Appellate Division, Second Department
Mar 13, 2013
2013 NY Slip Op 01546
Split result
Lack of personal jurisdiction over an insurer is not a ground to stay arbitration under CPLR 7503 (b). The insurer sought a permanent stay of the providers' no-fault arbitration on that ground. It alleged none of the recognized grounds concerning an arbitration agreement, limitations, or public policy, and supplied no insurance policy establishing that an arbitration agreement did not control. Arbitration authority depends on the parties' agreement; personal jurisdiction is required for judicial power over a party. The Appellate Division, Second Department, modified the order to deny the insurer's petition. It affirmed dismissal of the providers' counterclaims because, having demanded arbitration, they could not select different forums for issues or damages arising from a single injury.
Appellate Term, Second Department
Mar 29, 2013
2013 NY Slip Op 50475(U)
Split result
The insurer was entitled to a provider deposition material and necessary to its defense, but factual disputes barred summary judgment. The treating physician's affirmation raised triable issues concerning medical necessity and compliance with the Workers' Compensation fee schedule. The billing administrator's affidavit established admissibility of the claim forms under CPLR 4518 (a), supporting the provider's prima facie finding under CPLR 3212 (g). The insurer also established that it had served a deposition notice and that the examination was warranted under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel a deposition within 60 days and otherwise affirmed, preserving the denial of insurer summary judgment and the provider's prima facie finding.
Appellate Term, Second Department
Mar 29, 2013
2013 NY Slip Op 50478(U)
Provider prevailed
An insurer's delay letters that request no specific verification do not toll its time to pay or deny no-fault claims. After a nonjury trial, the provider's complaint for assigned benefits was dismissed. The sole appellate issue was whether the insurer's letters constituted verification requests. The letters merely notified the provider that payment was being delayed and requested no specific verification. Because the insurer failed to establish any other toll, it was precluded from asserting lack of medical necessity under Presbyterian Hosp. in City of NY v Maryland Cas. Co. The Appellate Term, Second Department, reversed the judgment and remitted for entry of judgment for the provider, with statutory interest and attorney's fees calculated under Insurance Law § 5106 (a).
Appellate Term, Second Department
Mar 29, 2013
2013 NY Slip Op 50473(U)
Insurer prevailed
The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews. The insurer established timely mailing of verification requests and denials. On the third cause of action, the provider failed to show that it supplied responsive information, requiring dismissal as premature under 11 NYCRR 65-3.8 (a). On the first, second, and fourth causes of action, affirmed peer reviews supplied factual bases and medical rationales for finding the services unnecessary. The treating doctor's affidavit did not meaningfully 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 complaint.
Appellate Term, Second Department
Mar 29, 2013
2013 NY Slip Op 50474(U)
Provider prevailed
An insurer that defaults in opposing summary judgment must seek vacatur of the default order rather than renewal of its opposition. The insurer attempted to file opposition almost two months after the stipulated deadline; Civil Court rejected the papers and granted the provider summary judgment on default. The insurer then sought renewal and reargument under CPLR 2221 (d) and (e), and vacatur under CPLR 5015 (a) (1). The Appellate Term, Second Department, dismissed the appeal from denial of reargument because that ruling was not appealable and affirmed the denial of renewal. The vacatur branch remained pending and undecided because the appealed order did not address it.
Appellate Term, First Department
Mar 27, 2013
2013 NY Slip Op 50430(U)
Insurer prevailed
The insurer established timely, proper mailing of IME notices and the assignor's failure to appear. The provider did not dispute the nonappearance or raise a triable issue concerning mailing or the reasonableness of the notices. The assignor's denial of receipt alone was insufficient to rebut the insurer's showing. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, the Appellate Term, First Department, reversed the order, insofar as appealed from, granted the insurer's summary judgment motion in full, and dismissed the provider's complaint for assigned no-fault benefits.
Appellate Term, Second Department
Mar 21, 2013
2013 NY Slip Op 50458(U)
Provider prevailed
An insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts. The insurer relied on its attorney's review of an office file and familiarity with office procedures, without demonstrating personal knowledge of the provider's nonappearance. That conclusory submission had no probative value under CPLR 3212 (b). Although 11 NYCRR 65-1.1 makes compliance with requested EUOs a condition precedent to payment, alleged noncompliance still requires admissible proof. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the insurer's cross motion. It expressly directed that W & Z Acupuncture v Amex Assur. Co. and Points of Health Acupuncture v Lancer Ins. Co. no longer be followed to the extent inconsistent.
Appellate Term, Second Department
Mar 21, 2013
2013 NY Slip Op 50459(U)
Provider prevailed
The provider's complaint stated a cognizable cause of action and sufficiently identified the transactions intended to be proved. The insurer moved under CPLR 3211 (a) (7) to dismiss the action for assigned no-fault benefits, arguing that the complaint inadequately described the transactions underlying the claims. Following Leon v Martinez, the court applied liberal construction, accepted the allegations as true, and afforded the provider every favorable inference. The test was sufficient notice of the transactions and discernible elements of a recognized cause of action, which the complaint satisfied. The Appellate Term, Second Department, affirmed the denial of the insurer's motion.
Appellate Term, First Department
Mar 20, 2013
2013 NY Slip Op 50381(U)
Insurer prevailed
The insurer established timely and proper mailing of IME notices and the assignor's failure to appear, warranting summary judgment. The provider sought assigned first-party no-fault benefits, and Civil Court denied the insurer's motion to dismiss the complaint. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the insurer's proof established its prima facie entitlement to dismissal. The provider did not deny the nonappearance or raise a triable issue concerning it, the mailing, or the reasonableness of the notices. The Appellate Term, First Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, First Department
Mar 20, 2013
2013 NY Slip Op 50382(U)
Split result
MVAIC failed to defeat the provider's entitlement to benefits, but statutory interest required recalculation for possible tolling. MVAIC supplied no competent proof that the assignor was unqualified and did not show that the provider had to exhaust other remedies before suit. The interest award, however, appeared not to account for 11 NYCRR 65-3.9 (c). If that provision applied, interest would accrue from commencement of the action rather than be barred entirely, following LMK Psychological Servs. P.C. v State Farm Mut. Auto. Ins. Co. The Appellate Term, First Department, modified the judgment by remanding for recalculation and entry of an amended judgment, otherwise affirmed the provider's recovery, and reached no other issue.
Appellate Term, Second Department
Mar 20, 2013
2013 NY Slip Op 50453(U)
Split result
The insurer obtained dismissal of paid portions of two claims, but inadequate IME proof left the provider entitled to judgment on another claim. The Appellate Term, Second Department, modified the order to dismiss the conceded paid portions and deny both parties summary judgment on the unpaid balances, where fee-schedule entitlement remained disputed. It preserved the provider's judgment on one other claim because the insurer failed to establish proper mailing of IME notices or the assignor's nonappearance. On the fourth claim, the insurer's examiner rebutted the mailing presumption and raised a factual issue concerning receipt, defeating summary judgment for either side. The court remitted for proceedings on the unpaid balances and fourth claim and did not review the uncontested prima facie finding.
Appellate Term, Second Department
Mar 20, 2013
2013 NY Slip Op 50454(U)
Split result
The insurer's missing peer review defeated dismissal of one claim, but unrebutted reports supported dismissal of the other assignors' claims. The insurer conceded that summary judgment on the first claim was unwarranted because it had not annexed the relevant peer review. The provider also failed to establish entitlement to judgment on that claim, since it did not show the denial was conclusory, vague, or legally meritless. For claims involving the other three assignors, timely denials and sworn peer reviews supplied factual bases and medical rationales that the provider did not rebut. The Appellate Term, Second Department, modified the order to deny the insurer judgment on the unsupported claim and otherwise affirmed, leaving the provider's motion denied and the remaining claims dismissed.
Appellate Term, Second Department
Mar 18, 2013
2013 NY Slip Op 23088
An insurer's peer review report is inadmissible at trial to prove lack of medical necessity. After a nonjury trial, the Civil Court awarded the provider judgment because some reports were undated, unsigned or unnotarized, without considering the insurer's expert testimony. The Appellate Term, Second Department, reversed and remitted for a new trial. Under 11 NYCRR 65-3.8 (b) (4), no report format is prescribed; proper swearing or affirmation is required when reports support or oppose a motion under CPLR 3212 (b). The expert's testimony explaining the factual basis and medical rationale should have been considered. Because credibility had not been assessed, a new trial was necessary, with medical necessity resolved through expert testimony subject to cross-examination.
Appellate Term, Second Department
Mar 15, 2013
2013 NY Slip Op 50421(U)
Insurer prevailed
The transit authority established submission of the provider's claim beyond 45 days without a reasonable justification for the delay. Its claims examiner proved timely mailing of a denial and submission more than 45 days after services were rendered under 11 NYCRR 65-2.4. The denial adequately stated its basis and advised that reasonable justification would excuse lateness. A letter from the provider's attorney said the claim had initially been inadvertently sent to another carrier, but did not explain why. The transit authority thus established prima facie entitlement to judgment on its unopposed motion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the transit authority's summary judgment motion dismissing the complaint.
Appellate Term, Second Department
Mar 15, 2013
2013 NY Slip Op 50413(U)
Provider prevailed
The insurer failed to prove that its acupuncture payments were the fee schedule maximum or that it properly denied the balances. The provider appealed from the grant of the insurer's cross motion for summary judgment dismissing its assigned no-fault claims; under CPLR 5501 (c), the appeal was deemed taken from the ensuing judgment. Following Great Wall Acupuncture, P.C. v Geico Ins. Co., an insurer may use the workers' compensation fee schedule for acupuncture performed by chiropractors to reimburse a licensed acupuncturist. The insurer's proof did not establish entitlement to dismissal here. The Appellate Term, Second Department, reversed the judgment, vacated the grant of the cross motion, and denied it, reaching no other issue.
Appellate Term, Second Department
Mar 15, 2013
2013 NY Slip Op 50419(U)
Split result
The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment. In this action for assigned no-fault benefits, the provider also sought summary judgment but failed to establish its prima facie case. Although it proved nonpayment, it did not show that the denial was conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion to dismiss the complaint on medical necessity grounds and otherwise affirmed, leaving the denial of the provider's motion intact.
Appellate Term, First Department
Mar 12, 2013
2013 NY Slip Op 23068
Provider prevailed
A nonparty provider is not bound by a declaratory judgment against its assignor in an action commenced after the assignment. The insurer obtained a declaration permitting denial of all no-fault claims arising from the assignor's accident, but the provider was not a party to that action. The Appellate Term, First Department, affirmed denial of the insurer's motion for summary judgment. The provider lacked a full and fair opportunity to contest the issues and, under Gramatan Home Invs. Corp. v Lopez, was not in privity with the assignor because the action followed the assignment. A separate concurrence questioned the outcome's consistency with no-fault objectives but agreed that controlling precedent required affirmance.
Appellate Term, First Department
Mar 12, 2013
2013 NY Slip Op 50359(U)
Provider prevailed
The provider's complaint, amplified by its billing manager's affidavit, sufficiently stated a claim for first-party no-fault benefits. The insurer moved to dismiss under CPLR 3211. Accepting the allegations as true and giving the provider every favorable inference, the complaint survived dismissal on the pleadings. The affidavit of the insurer's no-fault litigation examiner was not so essentially undeniable as to constitute documentary evidence conclusively refuting any claim the provider might have. The Appellate Term, First Department, affirmed the order denying the insurer's motion to dismiss the complaint.
Appellate Term, Second Department
Mar 5, 2013
2013 NY Slip Op 50322(U)
Split result
The provider's claims were not barred by the assignor's election to arbitrate because the assignment preceded that election. The insurer sought dismissal under CPLR 3211 and CPLR 3212, relying on Roggio v Nationwide Mut. Ins. Co. Because the assignor executed the assignment before commencing arbitration of unassigned claims from the same accident, Roggio did not preclude this action. However, the provider's billing supervisor's affidavit lacked several paragraphs and failed to establish that the attached documents proved the fact and amount of loss under CPLR 4518 (a). The Appellate Term, Second Department, reversed the judgment and denied the provider's cross motion for summary judgment, leaving the denial of the insurer's motion intact.
Appellate Term, First Department
Mar 1, 2013
2013 NY Slip Op 50301(U)
Split result
The insurer proved the assignor's IME nonappearance and proper notice, warranting dismissal of specified no-fault claims. Its proof established timely and proper mailing of IME notices and the assignor's failure to appear for the claims in the first through sixth and ninth through twelfth causes of action. The provider did not specifically deny nonappearance or raise a triable issue concerning it, the mailing, or the reasonableness of the notices. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, modified the order to dismiss those causes of action and otherwise affirmed, leaving the seventh and eighth causes of action undismissed.
Trial court, Second Department
Mar 29, 2013
2013 NY Slip Op 23095
Provider prevailed
The insurer's circumstantial evidence did not establish a staged collision as a matter of law. The Supreme Court, Kings County, denied the insurer summary judgment declaring no coverage because competing inferences remained and its supervisor lacked personal knowledge. Default judgment against two passengers was denied because the publication order failed to designate publications under CPLR 316 (a). The provider's assignments preceded the declaratory action, so subsequent assignor defaults would not affect its rights. The court also denied dismissal of the provider's benefits and attorney-fee counterclaims. Insurance Law § 5103 (a) (3) did not make passengers insureds; eligibility for defense expenses depended on the policy's insured and defense provisions. Because the policy was not submitted, the court left fee entitlement unresolved.
Trial court, Second Department
Mar 28, 2013
2013 NY Slip Op 23098
Provider prevailed
An insurer must send a follow-up EUO request within 10 calendar days of the missed EUO. The provider failed to comply with initial and follow-up EUO requests, but the insurer's follow-up was untimely. On the insurer's motion to reargue, the Civil Court, Queens County, read 11 NYCRR 65-3.6 (b) and 65-3.8 together and deferred to the Superintendent's interpretation measuring the deadline from the missed appearance. The 30-day verification deadline concerned submission of documents, rather than an appearance scheduled for a specific date. After considering input from the Department of Financial Services, the court granted reargument and adhered to its prior determination awarding the provider summary judgment.
Trial court, Second Department
Mar 27, 2013
2013 NY Slip Op 50510(U)
Insurer prevailed
The provider failed at trial to lay a business-record foundation for bills generated by a separate billing company. Its physician witness inadequately described bill creation and gave inconsistent testimony about supervising billing and checking other professionals' charges. No billing-company witness testified. Under CPLR 4518 (a), the Civil Court, Kings County, rescinded admission of the bills and awarded a verdict to the insurer because the provider failed to establish its prima facie case under Insurance Law § 5106 (a). The court denied the insurer's motion in limine alleging fraudulent incorporation: the prior proceedings supplied no binding finding against this provider, and the motion improperly substituted for summary judgment. The physician's convictions and license revocation could bear on credibility but did not bar testimony.
Trial court, Second Department
Mar 11, 2013
2013 NY Slip Op 23066
Provider prevailed
The insurer's submission of a response and supporting documents to AAA barred its application to stay the provider's arbitration. The insurer sought a permanent stay under CPLR 7503 (b), asserting that rescission of a Pennsylvania policy eliminated coverage and the agreement to arbitrate. Its earlier letter to AAA disputed the applicability of New York no-fault benefits and enclosed policy, accident and claim-denial documents. The Supreme Court, Kings County, found that these submissions constituted participation, waiving judicial determination of arbitrability. The court denied the permanent stay and dismissed the proceeding. It expressly declined to decide whether the petition was untimely under CPLR 7503 (c) or supported by inadmissible documents.
