Appellate Term, First Department
Nov 30, 2012
2012 NY Slip Op 52195(U)
Insurer prevailed
The insurer established that the provider's claim was premature because properly mailed verification requests went unanswered. Its proof established timely mailing of initial and follow-up requests to the provider's attorney, as authorized by counsel's prior correspondence. Counsel's conclusory denial of receipt did not raise a triable issue. The requirement in 11 NYCRR 65-3.6 (b) to send a delay letter to both the applicant and counsel applied only when information was sought from someone other than the applicant, a circumstance absent here. The Appellate Term, First Department, reversed the order, granted the insurer's summary judgment motion, and dismissed the complaint.
Appellate Term, First Department
Nov 28, 2012
2012 NY Slip Op 52192(U)
Provider prevailed
The insurer failed to prove proper mailing of IME notices, and the provider raised a factual issue about delivery to the wrong address. The insurer sought summary judgment on the ground that the claim was premature because the assignor failed to attend IMEs. Its scheduling contractor's employee lacked personal knowledge of mailing dates and described office mailing procedures only generally. The affidavit did not establish practices ensuring proper addressing and mailing under Westchester Med. Ctr. v Countrywide Ins. Co. The provider also submitted evidence tending to show misdelivery. The Appellate Term, First Department, affirmed the order, insofar as appealed from, denying the insurer's motion.
Appellate Term, First Department
Nov 28, 2012
2012 NY Slip Op 52189(U)
Insurer prevailed
Verification requested after the regulatory 15-day period but before the 30-day denial period expires remains valid. Under 11 NYCRR 65-3.5 (b) and 65-3.8 (j), the delay instead reduces the insurer's time to pay or deny the claim. The provider's failure to respond to verification requests was undisputed, establishing the insurer's entitlement to dismissal of the assigned no-fault claims as premature. The Appellate Term, First Department, reversed the order, denied the provider's cross motion for summary judgment, and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2012
2012 NY Slip Op 52178(U)
Split result
The insurer's proof of timely EUO notices, nonappearance, and denial defeated the provider's summary judgment cross motion. Under 11 NYCRR 65-3.6 (b), an EUO follow-up sent within 10 days of the initial nonappearance was not premature merely because fewer than 30 days had elapsed after the first request. The insurer could assert failure to satisfy a coverage condition under 11 NYCRR 65-1.1. Its denial preserved a fee-schedule billing defense but omitted any treatment defense, precluding that defense under Fair Price Med. Supply Corp. v Travelers Indem. Co. The Appellate Term, Second Department, reversed the order, denied the provider's cross motion, and compelled depositions of two provider principals solely concerning billing practices, leaving treatment outside discovery.
Appellate Term, Second Department
Nov 26, 2012
2012 NY Slip Op 52176(U)
Insurer prevailed
The insurer established that accident notice was late, and the provider offered neither contrary proof nor justification for the delay. The insurer's employee established timely mailing of denials and stated that the insurer first learned of the accident from a bill received about two months afterward, beyond the 30-day notice period. The provider merely speculated that notice had been timely. Although the denials invited written proof of clear and reasonable justification under 11 NYCRR 65-1.1 and 65-2.4 (b), the provider supplied no evidence that it pursued that opportunity. 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
Nov 26, 2012
2012 NY Slip Op 22345
Provider prevailed
The insurer failed to establish that its Pennsylvania policy limit governed the claims or that timely verification requests tolled denial time. The provider sought payment of five claims, one partially paid and four denied for exhaustion of benefits. The insurer's affidavit did not establish timely verification requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), precluding its fee schedule defense to the unpaid portion of the partially paid claim. Although policy exhaustion survives an untimely denial, the insurer failed to show that Insurance Law § 5107 (a), 11 NYCRR 65-1.8 and the policy's out-of-state provision did not require increased coverage. The Appellate Term, Second Department, affirmed the judgment granting the provider summary judgment and denying the insurer's cross motion.
Appellate Term, Second Department
Nov 26, 2012
2012 NY Slip Op 52184(U)
Insurer prevailed
The provider's action was premature because the insurer had not received all verification requested before suit commenced. The insurer's claims examiner established timely mailing of initial and follow-up verification requests. The provider did not demonstrate that the outstanding material had been supplied before commencement, so the 30-day period to pay or deny had not begun under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, treated the appeal as taken from the ensuing judgment under CPLR 5512 (a), reversed that judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Nov 26, 2012
2012 NY Slip Op 52180(U)
Split result
The provider failed to establish entitlement to a default judgment, and the insurer failed to justify acceptance of its late answer. The provider supported its motion with an attorney-verified complaint and an attorney affirmation, neither sufficient under CPLR 3215 (f). The insurer did not demonstrate a reasonable excuse for its default and a meritorious defense under CPLR 5015 (a). The Appellate Term, Second Department, modified the order by striking the provision deeming the insurer's answer served, accepted, and filed, and otherwise affirmed the denial of the provider's motion for a default judgment.
Appellate Term, Second Department
Nov 26, 2012
2012 NY Slip Op 52181(U)
Insurer prevailed
The insurer established that the provider's action was premature because requested verification remained outstanding when suit began. After initially denying both parties' summary judgment motions, the Civil Court granted the insurer reargument and summary judgment dismissing the complaint. The insurer's affidavit established timely mailing of initial and follow-up verification requests, and the provider did not show that it supplied the requested material before commencing suit. Under 11 NYCRR 65-3.8 (a), the insurer's 30-day period to pay or deny therefore had not begun. The Appellate Term, Second Department, affirmed the order granting reargument and dismissal.
Appellate Term, First Department
Nov 15, 2012
2012 NY Slip Op 52119(U)
Provider prevailed
MVAIC failed to submit competent proof that the assignor was unqualified to receive no-fault benefits or otherwise raise a triable issue. MVAIC bore the burden of proving its lack-of-coverage defense under Matter of MVAIC v Interboro Med. Care & Diagnostic, PC. On this record, the assignor's qualified-person status did not depend on receipt of a household affidavit, because there was no indication that MVAIC timely objected to the claim form's adequacy or timely sought verification. The Appellate Term, First Department, affirmed the order denying MVAIC's summary judgment motion and granting the provider's cross motion.
Appellate Term, First Department
Nov 15, 2012
2012 NY Slip Op 52113(U)
Insurer prevailed
The provider's cross motion for summary judgment was denied on appeal, while denial of MVAIC's summary judgment motion was upheld. The Appellate Term, First Department, modified the order and otherwise affirmed, citing its earlier decision in Canarsie Medical Health, P.C. v MVAIC. The decision supplied no independent explanation for either ruling.
Appellate Term, First Department
Nov 15, 2012
2012 NY Slip Op 52114(U)
Insurer prevailed
The provider's action was premature because it commenced less than 30 days after service of the claim at issue. The insurer established that the applicable payment period had not elapsed under Insurance Law § 5106 (a) and 11 NYCRR 65-3.5. The provider's assertion that it mailed a claim a year earlier did not raise a triable issue because that earlier claim concerned services rendered on a different date. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in its entirety, and dismissed the complaint.
Trial court, Second Department
Nov 30, 2012
2012 NY Slip Op 52205(U)
Split result
An insured seeking SUM benefits must prove serious injury, and an insurer may assert that defense under Raffellini. The Supreme Court, Kings County, denied the insureds' motion under CPLR 3211 (b) to strike that defense, applying Insurance Law § 3420 (f) (1) and (2). It struck the jurisdiction, notice, and conditions-precedent defenses because service and notice were established and the conditions defense lacked supporting facts. It granted the insurer's CPLR 3211 (a) (7) motion dismissing the good-faith claim as duplicative of contract damages and unsupported by allegations of contemplated consequential damages. The insurer's application to vacate the note of issue was granted only to permit continued discovery and a summary judgment motion within 60 days after discovery ended.
Trial court, Second Department
Nov 26, 2012
2012 NY Slip Op 52203(U)
The insurer's affidavits failed to establish proper addressing and timely mailing of verification requests, leaving factual issues. Neither affiant identified the office that generated and mailed the requests or established familiarity with that office's mailing procedures. Requests also omitted the provider's attorneys despite instructions to send verification there; the attorneys' detailed nonreceipt affidavit raised further factual issues. The District Court, Nassau County, applied 11 NYCRR 65-3.5 and 65-3.6 (b) and denied both summary judgment motions. Although the provider established its prima facie case, disputed verification mailing prevented judgment because properly addressed, timely requests would toll payment and render the action premature under 11 NYCRR 65-3.8 (a) (1).
