Appellate Term, First Department
Jul 31, 2013
2013 NY Slip Op 51250(U)
The provider's trial judgment was reversed because conflicting accident dates and unresolved police-report hearsay prevented an informed determination. The abbreviated record consisted of counsel's colloquy with the court and submitted documents. The police report dated the accident July 29, 2007, while the notice of intention to make claim, dated August 27, 2008, identified July 29, 2008. The resulting substantial timeliness question could not be resolved from the pleadings and documents alone. The report's insurance information also did not determine coverage because the record did not establish whether its source had a duty to report that information to police. The Appellate Term, First Department, reversed the judgment against MVAIC and ordered a new trial.
Appellate Term, First Department
Jul 19, 2013
2013 NY Slip Op 51193(U)
Insurer prevailed
The provider's action was time-barred because its pleaded claim accrued more than six years before commencement. The complaint alleged services on January 9, 2003, timely receipt of the bill, and no proper denial or verification request within 30 days. Under 11 NYCRR 65-1.1 (d), proof of claim was due within 45 days after the services, and the claim accrued 30 days thereafter. Even accepting the allegations as true and granting favorable inferences under CPLR 3211 (a) (5), the September 18, 2009 commencement was untimely. The Appellate Term, First Department, reversed the order, granted the insurer's dismissal motion, and dismissed the complaint.
Appellate Term, Second Department
Jul 12, 2013
2013 NY Slip Op 23262
A witness familiar with a provider's office routine may lay a business-records foundation without having made the records. The Appellate Term, Second Department, reversed the insurer's judgment after a nonjury trial, reinstated the complaint, and remitted for a new trial. The provider's employee established that delivery receipts and claim forms were routinely and contemporaneously made in the regular course of business, satisfying CPLR 4518 (a). Lack of personal knowledge affects weight rather than admissibility. The court also explained that an assignment of benefits has independent legal significance, is not hearsay, and requires authentication rather than a business-records foundation. The Civil Court had improperly excluded the provider's records.
Appellate Term, Second Department
Jul 12, 2013
2013 NY Slip Op 51265(U)
Provider prevailed
The insurer failed to prove IME nonappearance at trial because its witness lacked personal knowledge of the alleged nonappearances. The parties stipulated that nonappearance was the sole issue for the nonjury trial. The insurer's only witness, a scheduling supervisor for an independent company that scheduled IMEs and mailed notices, relied on a file review to testify that the assignor missed two examinations. Following Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., the Appellate Term, Second Department, reversed the judgment dismissing the complaint and remitted the matter for entry of judgment for the provider, with statutory interest and attorney's fees under Insurance Law § 5106 (a) and its implementing regulations.
Appellate Term, Second Department
Jul 12, 2013
2013 NY Slip Op 51266(U)
Split result
The insurer failed to prove IME nonappearance because its doctor's affidavit gave inconsistent examination addresses. The Appellate Term, Second Department, affirmed denial of summary judgment dismissing the claims assigned by one assignor, but modified the order, insofar as appealed from, to strike the finding that the provider established its prima facie case under CPLR 4518. The insurer also failed to establish that two claims were premature: its letters merely delayed consideration pending an accident investigation and did not toll the time to pay or deny. The Civil Court properly treated an amended motion correcting the doctor's incomplete affidavit as reply papers under CPLR 2001, where the substance was unchanged and the provider responded.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51123(U)
Provider prevailed
The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge. In the provider's action for assigned no-fault benefits, the insurer sought summary judgment dismissing the complaint based on asserted timely and proper denials for failure to attend scheduled EUOs. Following Alrof, Inc. v Safeco Natl. Ins. Co., the Appellate Term, Second Department, affirmed denial of the insurer's motion because its proof did not establish the alleged nonappearances.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51122(U)
Insurer prevailed
The insurer established nonreceipt of the provider's claim, and the provider failed to show proper mailing to the insurer's address. The insurer's claims representative supplied an affidavit establishing that the claim had never been received. The provider's opposition did not establish proper mailing sufficient to create a presumption of receipt, and the insurer demonstrated that the Philadelphia post office box allegedly used was not its address. The Appellate Term, Second Department, reversed the order denying summary judgment and granted the insurer's motion dismissing the complaint.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 23232
Insurer prevailed
A Mallela defense does not require proof of common-law fraud or fraudulent intent at incorporation. The Appellate Term, Second Department, affirmed dismissal after a jury trial under 11 NYCRR 65-3.16 (a) (12) because unlicensed individuals controlled the provider in violation of Business Corporation Law § 1507. Eligibility turns on actual ownership and control, including post-incorporation conduct. Prior judgments on different claims did not bar the unlitigated defense. The finding that the physician shareholder did not practice medicine was set aside as against the weight of the evidence. Reading nonparties' Fifth Amendment invocations and charging an adverse inference were errors, but the majority found them harmless under CPLR 2002 given the control evidence; a dissent would have ordered a new trial.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51124(U)
Split result
The insurer's SIU file was discoverable because it failed to show that the investigation began after a decision to deny the claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel production, while affirming discovery and depositions concerning the provider's licensing eligibility under Mallela. Earlier stipulations in unrelated actions did not create collateral estoppel because compliance had not been actually litigated. The provider's untimely objections under CPLR 3122 (a) and CPLR 3133 (a) limited its challenge to privileged or palpably improper demands; it established neither exception. Licensing ineligibility was a nonprecluded defense, and the insurer established entitlement under CPLR 3101 (a) to depose the provider's owner and another identified witness.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51126(U)
Provider prevailed
MVAIC failed to prove proper mailing of the initial and follow-up IME notices because its scheduling affidavit inadequately described office practices. MVAIC sought summary judgment dismissing the provider's assigned no-fault claims on the ground that the assignor failed to attend IMEs. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), MVAIC had to establish proper mailing of both notices. The scheduling company's employee did not sufficiently describe a standard procedure ensuring that letters were properly addressed and mailed. MVAIC therefore failed to demonstrate that the IMEs were properly scheduled. The Appellate Term, Second Department, affirmed the order denying MVAIC's summary judgment motion.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51119(U)
Insurer prevailed
The provider failed to establish its claim form's admissibility because its third-party witness did not lay a foundation for the source records. At a nonjury trial, the provider offered the form to prove the fact and amount of loss. Its witness, employed by a third party, prepared the form using documents from the provider's file. Under CPLR 4518 (a), each participant in producing the record had to act in regular business conduct or satisfy another hearsay exception. The witness established neither compliant creation of the source documents nor that the employer incorporated them into its records and relied on them in its regular business. The Appellate Term, Second Department, reversed the provider's judgment and directed judgment dismissing the complaint for the insurer.
Appellate Term, Second Department
Jul 5, 2013
2013 NY Slip Op 51118(U)
Insurer prevailed
The insurer established lack of medical necessity for supplies to three assignors, and the provider offered no rebutting medical evidence. The insurer also established mailing of the denials, contrary to the provider's appellate challenge. Its submissions supplied a factual basis and medical rationale for finding the supplies medically unnecessary. The Appellate Term, Second Department, affirmed the portion of the judgment dismissing those three assignors' claims on the insurer's summary judgment cross motion. Under CPLR 5501 (c), the appeal from the order was deemed taken from the corresponding portion of the subsequently entered judgment.
Appellate Term, Second Department
Jul 3, 2013
2013 NY Slip Op 51113(U)
Insurer prevailed
The insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary. At the nonjury trial, the insurer's chiropractor testified that the assignor had reached "status quo ante" at the IME and that subsequent spinal treatment was unnecessary. That showing placed on the provider the burden of proving medical necessity by a preponderance of credible evidence. Without provider evidence, any finding that the condition worsened after the IME would be speculative. The Appellate Term, Second Department, reversed the provider's judgment and remitted for judgment dismissing the complaint. It also dismissed the appeal from the trial decision under UDCA 1702 because no appeal lies from a decision.
Appellate Term, First Department
Jul 2, 2013
2013 NY Slip Op 51047(U)
Insurer prevailed
The insurer's sworn peer review established lack of medical necessity, and the provider's unsworn, conclusory reports raised no triable issue. The chiropractor's peer review supplied a factual basis and medical rationale explaining why manipulation under anesthesia was unnecessary under protocols followed by the National Academy of MUA physicians. The provider submitted its principal's unsworn operative reports with an attorney affirmation; under Grasso v Angerami, those reports lacked probative value. Even if considered, their conclusory, fill-in-the-blanks findings were insufficient to defeat summary judgment. The Appellate Term, First Department, reversed denial of the insurer's motion, granted summary judgment, and dismissed the complaint.
Appellate Term, Second Department
Jul 1, 2013
2013 NY Slip Op 51104(U)
Insurer prevailed
The insurer established exhaustion of the Delaware policy's $15,000 medical-expense limit, defeating the provider's claim. The policy was issued to a Delaware resident for a vehicle registered there, and the accident occurred there, making Delaware law applicable to the substantive issues. Under 21 Del. C. § 2118 (a) (2) (b) and 21 Del. C. § 2902 (b) (2), Delaware required $15,000 in minimum compensation per person; although higher limits were permitted, this policy supplied that limit. Employee affidavits and documentary evidence established exhaustion, and the provider raised no triable issue. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion and grant of the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Jul 1, 2013
2013 NY Slip Op 51107(U)
Insurer prevailed
The provider's repeated, unexplained failure to obey discovery orders warranted dismissal under CPLR 3126. The insurer gave detailed and specific reasons to question the provider's eligibility as a fraudulently incorporated professional corporation under Mallela and sought related disclosure. The provider failed to comply with a so-ordered stipulation and two court orders directing that disclosure. Although dismissal is a drastic remedy, willful and contumacious conduct could be inferred from repeated noncompliance and the absence of a reasonable excuse. The provider's motion to stay discovery was also untimely. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, granting the insurer's motion to dismiss the complaint.
Appellate Term, Second Department
Jul 1, 2013
2013 NY Slip Op 51108(U)
Provider prevailed
The insurer's independent-contractor defense was precluded because it failed to establish a timely denial and omitted that ground from its denial. The provider established prima facie entitlement to summary judgment. The insurer sought discovery and depositions concerning whether the treating physician was an employee, invoking CPLR 3212 (f), CPLR 3126, CPLR 3101, and CPLR 3106. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the defense was subject to preclusion; even a timely denial would not preserve a ground absent from the denial form. The insurer therefore failed to show that unavailable facts could justify opposition. The Appellate Term, Second Department, affirmed the provider's summary judgment and denial of the discovery cross motion on different grounds from the Civil Court.
Appellate Term, Second Department
Jul 1, 2013
2013 NY Slip Op 51109(U)
Provider prevailed
The insurer failed to establish proper mailing of EUO and IME scheduling notices supporting its nonappearance defenses. Under 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b), summary judgment required proof of timely initial and follow-up notices and nonappearance. The insurer did not establish follow-up EUO letters after the initial missed appointments. Its IME scheduler described mailing to the NF-2 address, but the actual letters went to two Bronx addresses rather than the Port Jefferson Station address on that form. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied summary judgment dismissing the second through fifth causes of action, leaving the provider's remaining contentions unaddressed.
Trial court, Second Department
Jul 17, 2013
2013 NY Slip Op 51239(U)
The insurer failed to establish noncooperation under Massachusetts law based on the assignor's failure to provide residency documents. The Civil Court, Kings County, applied Massachusetts law under the grouping-of-contacts approach because the policy and principal insurance contacts were in that state. Under Darcy v Hartford Ins. Co., noncooperation required a substantial and material breach, actual prejudice, and diligent, good-faith efforts to secure cooperation. The insurer obtained investigative reports and a recorded interview but did not establish that missing documents materially impaired its investigation. Questions also remained about reservation-of-rights notice and waiver. The court denied both summary judgment motions: the insurer rebutted the provider's prima facie showing but failed to establish its noncooperation defense.
Trial court, First Department
Jul 10, 2013
2013 NY Slip Op 51074(U)
Provider prevailed
The injured pedestrian's late notice was excused by documented diligence in identifying the vehicle and insurer. The Supreme Court, New York County, granted the claimant summary judgment declaring no-fault coverage and benefits, denied the insurer's cross motion, and referred the amount of benefits to a Special Referee under CPLR 4317 (b). The claimant was taken from the scene by ambulance, pursued identifying information, timely applied to MVAIC, and contacted the insurer when MVAIC identified it. Under 11 NYCRR 65-3.5, pedestrians' difficulty identifying insurers warranted consideration. Written notice followed the insurer's invitation to seek reconsideration, but the insurer did not reconsider. Its standing objection rested on an alleged assignment unsupported by evidence.
