No-Fault Case Law
Psychology YM, P.C. v Nationwide Mut. Ins. Co. (2009 NY Slip Op 51634(U))
July 24, 2009
The provider failed to establish entitlement to summary judgment because its billing company's affidavit did not comply with CPLR 4518. In an action for assigned no-fault benefits, the Civil Court had granted the provider's motion and entered judgment in its favor. The Appellate Term, Second Department, deemed the insurer's appeal to be from that judgment under CPLR 5501 (c), reversed the judgment, vacated the summary judgment order, and denied the provider's motion. The court reached no other issue.
Andromeda Med. Care, P.C. v Utica Mut. Ins. Co. (2009 NY Slip Op 51629(U))
July 24, 2009
The insurer's out-of-state affidavits were inadmissible because their certificates of conformity were defective and the provider objected. The certificates failed to comply with Real Property Law § 299-a, rendering the affidavits noncompliant with CPLR 2309 (c). The Appellate Term, Second Department, modified the order to deny the insurer's motion for summary judgment dismissing the assigned no-fault claims. It affirmed the denial of the provider's cross motion for summary judgment and sanctions. The provider had not established that its billing records were admissible under CPLR 4518, and its remaining contentions lacked merit. Neither side obtained summary judgment.
J & S Med. Supplies, Inc. v Republic W. Ins. Co. (2009 NY Slip Op 51595(U))
July 22, 2009
The insurer's limitations-based dismissal motion was properly denied under the six-year statute of limitations. The Appellate Term, First Department, affirmed, citing the companion appeal decided the same day, Richard Denise, MD, P.C. v New York City Trans. Auth., No. 07-308. It assumed, without deciding, that the defendant qualified as a self-insurer.
Richard Denise, M.D., P.C. v New York City Tr. Auth. (2009 NY Slip Op 29313)
July 22, 2009
A no-fault claim against a self-insurer is subject to the six-year statute of limitations in CPLR 213 (2). The self-insurer argued that its strictly statutory liability required suit within three years, although an identical claim against an insured owner had a six-year period. The Appellate Term, First Department, rejected that distinction, reversed the dismissal order, denied the motion, and reinstated the provider's complaint. Mandatory no-fault obligations under Insurance Law § 5103 (a), Vehicle and Traffic Law § 321 (2), and Public Authorities Law § 1215 are not diminished by self-insurance. Following the contractual treatment of uninsured motorist claims in Matter of ELRAC, Inc. v Suero, the court found no legal or compelling policy basis for treating no-fault claims differently.
Horbul v Mercury Ins. Group (2009 NY Slip Op 05947)
July 21, 2009
A parent's slander complaint concerning a reported fraudulent no-fault claim was dismissed for failing to plead the particular words. The plaintiff alleged that the defendants committed slander per se by telling police that the plaintiff had filed a fraudulent claim for the plaintiff's son's no-fault medical benefits. CPLR 3016 (a) requires a defamation complaint to set forth the particular words complained of, and compliance is strictly enforced. The Appellate Division, Second Department, reversed the order, insofar as appealed from, and granted the defendants' CPLR 3211 (a) (7) motion to dismiss for failure to state a cause of action.
New York First Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 51593(U))
July 20, 2009
The provider's right to appeal directly from the discovery and amendment order terminated when judgment was entered in the action. The Civil Court had permitted the insurer to add a fraudulent-incorporation defense and directed the provider to produce its owner for a deposition within 60 days, with dismissal for noncompliance. After the provider failed to comply, the Civil Court dismissed the complaint with prejudice on the insurer's opposed application, and judgment was entered. Applying Matter of Aho, the Appellate Term, Second Department, dismissed the provider's appeal from the earlier order.
Sharma Med. Servs., P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 51591(U))
July 20, 2009
The insurer's detailed reasons to suspect fraudulent incorporation entitled it to depose the provider's owner. The provider opposed the insurer's CPLR 3126 motion to dismiss for inadequate discovery responses and failure to produce its owner, and sought a protective order. The Appellate Term, Second Department, reversed the order denying the insurer's motion and granting protection. The insurer had supplied detailed, specific reasons to believe the provider might be ineligible for reimbursement under Mallela, supporting disclosure under CPLR 3101 (a). The court denied the protective order and granted the insurer's motion only to the extent of directing the owner's deposition within 60 days of the appellate order or on an agreed date.
V.S. Med. Servs., P.C. v Allstate Ins. Co. (2009 NY Slip Op 29310)
July 20, 2009
An insurer may prove that a collision was intentional and outside no-fault coverage by a preponderance of the evidence. After a nonjury trial, the provider's complaint for assigned benefits was dismissed for lack of coverage. The provider argued that the insurer had to prove an insurance fraud scheme by clear and convincing evidence. The Appellate Term, Second Department, affirmed, explaining that the insurer needed to establish an intentional collision, not the elements of fraud. Following Fair Price Med. Supply Corp. v Travelers Indem. Co., the absence of an accident was the coverage issue. The insurer's unrebutted proof satisfied its burden.
D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51584(U))
July 14, 2009
The insurer's verification follow-ups mailed on the 30th calendar day were premature and did not toll its time to pay or deny. The Appellate Term, Second Department, affirmed judgment granting the provider summary judgment and implicitly denying the insurer's cross motion. Under General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the follow-ups were ineffective, leaving the 30-day period under 11 NYCRR 65-3.8 untolled. The late denials precluded defenses subject to timely denial; the insurer's submissions also failed to support its nonprecludable lack-of-coverage defense. The provider's billing-manager affidavit established admissibility under CPLR 4518, and the insurer's acknowledgment of receipt cured any deficiency in proof of claim mailing.
D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2009 NY Slip Op 51579(U))
July 14, 2009
The insurer's verification follow-ups mailed on the 30th calendar day were ineffective, defeating its argument that the action was premature. The Appellate Term, Second Department, affirmed judgment granting the provider summary judgment and implicitly denying the insurer's cross motion. Applying General Construction Law § 20 and 11 NYCRR 65-3.6 (b), the court found the follow-ups premature, so they did not toll the 30-day claim-determination period under 11 NYCRR 65-3.8. The provider's billing-manager affidavit established that its supporting documents were admissible under CPLR 4518. The insurer's claims representative conceded receipt of the claims, curing any deficiency in the provider's proof of mailing.