Appellate Division, Second Department
Feb 26, 2014
2014 NY Slip Op 01319
Insurer prevailed
The insurer raised a factual issue as to whether it mailed a proper denial 22 days after receiving requested verification. The provider's summary judgment motion rested solely on the alleged failure to pay or deny within 30 days under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (c). The insurer therefore needed only to raise a triable issue concerning timely denial, which its submissions did. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, denying the provider summary judgment. It did not reach the parties' arguments concerning the insurer's cross motion because the insurer had not appealed its denial.
Appellate Division, Second Department
Feb 19, 2014
2014 NY Slip Op 01166
Insurer prevailed
An insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8. The provider established prima facie entitlement to summary judgment on its first cause of action, but the insurer raised a factual issue concerning timely and proper denial under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). Minor errors in the claim and disputed amounts did not invalidate the denial under the circumstances. Attaching an unsworn, unaffirmed peer review report with a stamped signature that failed to comply with CPLR 2106 likewise did not invalidate it, because the report was not required. The Appellate Division, Second Department, reversed the order and denied the provider's motion.
Appellate Division, Second Department
Feb 5, 2014
2014 NY Slip Op 00639
Split result
Outstanding verification warranted dismissal of the first cause of action, but defective verification proof supported payment on the second. The insurer established timely initial and follow-up requests that the first provider did not answer, so payment was not overdue. For the second claim, the providers proved mailing, receipt, and no payment or denial within 30 days; they need not establish billing records' admissibility under CPLR 4518 (a). The insurer failed to show proper verification requests and waived claim-form deficiencies by not contesting them timely at the claims stage. The Appellate Division, Second Department, modified the judgment to grant the insurer summary judgment dismissing the first cause of action, affirmed the providers' recovery on the second, and remitted for an amended judgment.
Appellate Division, Second Department
Feb 5, 2014
2014 NY Slip Op 00655
Provider prevailed
The provider obtained summary judgment because neither the insurer's asserted verification request nor its denial was sent within 30 days. The provider submitted sufficient evidence that the prescribed billing form was mailed to and received by the insurer and that payment was overdue under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (a) (1) and (c). The insurer acknowledged receipt on November 4, but its purported verification letter was dated December 6 and its denial December 20. Those submissions raised no triable issue concerning timely handling of the claim. Applying 11 NYCRR 65-3.5 (b), the Appellate Division, Second Department, reversed the order denying the provider's motion and granted summary judgment on the complaint.
Appellate Division, Second Department
Feb 5, 2014
2014 NY Slip Op 00640
Provider prevailed
The providers established receipt of their claim and nonpayment or improper denial within 30 days, warranting summary judgment. Their submissions included a postal receipt showing the insurer received the prescribed NF-5 billing form and related documents, together with an affidavit from the person who mailed the form addressing the insurer's failure to pay or properly deny. That evidence satisfied the prima facie burden under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c). The insurer raised no factual issue concerning timely payment, denial, or additional verification requests. The Appellate Division, Second Department, affirmed the order, insofar as appealed from, granting the providers summary judgment on the first cause of action.
Appellate Division, Second Department
Feb 5, 2014
2014 NY Slip Op 00641
Provider prevailed
The insurer waived objections to deficient claim forms by failing to contest their adequacy timely at the claims stage. Following Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. and Fair Price Med. Supply Corp. v Travelers Indem. Co., the Appellate Division, Second Department, affirmed the judgment for the provider on the second cause of action. Admissible evidence that the prescribed billing form was mailed and received, with no payment or denial within 30 days, established the providers' prima facie entitlement to summary judgment. The insurer challenged only that showing on appeal, so the court did not address whether its opposition raised a triable issue. One justice concurred in the result on constraint of Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co.
Appellate Division, First Department
Feb 4, 2014
2014 NY Slip Op 00593
Insurer prevailed
The insurer's coverage-priority disclaimer did not repudiate the policy or excuse the claimant's untimely proof of claim. The compulsory arbitration awards rejected the injured claimant's claim for failure to comply with conditions precedent under 11 NYCRR 65-1.1 and 65-2.4 (c). The claimant had not submitted timely written proof describing the nature and extent of the injuries and treatment received and contemplated. The disclaimer was not sufficiently absolute or unequivocal to constitute repudiation. Finding the awards neither irrational nor contrary to settled law, the Appellate Division, First Department, reversed the order vacating them and directing a new arbitration, and reinstated the awards in the insurer's favor.
Appellate Division, First Department
Feb 4, 2014
2014 NY Slip Op 00613
Provider prevailed
The insurer was precluded from relitigating policy cancellation after a binding coverage arbitration with MVAIC. Under 11 NYCRR 65-4.11 and Insurance Law §§ 5105 and 5221 (b) (6), mandatory arbitration was the sole remedy for the intercarrier coverage dispute. The insurer submitted contentions asserting cancellation but did not appear, seek an adjournment to produce cancellation documents, or petition under CPLR 7511 to vacate the award. It therefore had a full and fair opportunity to contest the issue. The claimant's subsequent request for bodily injury benefits did not change the result, absent an agreement limiting the award's preclusive effect. The Appellate Division, First Department, affirmed the coverage order entered after a framed issue hearing.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50340(U)
Insurer prevailed
The insurer raised a triable issue of workers' compensation eligibility requiring initial resolution by the Workers' Compensation Board. The provider sought summary judgment on assigned no-fault claims, while the insurer sought dismissal based on the assignor's alleged eligibility for workers' compensation benefits. The insurer supplied sufficient evidence that the assignor might have been acting in the course of employment when the accident occurred. Following O'Rourke v Long, that issue belonged before the Board in the first instance. The Appellate Term, Second Department, affirmed the order holding both motions in abeyance pending a Board application under the Workers' Compensation Law. It also found the insurer's failure to submit conformity certificates nonfatal in the circumstances.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50343(U)
Provider prevailed
A provider may use an insurer's denial as an admission that the insurer received the claim referenced in it. At a nonjury trial, the provider authenticated the NF-10 as the denial received from the insurer, but the Civil Court excluded it and dismissed for failure to establish a prima facie case. The denial was offered as the insurer's admission of receipt, not as the provider's business record under CPLR 4518 (a). The provider also proved nonpayment, and the insurer consented to admission of the claim form. The Appellate Term, Second Department, reversed and remitted for judgment for the provider, with statutory interest and attorney fees under Insurance Law § 5106 (a) and the implementing regulations.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50346(U)
Provider prevailed
The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review. The insurer established timely mailing of denials based on lack of medical necessity and submitted a sworn chiropractic peer review supplying a factual basis and medical rationale for that determination. Those submissions established the insurer's prima facie entitlement to summary judgment. In opposition, however, the provider's sworn medical-necessity letter sufficiently demonstrated a factual dispute under Zuckerman v City of New York. The Appellate Term, Second Department, affirmed denial of the insurer's motion to dismiss the assigned no-fault claims by summary judgment.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50359(U)
Provider prevailed
The insurer's fraudulent-procurement defense was precluded because it failed to establish a timely denial on that ground. The insurer alleged that the assignor misrepresented the state where the insured vehicle was garaged and sought summary judgment dismissing the provider's assigned no-fault claim. The provider separately moved for summary judgment and established its prima facie entitlement. Following Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., the insurer's failure to prove a timely denial barred use of the procurement defense both affirmatively and in opposition. The Appellate Term, Second Department, reversed, granted the provider's motion, denied the insurer's motion, and remitted for statutory interest and attorney fees under Insurance Law § 5106 and the implementing regulations.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50347(U)
Insurer prevailed
Resubmission of an identical claim does not restart the insurer's 30-day period to pay or deny it. The insurer established its initial receipt of the hospital claim, timely initial and follow-up verification requests under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), and the provider's failure to respond. The provider relied on a later submission date but neither rebutted the earlier receipt nor showed compliance with the requests. Because verification remained outstanding, the action was premature under 11 NYCRR 65-3.8 (a). The Appellate Term, Second Department, reversed the order, insofar as appealed from, and, upon reargument and renewal, denied the provider's summary judgment motion and granted the insurer's cross motion dismissing the complaint.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50350(U)
Insurer prevailed
The insurer established a valid retroactive rescission of the assignor's Florida automobile policy for material misrepresentations. Its investigation showed that the assignor neither resided at the Florida address on the application nor garaged the vehicle there. Florida Statutes Annotated, title 37, § 627.409 permits retroactive cancellation for a material application misrepresentation. Florida law also requires notice of rescission and return or tender of all premiums within a reasonable time after discovery of the grounds. The insurer's litigation specialist's affidavit and accompanying documents established compliance, and the provider raised no triable issue concerning validity of the rescission. The Appellate Term, Second Department, reversed the order and granted the insurer's motion for summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50348(U)
Insurer prevailed
The insurer established lack of personal jurisdiction, and the provider failed to justify jurisdictional discovery. The Georgia-based insurer moved under CPLR 3211 (a) (8), submitting an affidavit describing its lack of New York business and insurance activities. Its papers showed no acts within New York City connected to the claim that supported long-arm jurisdiction under New York City Civil Court Act § 404. The provider's counsel merely suggested that the insurer might have a New York agent and sought discovery. That conclusory assertion neither rebutted the insurer's showing nor established that essential opposing facts might exist but were unavailable, as required by CPLR 3211 (d). The Appellate Term, Second Department, affirmed dismissal of the complaint.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50349(U)
Provider prevailed
The insurer's renewal motion failed because it offered no reasonable justification for initially submitting an unsworn affidavit. The provider obtained summary judgment after the insurer's affidavit supporting an IME nonappearance defense was rejected for lack of notarization. The insurer then submitted a properly sworn version and sought vacatur, renewal, and reargument. Under CPLR 2221 (e), facts in a document previously rejected as inadmissible may qualify as new facts, but CPLR 2221 (e) (3) requires reasonable justification for the original omission. The insurer supplied none. Its reargument request was also untimely under CPLR 2221 (d) (3). The Appellate Term, Second Department, affirmed the order denying the insurer's motion, leaving the provider's judgment in place.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50354(U)
Provider prevailed
22 NYCRR 208.14 does not authorize dismissal of a Civil Court complaint as abandoned after it is stricken from the calendar. The provider's no-fault action was marked off the trial calendar, and the insurer sought dismissal because the provider had not moved to restore it within one year. Following Chavez v 407 Seventh Ave. Corp., the Appellate Term, Second Department, reversed the dismissal and denied that branch of the insurer's motion. The insurer had alternatively sought dismissal under CPLR 3126 for failure to provide requested disclosure. Because the Civil Court had not addressed that branch, the appellate court remitted for its determination, leaving the discovery-sanction issue unresolved.
Appellate Term, Second Department
Feb 28, 2014
2014 NY Slip Op 50357(U)
Provider prevailed
The insurer failed to establish timely EUO requests because the record omitted the dates it received the provider's claims. The insurer sought summary judgment dismissing the assigned no-fault action based on the provider's failure to appear for an EUO. Under 11 NYCRR 65-3.5 (b) and 65-3.6 (b), it had to demonstrate timely mailing of both the initial and follow-up requests. Without claim-receipt dates, it could not establish that the requests tolled the time to pay or deny or that its nonappearance defense escaped preclusion. The Appellate Term, Second Department, affirmed denial of the insurer's motion.
Appellate Term, First Department
Feb 27, 2014
2014 NY Slip Op 50263(U)
Insurer prevailed
An assignor's failure to attend requested IMEs permits retroactive denial of all claims to the loss date regardless of denial timeliness. The insurer's litigation examiner established timely and proper mailing of IME notices, and the examining physician's and employee's sworn affidavits established nonappearance. The provider neither specifically denied nonappearance nor raised a factual issue concerning it or the notices' mailing or reasonableness. Following American Tr. Ins. Co. v Lucas and Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, the Appellate Term, First Department, reversed the order, insofar as appealed from, and granted the insurer's summary judgment motion dismissing the complaint in its entirety.
Appellate Term, Second Department
Feb 14, 2014
2014 NY Slip Op 24048
Insurer prevailed
The out-of-state insurer established a lack of personal jurisdiction, and the provider failed to supply contrary evidentiary facts. The Appellate Term, Second Department, affirmed summary judgment dismissing the complaint upon renewal and reargument, on grounds different from the Civil Court's. A missing conformity certificate under CPLR 2309 (c) was nonfatal under CPLR 2001, permitting review of the corporate officer's affidavit. The insurer was unauthorized in New York and demonstrated that it and its related entities conducted no insurance business or other business there. Jurisdiction therefore could not rest on Insurance Law § 1212, Insurance Law § 1213 (b) (1), or CCA 404. An insured's unilateral act of driving into New York was insufficient to establish long-arm jurisdiction.
Appellate Term, Second Department
Feb 11, 2014
2014 NY Slip Op 50184(U)
Insurer prevailed
The insurer's cross motion to dismiss was timely under a so-ordered stipulation and should have been considered on its merits. In the provider's action for assigned no-fault benefits, the parties agreed that the cross motion complied with the stipulated service deadline. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and remitted the matter to Civil Court for a determination of the merits under CPLR 3211 (a) (5).
Appellate Term, Second Department
Feb 7, 2014
2014 NY Slip Op 50224(U)
Insurer prevailed
The insurer established that the provider had sued the wrong carrier because another insurer had issued the policy covering the accident. The provider moved for summary judgment on its assigned no-fault claims, and the defendant insurer cross-moved for dismissal based on lack of coverage. Affidavits from the defendant's litigation manager and the other insurer's claims litigation manager established the defense; the latter attested that the other insurer had issued the policy. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's cross motion seeking summary judgment dismissing the complaint.
Appellate Term, Second Department
Feb 7, 2014
2014 NY Slip Op 50219(U)
Insurer prevailed
The insurer's unrebutted medical testimony, found wholly credible at trial, established that the traction units lacked medical necessity. The parties stipulated that medical necessity of the supplied devices was the only trial issue. The insurer's doctor testified that the cervical and lumbar traction units were unnecessary and supplied a factual basis and medical rationale for that conclusion. The provider called no rebuttal witnesses. Given that evidence and the Civil Court's express credibility finding, the Appellate Term, Second Department, disagreed with the determination that the insurer had failed to carry its burden. It reversed the provider's judgment after the nonjury trial and remitted for entry of judgment for the insurer dismissing the complaint.
Trial court, Second Department
Feb 18, 2014
2014 NY Slip Op 50200(U)
Provider prevailed
The provider's no-fault claim was not barred by collateral estoppel based on dismissal of its assignor's federal personal injury action. The federal court had found insufficient admissible evidence to defeat summary judgment, without definitively determining whether the insured truck struck the assignor. The District Court, Nassau County, denied the insurer's motion to dismiss or for summary judgment. Following Gramatan Home Investors Corp. v Lopez, Magic Recovery and Ideal Med. Supply, it rejected privity based on the assignment and concluded that the provider had not been afforded an opportunity to be heard. It declined to follow the contrary ruling in Triboro.
