Appellate Division, Second Department
Oct 17, 2012
2012 NY Slip Op 06902
Provider prevailed
An insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim. The provider's claim forms identified the treating professionals as independent contractors. Under 11 NYCRR 65-3.11 (a), a professional corporation cannot recover assigned benefits for services rendered by independent contractors rather than its owners or employees. However, following Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., the defense concerns standing, not absence of coverage, and requires timely denial under Insurance Law § 5106 (a). The Appellate Division, Second Department, reversed the Appellate Term's order and Civil Court judgment and denied the insurer's summary judgment motion. The court left pleading waiver and fraudulent misrepresentation unresolved and declined to address alleged claim-form errors.
Appellate Term, Second Department
Oct 25, 2012
2012 NY Slip Op 52079(U)
Split result
The provider's summary judgment motion failed on medical necessity, but denial timeliness remained disputed for one claim. The insurer established mailing procedures and a timely medical-necessity denial for services rendered November 16, 2007. For services rendered October 30, 2007, a discrepancy between the provider's asserted mailing date and the insurer's asserted receipt date created a factual issue about denial timeliness. Two affirmed peer reviews supplied factual bases and medical rationales that rebutted the provider's medical-necessity letter. The Appellate Term, Second Department, modified the order, insofar as appealed from, by vacating the timely-denial finding for the October claim and otherwise affirmed, leaving the provider's motion denied.
Appellate Term, Second Department
Oct 25, 2012
2012 NY Slip Op 52080(U)
Insurer prevailed
The insurer established timely denial and lack of medical necessity, while the provider's psychologist failed to rebut the peer reviews. Contrary to the Civil Court's finding, the insurer's affidavit sufficiently established timely mailing of the denial forms. Two sworn peer review reports each supplied a factual basis and medical rationale for finding the psychological services unnecessary. The opposing psychologist's affidavit did not meaningfully address the reports' conclusions and therefore raised no triable issue. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 25, 2012
2012 NY Slip Op 52081(U)
Insurer prevailed
The provider's evidentiary challenge failed because its assignors' NF-2 forms confirmed that the accident occurred in North Carolina. In seeking assigned no-fault benefits, the provider challenged the admissibility of the insurer's summary judgment evidence, arguing that an uncertified police report did not establish the accident's location. Both assignors' NF-2 forms supplied that fact. The provider's remaining contentions also lacked merit, and it raised no triable issue. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion.
Appellate Term, Second Department
Oct 18, 2012
2012 NY Slip Op 52047(U)
Insurer prevailed
The insurer's severance motion was warranted because claims involving seven assignors and six accidents raised few common issues of law or fact. The provider brought one action for assigned no-fault benefits, and the insurer sought seven separate actions under CPLR 603. The denial grounds varied among the claims, including IME nonappearance, lack of coverage, and untimely submission of claim forms. Those differences supported severance under Radiology Resource Network, P.C. v Fireman's Fund Ins. Co. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granted severance of each assignor's claims into a separate action.
Appellate Term, Second Department
Oct 18, 2012
2012 NY Slip Op 52046(U)
Insurer prevailed
The provider's third-party objection to IME requests failed because the letters clearly stated they were sent on the insurer's behalf. The provider appealed summary judgment dismissing four claims for assigned no-fault benefits based on the assignor's failure to appear for IMEs. Its argument that the assignor need not respond to requests from a third party lacked merit in light of the scheduling letters' express identification of the insurer. The Appellate Term, Second Department, deemed the appeal taken from the subsequent judgment under CPLR 5501 (c) and affirmed the dismissal of that portion of the complaint.
Appellate Term, Second Department
Oct 18, 2012
2012 NY Slip Op 52049(U)
Provider prevailed
The insurer's motion to vacate an unopposed summary judgment order was denied for failure to show a reasonable excuse. The Appellate Term, Second Department, affirmed, finding no abuse of discretion under CPLR 5015 (a) because the insurer did not justify its failure to submit written opposition to the provider's motion for assigned no-fault benefits.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 22300
Insurer prevailed
An unvacated default declaratory judgment has res judicata effect in a provider's pending no-fault action. While the benefits action was pending, the insurer obtained a default declaration that the provider was improperly licensed under Business Corporation Law §§ 1507 and 1508 and Education Law § 6507 (4) (c), and that no benefits were payable in any current or future proceeding. The provider's action fell within the judgment's unambiguous reference to current proceedings. The default did not prevent the declaration from constituting a conclusive final determination, and a contrary judgment could impair rights it established. The Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 22301
Provider prevailed
The provider was not bound by a declaratory judgment against its assignor because the assignment preceded that action. The insurer obtained a declaration that it owed no coverage based on the assignor's alleged misrepresentation of residence, then sought summary judgment dismissing the provider's dental-services claim. The provider had neither been named nor served in the declaratory judgment action and was not then in privity with the assignor. It otherwise lacked a full and fair opportunity to defend its interests. The Appellate Term, Second Department, affirmed the denial of the insurer's motion, following Gramatan Home Invs. Corp. v Lopez and Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 51953(U)
Insurer prevailed
An assignor's appearance at an IME is a condition precedent to the insurer's liability under the policy. The Civil Court limited the trial issue to whether the assignor failed to appear for scheduled IMEs. The insurer submitted an affidavit from an employee of its scheduling entity and affirmations from the physicians who were to conduct the examinations, establishing nonappearance. The provider submitted only counsel's affirmation and raised no triable issue; it also 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 summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 51954(U)
Insurer prevailed
The insurer established IME nonappearance, the sole issue left for trial on the provider's third through sixth causes of action. The affidavit of the medical professional scheduled to conduct the acupuncture/chiropractic IMEs established that the assignor failed to appear. The provider did not cross-appeal from the Civil Court's limitation of the trial issue to nonappearance, which effectively found the insurer otherwise entitled to judgment on those causes of action. Applying 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 branches of the insurer's summary judgment motion dismissing the third, fourth, fifth, and sixth causes of action.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 51955(U)
Insurer prevailed
The insurer established the assignor's IME nonappearance and timely mailing of scheduling letters and denials; opposition raised no triable issue. An employee of the entity scheduling the IMEs established mailing through its standard office practices. The examining physician affirmed that the assignor failed to appear, and the insurer's litigation examiner established timely mailing of denial forms. This proof established entitlement to judgment under Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. The provider's attorney affirmation and billing manager's affidavit did not create a factual dispute. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Oct 16, 2012
2012 NY Slip Op 51965(U)
Provider prevailed
Common-law retroactive rescission of a Connecticut automobile policy does not defeat innocent third-party victims' rights. The policy was issued in Connecticut to an insured who purportedly resided there for a vehicle purportedly garaged there; its only New York connection was the assignors' accident in New York. Connecticut law therefore controlled under New York conflict-of-law rules. Following Munroe v Great American Ins. Co., the insurer's common-law rescission right did not survive Connecticut's automobile insurance statutes as to innocent third parties. The Appellate Term, Second Department, affirmed the order granting the provider summary judgment and denying the insurer's rescission-based cross motion; the provider's prima facie showing was unchallenged.
Appellate Term, Second Department
Oct 11, 2012
2012 NY Slip Op 51968(U)
Insurer prevailed
The insurer's peer review reports established lack of medical necessity, and the provider submitted no medical evidence raising a triable issue. The insurer's claims examiner established timely mailing of denial forms asserting that defense. Its affirmed peer review reports supplied a factual basis and medical rationale for the opinion that the services furnished to the assignor were unnecessary, establishing entitlement to summary judgment. The provider's opposition did not supply sufficient medical evidence to create a factual dispute. 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.
Appellate Term, First Department
Oct 5, 2012
2012 NY Slip Op 51913(U)
Provider prevailed
MVAIC failed to establish proper addressing and mailing of IME notices through its contractor's general description of mailing practices. MVAIC sought dismissal as premature because the assignor had failed to attend IMEs. The contractor's employee lacked personal knowledge of the mailing dates and did not describe how names and addresses were checked or notices collected for mailing. The affidavit therefore failed to establish practices designed to ensure proper addressing and mailing under Westchester Med. Ctr. v Countrywide Ins. Co. MVAIC's separate description of its own procedures concerned claims handled without a contractor. The Appellate Term, First Department, affirmed denial of MVAIC's summary judgment motion.
Appellate Term, Second Department
Oct 5, 2012
2012 NY Slip Op 51923(U)
Insurer prevailed
The insurer established timely mailing of IME notices and denials and the assignor's failure to appear for the scheduled examinations. The owner of the company retained to schedule the IMEs supplied an affidavit establishing timely mailing through standard office practices and procedures. The chiropractor retained to conduct the examinations established nonappearance, and the insurer proved timely mailing of denials based on that nonappearance. Applying Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. and 11 NYCRR 65-1.1, the Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the provider's assigned no-fault claims.
Appellate Term, First Department
Oct 3, 2012
2012 NY Slip Op 51887(U)
Provider prevailed
⚠ Not followed by Saddle Brook Surgicenter, LLC v All State Ins. Co. (2015 NY Slip Op 25099)
The insurer's failure to deny the claim within 30 days precluded its defense that the provider's fees were excessive. The insurer appealed from the denial of its motion for summary judgment dismissing the provider's action for no-fault benefits. The Appellate Term, First Department, modified the order by searching the record under CPLR 3212 (b) and granting the provider summary judgment on its first cause of action, although the provider had not cross-moved. The record conclusively established that payment was overdue, and the insurer raised no other defenses. The court left statutory interest and attorney fees unresolved because those issues had not been reached below, without prejudice to renewal in Civil Court.
Trial court, Second Department
Oct 23, 2012
2012 NY Slip Op 22307
Insurer prevailed
A provider that delays suit beyond 30 days after receiving a denial resumes accruing interest upon completed service under CCA 412. The provider sought interest from filing, while the insurer argued that service controlled. The Civil Court, Kings County, resolved the interest issue in the insurer's favor, although the insurer conceded the provider's entitlement to judgment. Insurance Law § 5106 (a) and 11 NYCRR 65-3.9 govern no-fault interest rather than the CPLR interest provisions. The court held that the toll under 11 NYCRR 65-3.9 (c) did not displace CCA 412, which required completed service of a summons bearing the actual index number before interest resumed.
Trial court, Second Department
Oct 9, 2012
2012 NY Slip Op 51960(U)
MVAIC's requests to determine an assignor's qualified-person status must comply with the time limits governing verification requests. Following NY Hospital Medical Center of Queens v MVAIC, the Civil Court, Kings County, ruled that naming MVAIC as defendant changes neither the provider's prima facie burden nor denial deadlines. A provider need not prove qualified-person status; MVAIC bears the burden of establishing that defense. The court rejected MVAIC's argument that qualification letters escape the verification deadlines in 11 NYCRR 65-3.5 and 65-3.6. Qualified-person status did not fall within the narrow lack-of-coverage exception to the 30-day denial rule in 11 NYCRR 65.15. The parties were directed to confer on the case's status and report within three weeks.
