Appellate Division, Fourth Department
Jul 6, 2012
2012 NY Slip Op 05470
The petitioning insurer waived its loss-transfer arbitrability objection by failing to seek a stay before arbitration. It sought vacatur under CPLR 7511 (b), contending that neither vehicle was used principally to transport persons or property for hire under Insurance Law § 5105 (a). The Appellate Division, Fourth Department, reversed, denied the petition, granted the reimbursement-seeking insurer's cross motion, and confirmed the award. Following Matter of Liberty Mut. Ins. Co. (Allstate Ins. Co.), the majority treated the objection as nonarbitrability and held that participation without seeking a stay barred subsequent vacatur on that ground. Even if reached, the majority would uphold the award. Two justices dissented, viewing the defense as a merits issue and finding no rational basis to classify the group-home minivan as a vehicle for hire.
Appellate Term, First Department
Jul 26, 2012
2012 NY Slip Op 51383(U)
Insurer prevailed
The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment. In the provider's action for first-party no-fault benefits, those facts established the insurer's prima facie entitlement to dismissal under Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC. The provider's opposition neither specifically denied the assignor's nonappearance nor otherwise raised a triable issue concerning it. The Appellate Term, First Department, reversed the Civil Court's order denying the insurer's summary judgment motion, granted the motion, and dismissed the complaint.
Appellate Term, Second Department
Jul 25, 2012
2012 NY Slip Op 51448(U)
Provider prevailed
The insurer's reduction of a time-based claim to one unit lacked a factual basis because it never sought verification of the time spent. The provider billed six tests under CPT code 97799; the insurer substituted code 97750 and paid for only 15 minutes because it lacked documentation of duration. The Appellate Term, Second Department, found no triable issue because the insurer arbitrarily selected the minimum time without requesting verification. It expressly left open whether the insurer could substitute the code. The order, insofar as appealed from, was reversed, summary judgment was granted to the provider for the unpaid portion, and the matter was remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a).
Appellate Term, Second Department
Jul 25, 2012
2012 NY Slip Op 51447(U)
Insurer prevailed
The insurer established timely denials and an unrebutted lack of medical necessity through affirmed peer review reports. In the provider's action for assigned no-fault benefits, a claims division employee's affidavit established timely mailing of the denial forms. The peer review reports supplied a factual basis and medical rationale for the conclusion that the billed services were not medically necessary, and the provider did not rebut that showing. The provider's remaining contentions were either unpreserved or without merit. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, First Department
Jul 24, 2012
2012 NY Slip Op 51371(U)
Insurer prevailed
The insurer's detailed peer review established lack of medical necessity, and the provider's unsworn medical reports were inadmissible. The orthopedist's review found no instability or positive orthopedic signs in the assignor's shoulder records and noted that the provider operated on the left shoulder although the initial post-accident chief complaint concerned the right shoulder. The report supplied a factual basis and medical rationale for the insurer's defense. The provider opposed with only an attorney's affirmation and unsworn medical reports, which were insufficient to defeat summary judgment. The Appellate Term, First Department, reversed the Civil Court's order, granted the insurer's summary judgment motion, and dismissed the complaint.
Appellate Term, Second Department
Jul 18, 2012
2012 NY Slip Op 51443(U)
Provider prevailed
Mutually rescheduling an EUO before its scheduled date does not constitute a failure to appear. The insurer denied the provider's assigned no-fault claims for the assignor's alleged EUO nonappearance. Its affidavit showed, however, that the initial EUO had twice been rescheduled by mutual agreement before the respective scheduled dates. Following Vitality Chiropractic, P.C. v Kemper Ins. Co., the insurer did not establish failures to appear at both an initial and a follow-up EUO and therefore did not prove noncompliance with a coverage condition precedent. The Appellate Term, Second Department, affirmed the judgment entered on summary judgment for the provider and denial of the insurer's cross motion, reaching no other issue.
Appellate Term, Second Department
Jul 18, 2012
2012 NY Slip Op 51441(U)
Split result
Conflicting sworn accounts of who supplied the equipment precluded accelerated judgment for either party on the provider's assigned claim. The insurer argued that the durable medical equipment provider could not sue as assignee because the assignor stated under oath that the provider had not supplied the equipment directly. The provider's affidavit asserted that its business practice was to deliver supplies directly to patients and that it followed that practice here. The Appellate Term, Second Department, reversed the judgment for the provider, vacated the portion of the order granting its summary judgment motion, and denied that motion. Denial of the insurer's cross motion to dismiss remained in place.
Appellate Term, Second Department
Jul 18, 2012
2012 NY Slip Op 51442(U)
Provider prevailed
The insurer failed to demonstrate timely service of its summary judgment cross motion four days before the return date. Under CPLR 2215, absent a CPLR 2214 (b) demand, service requires three days' notice, six days if mailed, or four days by overnight delivery. The affidavit neither alleged overnight delivery nor supplied facts establishing it under CPLR 2103 (b) (6). The provider lacked an adequate opportunity to rebut the allegations. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion without considering its merits. It left open whether the provider's notice properly demanded seven days' notice under CPLR 2214 (b).
Appellate Term, Second Department
Jul 18, 2012
2012 NY Slip Op 51444(U)
Insurer prevailed
The insurer's affirmed peer review report established an unrebutted lack of medical necessity for the billed services. The Civil Court found timely denials but denied the insurer's summary judgment motion, leaving medical necessity for trial in the provider's assigned no-fault action. The report supplied a factual basis and medical rationale for the doctor's conclusion, and the provider did not rebut that showing or 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 motion dismissing the complaint.
Appellate Term, Second Department
Jul 18, 2012
2012 NY Slip Op 51445(U)
Insurer prevailed
The provider's medical affirmation failed to rebut peer review conclusions that the supplies lacked medical necessity. The insurer appealed denial of the branch of its summary judgment cross motion seeking dismissal of the second through fifth causes of action. Its two affirmed peer review reports provided a factual basis and medical rationale for finding the supplies medically unnecessary. The provider's opposing doctor's affirmation failed meaningfully to address those conclusions, as required under Pan Chiropractic, P.C. v Mercury Ins. Co. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the second through fifth causes of action.
Appellate Term, First Department
Jul 16, 2012
2012 NY Slip Op 51305(U)
Split result
MVAIC raised a triable issue whether the assignor's injuries arose from a hit-and-run accident triggering the 24-hour notice requirement. The providers established prima facie entitlement to judgment on their claims for first-party no-fault benefits. MVAIC's opposing submissions, however, raised an issue concerning the applicability of the accident-reporting obligation under Insurance Law § 5208 (a) (2) (A). The Appellate Term, First Department, modified the order by denying the providers' cross motion for summary judgment and otherwise affirmed, leaving the denial of MVAIC's motion for summary judgment dismissing the complaint in place.
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51346(U)
Insurer prevailed
A provider's appearance at a duly requested EUO is a condition precedent to the insurer's liability under the policy. The insurer established timely mailing of the scheduling letters and denial through affidavits describing mailing procedures and linking an article number on a letter to its mailing certificate. An attorney responsible for the EUOs established the provider's failure to appear at either scheduled EUO. Under 11 NYCRR 65-1.1, that nonappearance defeated coverage. Because the provider did not claim to have responded to the requests, its complaints about them would not be heard. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint entered on the insurer's summary judgment cross motion.
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51348(U)
Provider prevailed
The insurer failed to establish timely mailing of EUO notices or tolling of the 30-day claim determination period. Mailing certificates lacked a knowledgeable affidavit establishing actual mailing or proper office mailing procedures, defeating proof of tolling under 11 NYCRR 65-3.8 timely denial, and freedom from preclusion. The Appellate Term, Second Department, affirmed denial of the insurer's dismissal motion for EUO nonappearance on a different ground. It cited All Boro Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., the companion appeal decided the same day, No. 2010-1767 K C. It also rejected the Civil Court's requirement of conspicuous highlighting in EUO letters under 11 NYCRR 65-3.5 (b) and (e).
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51350(U)
Insurer prevailed
The insurer established deductible and fee schedule defenses to three claims and nonreceipt of the claim underlying the second cause of action. Its unopposed motion showed a policy deductible under 11 NYCRR 65-1.6 and full fee schedule payment for the first, third, and fourth causes of action. Although some denial pages were omitted, the submitted pages specified the grounds without risking confusion or prejudice. For the second cause of action, the claims representative's affidavit established nonreceipt beyond a conclusory denial, and no sworn statement from someone with personal knowledge attested to submission. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51347(U)
Insurer prevailed
Denial forms offered to show that claims were denied, rather than to prove their contents, need not qualify as business records. The provider challenged summary judgment dismissing its assigned no-fault action, arguing that the insurer had not established admissibility of its denial forms under CPLR 4518. The forms were offered to show that denials had been sent and the claims denied, not for the truth of their assertions, so the business records foundation was unnecessary. The provider's remaining arguments lacked merit or were improperly raised for the first time on appeal. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment.
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51351(U)
Insurer prevailed
The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services. A cashed check proved payment in full, which the provider did not dispute. Three claims were submitted more than 45 days after services, contrary to 11 NYCRR 65-1.1; their denials offered an opportunity to justify lateness under 11 NYCRR 65-3.3 (e), but the provider supplied no justification. Two affirmed IME reports provided a factual basis and medical rationale for denying the remaining services, and the provider's doctor's affidavit did not meaningfully rebut them. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Jul 13, 2012
2012 NY Slip Op 51349(U)
Insurer prevailed
The provider's 38-day discovery delay triggered stipulated preclusion and prevented it from establishing its prima facie case. The parties' written stipulation required verified responses within 60 days and barred trial evidence for noncompliance. Although not so-ordered, the stipulation was subscribed by counsel under CPLR 2104 and enforceable as a contract. The record showed no fraud, collusion, mistake, accident, inequity, or unconscionable advantage warranting relief from its terms. The Appellate Term, Second Department, rejected Civil Court's finding that the delay was de minimis, reversed the order denying the insurer's motion to dismiss, and granted dismissal because the provider could not prove its claim without trial evidence.
Appellate Term, Second Department
Jul 12, 2012
2012 NY Slip Op 22200
Medical records supporting a peer review are admissible to show information conveyed to the insurer rather than the truth of their contents. At a trial limited to medical necessity, the Civil Court excluded records underlying the insurer's peer review and granted judgment to the provider. Under 11 NYCRR 65-3.8 (b) (4), an insurer may deny a claim based on a peer review assessing necessity on the assumption that the submitted medical information is true. The records were therefore offered for a nonhearsay purpose, and testimony sufficiently established their submission to the insurer. The Appellate Term, Second Department, reversed the judgment and remitted for a new trial on the medical-necessity defense.
Appellate Term, Second Department
Jul 12, 2012
2012 NY Slip Op 51335(U)
Split result
The insurer failed to explain why it reduced some CPT code 97811 claims but denied others entirely for missing time documentation. The Appellate Term, Second Department, upheld dismissal of claims under code 97810 and partially paid code 97811 claims because the insurer proved full payment under the chiropractors' acupuncture fee schedule. For wholly denied code 97811 claims, no expert affidavit explained the disparate fee schedule treatment, defeating the insurer's prima facie showing. The provider also failed to establish entitlement to summary judgment on those claims. The judgment was reversed, dismissal of only those claims was vacated, and they were remitted for further proceedings; one judge dissented, finding the provider's challenge unpreserved. A claim excluded from both motions was not addressed.
Appellate Term, Second Department
Jul 12, 2012
2012 NY Slip Op 51338(U)
Insurer prevailed
The provider's action was premature because unanswered verification requests tolled the insurer's time to pay or deny the claims. The insurer's claims representative established timely mailing of the initial and follow-up verification requests and the provider's failure to respond before commencing the action for assigned first-party no-fault benefits. Under 11 NYCRR 65-3.8 (a), the insurer's payment or denial period had not yet elapsed. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted summary judgment dismissing the complaint as premature.
Appellate Term, Second Department
Jul 12, 2012
2012 NY Slip Op 51336(U)
Provider prevailed
The insurer failed to establish two IME nonappearances because its rescheduling letter could reflect a mutual agreement to reschedule. The insurer sought summary judgment based on the assignor's alleged failure to attend an initial and a follow-up IME. The scheduling service's president stated that the assignor called to cancel within 48 hours before the first IME, and the service mailed a letter before that appointment rescheduling it. The insurer did not establish as a matter of law that the letter was not a mutual rescheduling under Vitality Chiropractic, P.C. v Kemper Ins. Co. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the insurer's cross motion under CPLR 3212 (b).
Appellate Term, Second Department
Jul 12, 2012
2012 NY Slip Op 51337(U)
Provider prevailed
The insurer's untimely follow-up IME notice failed to toll the claim determination period, precluding its IME and fee defenses. Although the initial notice was timely mailed, the follow-up notice after the assignor's nonappearance was untimely under 11 NYCRR 65-3.6 (b) and 65-3.8 (j). The insurer therefore failed to toll the 30-day period under 11 NYCRR 65-3.5 (a) and Insurance Law § 5106 (a). Following Westchester Med. Ctr. v Lincoln Gen. Ins. Co., its untimely denials precluded defenses based on IME nonappearance and improper fees. The Appellate Term, Second Department, affirmed the judgment for the provider entered upon denial of the insurer's summary judgment motion and grant of the provider's cross motion.
Trial court, Second Department
Jul 26, 2012
2012 NY Slip Op 51392(U)
Provider prevailed
The declaratory judgment plaintiff failed to support its fraud allegations with evidence sufficient to enjoin the provider's no-fault proceedings. It sought relief from liability based on alleged staged accidents and fraudulent billing, and moved to restrain the provider's suits, arbitrations, and other proceedings. Under CPLR 6301, preliminary relief required clear and convincing evidence of likely success, irreparable injury, and favorable equities. The complaint's verifier lacked knowledge of the alleged facts, and no affidavit from a person with personal knowledge or other evidentiary proof supported the allegations. The Supreme Court, Queens County, found no showing of likely success, denied the preliminary injunction, and discontinued the existing temporary restraining order.
Trial court, Second Department
Jul 5, 2012
2012 NY Slip Op 51227(U)
A timely MV-104 filing with the DMV Commissioner may satisfy the 24-hour notice requirement for a hit-and-run claim against MVAIC. The injured cyclist sought leave to sue under Insurance Law § 5218. Although the submitted form was dated the day after the accident, no receipt, time stamp, or filing details established when it reached the Commissioner. The Supreme Court, Queens County, granted the petition only to the extent of ordering a credibility hearing on compliance with Insurance Law § 5208 (a) (2) (A). The court rejected MVAIC's residency objection under Insurance Law § 5202 (b), finding the claimant's affidavit and addresses in the accident report and medical records sufficient and unrebutted.
