No-Fault Case Law
New York Cent. Mut. Ins. Co. v McGee (2011 NY Slip Op 06253)
August 16, 2011
Severance is inappropriate where common factual and legal issues favor a single trial of an alleged fraudulent-incorporation scheme. The insurer alleged that 12 provider corporations used one physician's license to conceal ownership and control by unlicensed persons. The Appellate Division, Second Department, modified the order, insofar as appealed from, to eliminate sua sponte severance and dismiss the providers' counterclaims under CPLR 3211 (a) (7). Those counterclaims sought medical payments coverage, which is excess over mandatory no-fault coverage under 11 NYCRR 65-1.1, without alleging payments exceeding the $50,000 basic-economic-loss threshold. The insurer prevailed on severance and dismissal, although its separate CPLR 3211 (a) (3) contention that the providers lacked standing was rejected.
Q-B Jewish Med. Rehabilitation, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51551(U))
August 10, 2011
The insurer justified financial and tax discovery on provider eligibility, but the provider's remaining discovery responses were sufficient. The Appellate Term, Second Department, modified the order, insofar as appealed from, limiting compelled disclosure to bank records, income and payroll tax filings, W-2 or 1099 forms, and a subsequent owner deposition. Detailed licensing concerns under Mallela supported discovery under CPLR 3101 (a); bank records were material and necessary, and special circumstances justified tax disclosure. Additional responses to other demands were unwarranted. The court upheld striking the action from the trial calendar because the readiness certificate misstated completed discovery. Considering the insurer's slightly late motion was within the Civil Court's discretion under CPLR 2004 and 22 NYCRR 208.17 (c).
Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))
August 5, 2011
The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the insurer's cross motion for summary judgment dismissing the provider's complaint. The Civil Court had found the denial forms timely under CPLR 3212 (g), but concluded that the peer review did not establish the defense. The appellate court found the affirmed report sufficient to support the reviewing doctor's determination that the services were medically unnecessary. The provider did not rebut that showing or challenge the finding of timely denials. Those circumstances entitled the insurer to judgment.
Baldwin Acupuncture, P.C. v Allstate Ins. Co. (2011 NY Slip Op 51536(U))
August 4, 2011
The provider failed to justify vacating its settlement, but vacatur of the default judgment was not authorized by the settlement or motion. The Appellate Term, Second Department, modified the order by restoring the default judgment and directing entry of satisfaction under CPLR 5021, while affirming denial of settlement vacatur. After a default judgment, the parties signed a settlement and the provider cashed the insurer's payment checks. Under CPLR 2104 and Hallock v State of New York, the signed stipulation was binding absent grounds sufficient to invalidate a contract. The provider showed neither mutual mistake, a qualifying unilateral mistake, nor fraudulent inducement. However, neither the stipulation nor the insurer's motion requested vacatur of the default judgment, so that relief was improper.
Neomy Med., P.C. v GEICO Ins. Co. (2011 NY Slip Op 51532(U))
August 4, 2011
An insurer need not annex or establish a hearsay exception for medical records used in a peer review that assumes their facts are true. 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. The insurer established timely denial and submitted an unrebutted peer review with a factual basis and medical rationale for lack of necessity. The review addressed whether treatment was necessary assuming the records' facts, rather than proving the injuries or treatment described. Following Urban Radiology, P.C. v Tri-State Consumer Ins. Co., no hearsay foundation was required. A separate concurrence questioned the mailing affidavit's sufficiency but joined the result as constrained by precedent.
Shoreline Healing Acupuncture Group, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 51531(U))
August 4, 2011
The insurer established timely IME notices and denials and both assignors' nonappearance, defeating a condition precedent to coverage. 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. The Civil Court had denied both sides' motions and limited trial to late submission of bills under CPLR 3212 (g). An employee of the IME scheduling company established timely notices through standard office practices, and the scheduled chiropractor established the nonappearances. The insurer also proved timely mailing of denials. Under 11 NYCRR 65-1.1 and Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., those failures to attend warranted dismissal. Remaining appellate contentions lacked merit or did not require determination.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))
August 4, 2011
A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint in the insurer's favor. The insurer did not attach the bill, but the complaint identified the sole bill under CPLR 3013 and was included with the motion as CPLR 3212 (b) required. There was therefore no uncertainty about the claim at issue. The insurer used the denial form to establish that it was sent and the claim denied, rather than to prove service dates, services, or charges. Because that use was not hearsay, a business-record foundation was unnecessary. The provider's remaining contentions lacked merit.
Farragut Corner Medical, P.C. v MVAIC (2011 NY Slip Op 51529(U))
August 4, 2011
An assignor's status as a qualified person under Insurance Law § 5202 (b) does not depend on MVAIC's receipt of a household affidavit. MVAIC acknowledged receiving a sworn notice of intention to make a claim under Insurance Law § 5208 but argued that the missing household affidavit defeated the provider's entitlement to summary judgment. The Appellate Term, Second Department, rejected that argument. Deeming the appeal taken from the ensuing judgment under CPLR 5501 (c), it affirmed the judgment awarding the provider assigned no-fault benefits.
W.H.O. Acupuncture, P.C. v Geico Indem. Co. (2011 NY Slip Op 51530(U))
August 4, 2011
An insurer may reimburse a licensed acupuncturist under the workers' compensation fee schedule for acupuncture performed by chiropractors. The provider sought additional assigned no-fault benefits, and the insurer cross-moved for summary judgment based on proper reimbursement. The Appellate Term, Second Department, rejected the provider's contention that a later order correcting the award's mathematical error affected the appeal: the judgment remained unamended, and the correction did not alter the liability findings challenged by the insurer. Deeming the appeal taken from the judgment under CPLR 5501 (c), the court reversed the judgment, vacated the underlying order, denied the provider's summary judgment motion, and granted the insurer's cross motion dismissing the complaint.
Eagle Surgical Supply, Inc. v QBE Ins. Co. (2011 NY Slip Op 51456(U))
July 28, 2011
The provider failed to supply the factual proof required for unconditional entry of a default judgment under CPLR 3215 (f). The Appellate Term, Second Department, affirmed an order allowing the insurer 30 days to answer and permitting judgment only if it failed to do so. Although the provider's default motion was unopposed, it supplied neither a verified complaint nor an affidavit from a party with personal knowledge establishing the claim's factual basis. Its affiant did not establish employment by the provider, personal knowledge, or admissibility of the annexed documents under CPLR 4518. The deficient papers therefore did not establish entitlement to the unconditional default judgment the provider sought on appeal.