Appellate Division, Fourth Department
Jun 14, 2013
2013 NY Slip Op 04482
Insurer prevailed
A voluntarily selected arbitrator's statute-of-limitations determination is conclusive absent fraud, corruption, or other misconduct. The injured claimants timely sued within six years, then agreed to arbitration and requested it more than 12 years after accrual. The arbitrator dismissed their no-fault claims as time-barred, and the master arbitrator affirmed. Review was limited by CPLR 7511 (b) (1), and the claimants offered no proof of misconduct. The master arbitrator did not exceed the permissible powers by finding no waiver of the limitations defense because the arbitration agreement imposed no express limitation on those powers. The Appellate Division, Fourth Department, modified the order to confirm the insurer-favorable awards under CPLR 7511 (e) and otherwise affirmed dismissal of the vacatur petition.
Appellate Term, Second Department
Jun 27, 2013
2013 NY Slip Op 51096(U)
Insurer prevailed
A peer review report is inadmissible at trial to prove lack of medical necessity; that issue is resolved through medical expert testimony. Following A-Quality Med. Supply v GEICO Gen. Ins. Co., the Appellate Term, Second Department, nevertheless affirmed the judgment dismissing the provider's complaint after a nonjury trial. The insurer established lack of medical necessity through its doctor's testimony, and the provider failed to rebut that showing. On appeal, the provider challenged admission of the peer review reports and underlying records but did not challenge the substance of the expert's testimony. Admission of the peer review report therefore did not warrant reversal.
Appellate Term, Second Department
Jun 25, 2013
2013 NY Slip Op 51035(U)
Provider prevailed
The provider's motion for summary judgment on its assigned no-fault claims was granted on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. The matter was remitted to the Civil Court for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 and its implementing regulations.
Appellate Term, Second Department
Jun 25, 2013
2013 NY Slip Op 51036(U)
Provider prevailed
The provider's motion for summary judgment on its assigned no-fault claims was granted on appeal. The Appellate Term, Second Department, reversed the order for the reasons stated in LOF Med. Supply, Inc. v Geico Gen. Ins. Co. The matter was remitted to the Civil Court for calculation of statutory interest and assessment of attorney's fees under Insurance Law § 5106 and its implementing regulations.
Appellate Term, Second Department
Jun 17, 2013
2013 NY Slip Op 23218
Insurer prevailed
⚠ Overruled by New Millennium Med. Imaging, P.C. v GEICO (2022 NY Slip Op 22300)
The provider's action was time-barred because mailing the summons without a signed acknowledgment did not commence it. Under the former Civil Court commencement-by-service system and CPLR 312-a, the unacknowledged mailing did not commence an action. The insurer's answer preserved its jurisdictional defense, and failure to move within 60 days under CPLR 3211 (e) did not waive that defense because no viable action was pending. Filing the papers in February 2009 commenced the action under CCA 400 (1). The claim accrued under Insurance Law § 5106 (a) when the insurer mailed its denial in January 2003; the six-year period under CPLR 213 (2) had expired. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, permitting amendment to assert the limitations defense and granting dismissal.
Appellate Term, Second Department
Jun 17, 2013
2013 NY Slip Op 51031(U)
Provider prevailed
The insurer submitted to personal jurisdiction by seeking default vacatur and leave to defend on the merits without a jurisdictional objection. The insurer sought vacatur under CPLR 5015 (a) (1) and dismissal under CPLR 3211 (a) (8), alleging service on its claims administrator instead of the insurer. The jurisdictional challenge failed because of its earlier voluntary participation. Vacatur also failed: the administrator's conclusory assertion that workers' compensation was primary supplied no evidence that the assignor was acting within the course of employment, and thus no meritorious defense. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, adhering to denial of both requests.
Appellate Term, Second Department
Jun 17, 2013
2013 NY Slip Op 51032(U)
Insurer prevailed
The insurer established mailing of the EUO scheduling letters and denials, defeating the provider's sole appellate challenge to dismissal. The insurer had cross-moved for summary judgment on the ground that it timely and properly denied the claims for the assignor's failure to attend scheduled EUOs. The provider challenged only mailing in appealing the grant of that cross motion. The Appellate Term, Second Department, rejected that challenge and affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jun 17, 2013
2013 NY Slip Op 51033(U)
Insurer prevailed
The insurer established the assignor's IME nonappearances, and the provider's attorney affirmation raised no triable issue. An employee of the scheduling entity established timely mailing of the IME letters, and insurer affidavits established timely mailing of the corresponding denials. The examining physician's affirmation and affidavits from the chiropractor, psychologist, and acupuncturist each stated that the assignor failed to appear. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., those submissions established the insurer's entitlement to judgment. 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, Second Department
Jun 17, 2013
2013 NY Slip Op 51034(U)
Insurer prevailed
The insurer's affirmed peer review established lack of medical necessity, and the provider did not rebut that showing. In the assigned no-fault action, the insurer established a timely denial and submitted a report supplying a factual basis and medical rationale for finding the services unnecessary. 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. In light of that determination, it reached no other issue.
Appellate Term, Second Department
Jun 6, 2013
2013 NY Slip Op 50973(U)
Insurer prevailed
The provider failed to identify the claims sued upon or prove they remained unpaid, so it did not establish a prima facie case at trial. The provider called no witnesses and offered no claim forms, relying instead on a summary judgment order in another action and an insurer employee's deposition. The earlier order concerned other claims and conditionally authorized recovery under a specified claim number. The deposition did not identify claim numbers, and no evidence connected the present claims to that order or established nonpayment. Under Insurance Law § 5106 (a), the proof was insufficient. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint after the nonjury trial.
Trial court, First Department
Jun 24, 2013
2013 NY Slip Op 23204
Insurer prevailed
A provider may designate a knowledgeable EUO witness, but an insurer's demand for a specific person does not excuse nonappearance. The insurer denied the provider's no-fault claims after the provider failed to appear at two scheduled EUOs. The provider did not dispute its nonappearance but argued that the notices were defective because they demanded a particular individual. The Civil Court, New York County, explained that the Insurance Department opinion permitting a provider to choose a person with personal knowledge did not invalidate such requests. Following Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, failure to produce anyone breached a condition precedent to coverage. The insurer's motion for summary judgment dismissing the complaint was granted.
Trial court, Second Department
Jun 18, 2013
2013 NY Slip Op 23201
Insurer prevailed
The insurer obtained in camera review of corporate records because the record did not establish whether Mallela discovery was warranted. Moving to strike the notice of trial for incomplete discovery, the insurer sought financial and management records concerning a possible licensing defense. The providers objected that the requests were burdensome and unrelated to the denials. The District Court, Nassau County, explained that Mallela discovery requires a reasonable basis and that merely asserting the defense or suspecting a licensing violation does not justify disclosure. Applying CPLR 3101 (a), the court granted the motion to the extent of directing the medical provider to submit banking, management, tax and lease records for in camera inspection and stayed all proceedings pending production and inspection.
Trial court, Second Department
Jun 10, 2013
2013 NY Slip Op 50990(U)
Insurer prevailed
A provider cannot first justify a late claim at trial after failing to respond to a denial inviting a reasonable excuse. The Civil Court, Kings County, dismissed the equipment provider's complaint with prejudice under 11 NYCRR 65-1.1 (b) and 11 NYCRR 65-3.3 (e). Claims for two rentals were submitted 56 days after delivery, although the equipment returned within 45 days and could have been timely billed. Rental and return documents did not themselves justify the delay, and the provider failed to offer an excuse during claims processing. The court left open whether those documents might supply reasonable justification if equipment returned after the 45-day period expired.
Trial court, Second Department
Jun 7, 2013
2013 NY Slip Op 50985(U)
Provider prevailed
The injured claimant qualified for no-fault benefits because being struck and falling from the insured truck met the vehicle-causation test. The claimant stood on a flatbed tow truck unchaining a van for unloading when a recycling-yard forklift lifted the van, causing it to strike the claimant and knock the claimant off the truck. In the declaratory action under CPLR 3001, the insurer disputed only whether the covered vehicle produced the injury under Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson). The Supreme Court, Kings County, distinguished injuries caused solely by other instrumentalities and found the vehicle-causation requirement satisfied. It granted the claimant summary judgment declaring entitlement to no-fault benefits and denied the insurer's cross motion to dismiss.
Trial court, Second Department
Jun 6, 2013
2013 NY Slip Op 50910(U)
Provider prevailed
The provider obtained a protective order limiting the insurer's bank subpoena to signature cards because broader discovery was unwarranted. The District Court, Nassau County, granted protection under CPLR 3103 (a) in an action for MRI benefits involving a Mallela defense. Although the subpoena satisfied CPLR 3101 (a) (4) and sought relevant information, the provider's president had answered extensive EUO questions and produced financial documents. The insurer had sought many of the same records from the provider but had not obtained judicial resolution of its objections before subpoenaing the bank. Signature cards could identify others authorized to control the account. The court reserved whether further bank records could be obtained and directed that additional requests be made to the provider.
