Appellate Division, Second Department
Dec 26, 2013
2013 NY Slip Op 08616
Provider prevailed
The insurer failed to establish a verification toll because it offered no evidence of mailing a required follow-up request. The hospital established prima facie entitlement to summary judgment on its first cause of action for no-fault benefits. The insurer failed to raise a triable issue as to whether the hospital's nonresponse to an initial verification request extended the time to pay or deny. Under 11 NYCRR 65-3.6 (b), the insurer had to send a second request within 10 days after expiration of the initial 30-day response period. Following Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., the Appellate Division, Second Department, reversed the order denying the hospital's motion and granted summary judgment on that cause of action.
Appellate Division, Second Department
Dec 18, 2013
2013 NY Slip Op 08430
Split result
A provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1), admissible proof of mailing, receipt, and overdue payment sufficed; the claim forms need not establish the truth of their contents as business records. The billing agent's affidavit and postal ledgers established mailing and presumed receipt. The Appellate Division, Second Department, modified the order to grant the provider summary judgment except on one timely and sufficiently denied claim, remitting for calculation of benefits and determination of interest and attorney's fees. Leave to amend remained undecided; two justices dissented in part, requiring proof of the merits.
Appellate Division, First Department
Dec 12, 2013
2013 NY Slip Op 08347
Provider prevailed
The insurer failed to establish mailing of EUO scheduling letters and was denied a default judgment declaring no coverage. The Appellate Division, First Department, affirmed denial of the insurer's motion under CPLR 3215 (f) and the order compelling acceptance of two providers' late answers under CPLR 3012 (d). A computer inputting error explained the minimal delay, counsel acted promptly, and there was no history of willful neglect or prejudice. A meritorious defense was unnecessary for that relief, but the providers nevertheless showed insufficient evidence of proper EUO notification. The insurer's affidavit did not establish mailing in accordance with the no-fault regulations, and it supplied no objective proof of mailing.
Appellate Division, First Department
Dec 5, 2013
2013 NY Slip Op 08124
Insurer prevailed
An assignor's failure to attend an IME breaches a condition of coverage and does not require a timely denial. The insurer submitted competent evidence that it mailed the IME scheduling notices and that the injured claimant failed to appear. The provider's objection that notices were not shown to have been mailed to the assignor's attorney failed because the record lacked competent proof that the assignor was represented concerning the no-fault claim. The Appellate Division, First Department, reversed the denial of summary judgment, granted the insurer's motion, and declared that the insurer had no obligation to pay the provider's claims.
Appellate Term, First Department
Dec 24, 2013
2013 NY Slip Op 52212(U)
A stipulated chiropractic expert need not be certified in manipulation under anesthesia to assess those procedures' medical necessity. At trial, the parties stipulated to the insurer's chiropractor's credentials and expertise. During redirect, the trial court nevertheless precluded expert testimony about manipulation under anesthesia because the witness lacked certification to perform it, then directed a verdict for the provider. The stipulation qualified the witness as a chiropractic expert, and the lack of specialist certification affected the weight of the opinion rather than its admissibility. The Appellate Term, First Department, reversed the order and remanded for a new trial.
Appellate Term, Second Department
Dec 20, 2013
2013 NY Slip Op 52225(U)
Split result
The insurer proved the provider's EUO nonappearances but failed to establish timely payment of a separate claim. Its affidavits established timely EUO notices, nonappearance, and timely denials supporting dismissal of the first through sixth and ninth and tenth causes of action. EUO attendance was a condition precedent under 11 NYCRR 65-1.1. The provider had not responded to the scheduling letters, and counsel's opposing affirmation raised no triable issue. The seventh and eighth causes of action survived because, although payment was undisputed, the insurer did not prove its timeliness. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant summary judgment dismissing the eight EUO-based causes of action and otherwise affirmed the denial of dismissal.
Appellate Term, Second Department
Dec 20, 2013
2013 NY Slip Op 52220(U)
Insurer prevailed
The insurer established lack of medical necessity for supplies dispensed after its IME cutoff, despite a prescription written before the IME. An affirmed orthopedic IME report supplied a factual basis and medical rationale that the assignor's injuries had resolved and no equipment, testing, or treatment was needed. The insurer denied reimbursement effective December 18, and the prescription was filled December 21. The provider's attorney affirmation and prescription did not rebut the insurer's prima facie showing or raise a triable issue. The Appellate Term, Second Department, affirmed District Court, Nassau County's order granting the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 17, 2013
2013 NY Slip Op 52157(U)
Provider prevailed
The insurer's alternative request for summary judgment was premature because issue had not been joined before the motion. The insurer moved to dismiss under CPLR 3211 (a) and CPLR 3212 without specifying a subdivision of CPLR 3211 (a), and its papers established no ground for relief under that provision. CPLR 3212 (a) permits summary judgment only after joinder of issue. Because the insurer had not served an answer and Civil Court did not treat the motion under CPLR 3211 (c), summary judgment was unavailable. The Appellate Term, Second Department, reversed Civil Court, Kings County's order and denied the insurer's motion, while expressly passing on no other issue.
Appellate Term, Second Department
Dec 17, 2013
2013 NY Slip Op 52153(U)
Provider prevailed
The insurer's alternative request for summary judgment was premature because it moved before serving an answer and joining issue. The insurer sought dismissal under CPLR 3211 (a) and, alternatively, CPLR 3212. It identified no subdivision of CPLR 3211 (a), and its papers showed no basis for relief under any subdivision. Under CPLR 3212 (a), summary judgment required joinder of issue; without an answer or treatment of the motion under CPLR 3211 (c), Civil Court lacked power to grant it. The Appellate Term, Second Department, affirmed Civil Court, Kings County's denial of the insurer's motion and expressly passed on no other issue.
Appellate Term, First Department
Dec 13, 2013
2013 NY Slip Op 52128(U)
Insurer prevailed
MVAIC's motion for summary judgment dismissing the complaint was granted on appeal. The Appellate Term, First Department, reversed Civil Court, Bronx County's order, insofar as appealed from, denying that motion and directed entry of judgment for MVAIC, relying on the companion appeal decided the same day, No. 13-300, without giving independent reasoning.
Appellate Term, First Department
Dec 13, 2013
2013 NY Slip Op 52127(U)
Insurer prevailed
MVAIC may request verification to determine whether an assignor is a covered person entitled to no-fault benefits. The provider sought the difference between acupuncture charges and payments under the workers' compensation fee schedule. MVAIC established timely denial based on excessive fees, and the provider raised no triable issue concerning mailing, fee calculation, or tolling of the 30-day payment-or-denial period by a proper verification request. Following New York Hosp. Med. Ctr. of Queens v MVAIC, the coverage verification request was permissible; the provider's remaining challenges were unpreserved. The Appellate Term, First Department, reversed Civil Court, Bronx County's order, insofar as appealed from, and granted MVAIC summary judgment dismissing the complaint.
Appellate Term, First Department
Dec 13, 2013
2013 NY Slip Op 52131(U)
Provider prevailed
Conflicting medical expert opinions raised a triable issue concerning the necessity of the provider's diagnostic tests. The provider sought assigned first-party no-fault benefits for those tests, and the insurer moved for summary judgment dismissing the complaint. Both sides submitted medical expert opinions. The Appellate Term, First Department, affirmed the denial of the insurer's motion because those conflicting opinions sufficed to create a factual issue on medical necessity.
Appellate Term, Second Department
Dec 12, 2013
2013 NY Slip Op 52085(U)
Insurer prevailed
Conflicting evidence concerning delivery of requested verification prevented summary judgment for the provider. The insurer submitted proof that it had not received the verification, while the provider supplied an affidavit asserting that responsive material had been sent. Those submissions left a material factual issue unresolved in the action for assigned first-party no-fault benefits. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying the provider's motion and declined the insurer's request to search the record and grant summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 12, 2013
2013 NY Slip Op 52086(U)
Insurer prevailed
The provider failed to establish personal jurisdiction over the out-of-state insurer under CCA 404 (a). On renewal of its CPLR 3211 (a) (8) motion, the insurer supplied the previously missing certificate of conformity and an affidavit describing its Georgia offices and absence of New York business, policies, or employees. That evidence made a prima facie jurisdictional showing, shifting the burden to the provider. Counsel's affirmation lacked personal knowledge establishing any qualifying New York City contacts, and the provider did not establish entitlement to jurisdictional discovery. The Appellate Term, Second Department, affirmed the order granting renewal and, upon renewal, dismissing the complaint for lack of personal jurisdiction.
Appellate Term, Second Department
Dec 11, 2013
2013 NY Slip Op 52073(U)
Insurer prevailed
A provider that seeks a default judgment more than one year after default must explain the delay and show a meritorious cause of action. The provider offered no excuse for its delay, requiring dismissal as abandoned under CPLR 3215 (c). Although the insurer did not establish a basis for vacatur under CPLR 5015 (a) (3), the Appellate Term exercised its inherent discretionary power to vacate judgments in circumstances not specifically codified in CPLR 5015 (a). The Appellate Term, Second Department, reversed the order and granted the insurer's motion to vacate both the default judgment and the underlying order authorizing it, and to dismiss the complaint.
Appellate Term, Second Department
Dec 11, 2013
2013 NY Slip Op 52076(U)
Provider prevailed
The injured claimant's allegations of coverage, timely accident notice, and unpaid bills stated a cognizable no-fault cause of action. The complaint identified the applicable policy and alleged that it covered the claimant's vehicle and provided no-fault benefits. On the insurer's CPLR 3211 (a) (7) motion, the allegations required liberal construction and acceptance as true to determine whether they fit a cognizable legal theory. They also sufficiently notified the insurer of the transactions to be proved. The Appellate Term, Second Department, reversed the dismissal judgment, vacated the order granting dismissal, and denied the insurer's motion.
Appellate Term, Second Department
Dec 9, 2013
2013 NY Slip Op 52084(U)
Split result
A policy requiring interpretation under New Jersey law invokes that state's substantive law, rather than its conflict rules. The provider failed to prove medical necessity or improper payment within 60 days under NJSA § 39:6A-5 (g). The insurer's affidavit established timely fee-schedule payments on seven of ten claims; absence of a CPLR 2309 (c) conformity certificate was not fatal. Neither the policy nor NJSA § 39:6A-5.1 (a), implemented by NJAC § 11:3-5.1 (a), required dispute resolution here. The Appellate Term, Second Department, reversed the judgment, denied the provider summary judgment, and granted dismissal of the seven paid claims, leaving denial of dismissal of the remaining claims intact; it left further dispute-resolution questions open because neither party sought to compel it.
Appellate Term, Second Department
Dec 9, 2013
2013 NY Slip Op 23419
Insurer prevailed
An insurer's failure to send an NF-10 denial in duplicate does not, by itself, preclude an otherwise meritorious defense. The Appellate Term, Second Department, reversed the provider's judgment, vacated the order granting summary judgment, and denied the provider's motion. Although 11 NYCRR 65-3.8 (c) (1) requires duplicate denials, the court found no prejudice from receiving only one copy of the prescribed form and declined to follow Excel Imaging, P.C. v MVAIC to the extent it held otherwise. The insurer's timely denial and sworn peer review supplying a factual basis and medical rationale raised a triable issue of medical necessity. The court did not review the provider's prima facie showing because the insurer expressly declined to contest it on appeal.
Appellate Term, Second Department
Dec 3, 2013
2013 NY Slip Op 52031(U)
Insurer prevailed
The insurer cured a defective conformity certificate in reply and proved the assignor's EUO nonappearances with admissible evidence. The corrected certificate complied with Real Property Law § 299-a, including the presumptions concerning the signer's signature and qualifications under subdivision (2) (a). The accompanying out-of-state affidavit therefore should have been considered under CPLR 2309 (c). The conducting attorney established mailing of EUO notices through office practices and both nonappearances through personal knowledge; the insurer's employee affidavits established timely denials. Because EUO attendance was a condition precedent under 11 NYCRR 65-1.1, the Appellate Term, Second Department, reversed the order and granted the insurer summary judgment dismissing the complaint.
Appellate Term, Second Department
Dec 3, 2013
2013 NY Slip Op 23410
Provider prevailed
A claim for wrongfully withheld no-fault benefits against a self-insured public bus carrier is governed by a six-year limitations period. The self-insurer sought dismissal under CPLR 214 (2), arguing that its obligation arose solely from Insurance Law § 5103 and 11 NYCRR 65-2.1. The Appellate Term, Second Department, treated the self-insurer's obligations as equivalent to those of an insurer, discussing Vehicle and Traffic Law § 370 and Insurance Law § 5103 (a) (1). Following Mandarino v Travelers Prop. Cas. Ins. Co., it applied CPLR 213 (2) to an obligation both contractual and statutory. It affirmed the order, insofar as appealed from, which upon renewal adhered to denial of the self-insurer's motion for summary judgment.
Appellate Term, Second Department
Dec 3, 2013
2013 NY Slip Op 52032(U)
Insurer prevailed
The provider's unsubstantiated claim of law office failure did not excuse its four-year delay in seeking a default judgment. Under CPLR 3215 (c), a plaintiff that does not initiate judgment proceedings within one year after default must offer a reasonable excuse and demonstrate a meritorious complaint to avoid dismissal as abandoned. The provider moved for a default judgment more than four years after commencing the action, and the insurer cross-moved to dismiss. The Appellate Term, Second Department, found that denying the cross motion was an improvident exercise of discretion, reversed the order, insofar as appealed from, and granted dismissal of the complaint.
Trial court, Second Department
Dec 24, 2013
2013 NY Slip Op 23446
Provider prevailed
An insurer's late-notice denial must advise that the applicant may justify the delay and obtain reconsideration. The District Court, Nassau County, rejected the insurer's late-notice defense after trial and awarded the provider judgment on its no-fault claims. The assignors' NF-2 applications arrived approximately five weeks after the 30-day deadline, and no excuse was offered. Nevertheless, the denials failed to satisfy 11 NYCRR 65-3.3 (e): they declared reasonable justification unproven without explicitly advising that additional information could lead to reconsideration. The insurer also failed to prove that it had established review standards and procedures based on objective criteria under 11 NYCRR 65-3.5 (l). These deficiencies prevented the insurer from establishing its defense.
Trial court, Second Department
Dec 18, 2013
2013 NY Slip Op 52256(U)
Insurer prevailed
A substitute peer-review expert may testify at trial within the original report's grounds, even if that report is not admitted. The provider challenged testimony by a doctor who had not prepared the original peer review and admission of the underlying medical records. The Civil Court, Kings County, permitted the insurer to present that expert and proceed to trial. Following A-Quality Med. Supply v GEICO, the report itself could not establish lack of medical necessity at trial because it was not subject to cross-examination. Following Urban Radiology v Tri State Consumer Ins. Co., the underlying records supplied a hypothetical basis for the expert's opinion, rather than proof of their contents, so challenges to their reliability did not bar their use.
Trial court, First Department
Dec 12, 2013
2013 NY Slip Op 52277(U)
Insurer prevailed
The assignor's two IME nonappearances defeated coverage despite the providers' objection that the insurer's denial was late. The insurer submitted scheduling letters and evidence of its mailroom procedures. The opposing attorney's affirmation supplied no firsthand evidence challenging that proof, and the providers identified no evidentiary basis for further discovery. Applying First Department authority treating IME attendance as a condition precedent, Supreme Court found that the coverage defense survived the 30-day denial deadline. The Supreme Court, New York County, awarded summary judgment against the answering defendants and default judgments against the nonappearing defendants, declaring that neither the assignor nor the assignees could recover benefits for the accident.
