premature-action dismissal motion and granted the provider's summary judgment cross motion. The affidavits failed to establish timely mailing through personal knowledge or sufficiently detailed office procedures. Independently, ownership and lease demands exceeded claim verification under 11 NYCRR 65-3.5 (c), and the insurer showed no good-faith basis or good cause for them. Such discovery could be pursued after joinder or through a declaratory judgment action. The provider timely objected and advised it lacked the documents, satisfying 11 NYCRR 65.15. The demands did not toll the 30-day payment-or-denial period, and the insurer had issued no denial.
Trial court, Second Department
Jun 5, 2012
2012 NY Slip Op 51032(U)
Insurer prevailed
The insurer's factual allegations, including the provider owner's federal indictment, warranted fraudulent-incorporation discovery. The provider failed to respond or timely object under CPLR 3120 and 3122 and therefore owed disclosure except for palpably improper or privileged matters. Under Mallela, fraudulent incorporation is a nonwaivable defense; lack of particularity in the answer did not bar discovery. The insurer supplied sufficient allegations concerning fraudulent clinics and did not need a separate good-cause showing for material and necessary disclosure. The District Court, Suffolk County, granted relief under CPLR 3124 and 22 NYCRR 212.17 (c), deemed any filed notice of trial stricken, denied protection under CPLR 3103, and directed responses and the owner's deposition.
Trial court, Second Department
Jun 4, 2012
2012 NY Slip Op 22149
A provider's reasoned objection to a verification request preserves its propriety for determination by the trier of fact. The insurer sought dismissal because leases and management agreements remained outstanding; the provider had supplied corporate documents and challenged the remaining demands. Applying 11 NYCRR 65-3.2 (c), 65-3.5 (c), and Mallela, the District Court, Nassau County, required an articulated, good-faith factual basis for seeking corporate-ownership material. The insurer's asserted grounds did not withstand scrutiny, and its summary judgment motion was denied, without precluding a Mallela defense or declaratory judgment action supported by good faith. The provider's cross motion was also denied because it failed to establish that its claim documents were business records under CPLR 4518 (a).
