The no-fault

Appellate Division

M.N. Dental Diagnostics, P.C. v Government Employees Ins. Co., 2011 NY Slip Op 01333 (App. Div., 1st 2011)

Insurance Law § 5105(b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12(b) provides that "[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part."

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not "otherwise [] liable" for the payment of first-party benefits. However, 11 NYCRR 65-4.11(a)(6) provides that "any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section." Thus, as "the first insurer to whom notice of claim [was] given" (11 NYCRR 65-3.12[b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff's claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which "[c]learly . . . is an inter-company dispute subject to mandatory arbitration" (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]).

Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 01458 (App. Div., 2nd 2011)

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106[a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020).

In opposition to the plaintiff's motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff's claim. The defendant's denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286). Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the complaint and should have denied the defendant's cross motion for summary judgment dismissing the complaint.

Appellate Term

Edison Med. Servs., P.C. v Country-Wide Ins. Co., 2011 NY Slip Op 50193(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

In the case at bar, defendant proffered no reasonable excuse as to why it served its answer late. Defendant merely asserted that, due to a clerical error, the caption of the answer it ultimately served was incorrect. However, the purported document, which listed the wrong assignor, could not properly be characterized as an answer to the complaint. Moreover, the foregoing error did not establish an excuse for the untimely service of the answer. According to a paralegal employed by defendant's law firm, the answer was served on August 2, 2007, almost four months after the default judgment had been entered. In view of the lack of a reasonable excuse for defendant's default, it is unnecessary to consider whether defendant sufficiently demonstrated the existence of a meritorious defense (see Levi v Levi, 46 AD3d 519 [2007]). Accordingly, as the Civil Court did not improvidently exercise its discretion in denying defendant's motion, the order is affirmed.

Pesce, P.J., and Weston, J., concur.

There is a Golia dissent.

GLM Med., P.C. v State Farm Mut. Auto. Ins. Co., 2011 NY Slip Op 50194(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant established that the EUO scheduling letters were timely mailed in accordance with the affiants' employers' standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic [*2]Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant also submitted an affirmation from one of its attorneys, who was responsible for conducting the EUOs at issue. He alleged facts sufficient to establish that plaintiff had failed to appear at counsel's former law office for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Such an appearance at an EUO is a condition precedent to the insurer's liability on the policy (see Insurance Department Regulations [11 NYCRR]
§ 65-1.1; Stephen Fogel Psychological, P.C., 35 AD3d at 722; Crotona Hgts. Med., P.C. v Farm Family Cas. Ins. Co., 27 Misc 3d 134[A], 2010 NY Slip Op 50716[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Further, contrary to the Civil Court's determination, there is no requirement that EUO scheduling letters conspicuously highlight the time and place of the EUO by use of, among other things, a bold or larger font (see Insurance Department Regulations [11 NYCRR] § 65-3.5 [b], [e]). Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted. In light of the foregoing, we reach no other issue.

Infinity Health Prods., Ltd. v American Tr. Ins. Co., 2011 NY Slip Op 50195(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

Defendant's proof consisted of the affidavit of its special investigator and the police accident report. As the police accident report did not constitute proof in admissible form (see LMS Med. Care, P.C. v State Farm Ins. Co., 15 Misc 3d 141[A], 2007 NY Slip Op 51072[U] [App Term, 2d & 11th Jud Dists 2007]), and the special investigator's affidavit relied, in part, upon the police accident report, such proof did not establish, as a matter of law, that the alleged injuries did not arise from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]) so as to warrant the granting of summary judgment dismissing the complaint (see A.B. Med. Servs., PLLC v Clarendon Natl. Ins. Co., 25 Misc 3d 139[A], 2009 NY Slip Op 52383[U] [App Term, 9th & 10th Jud Dists 2009]). Accordingly, the order, insofar as appealed from, is affirmed.

ARCO Med. NY, P.C. v New York Cent. Mut. Fire Ins. Co., 2011 NY Slip Op 50184(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The affidavits submitted by defendant in support of its motion failed to establish that the IME scheduling letters had been mailed in accordance with Crossland's standard office practices and procedures or that the affiants had personally mailed the scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Accordingly, the Civil Court properly denied defendant's motion for summary judgment.

However, plaintiffs were not entitled to summary judgment upon their cross motion because the affidavit submitted by plaintiffs' supervisor of medical billing pertained to the claims at issue in another action, rather than the claims at issue in this action (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). As a result, plaintiffs did not establish their prima facie case (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Park Slope Med. & Surgical Supply, Inc. v GEICO Ins. Co., 2011 NY Slip Op 50188(U) (App. Term, 2nd, 11th & 13th Jud. Dists. 2011)

The papers submitted in support of defendant's cross motion for summary judgment included two peer review reports in admissible form, both of which set forth a factual basis and medical rationale for the peer reviewers' opinions that there was a lack of medical necessity for the medical supplies at issue. In opposition to defendant's cross motion, plaintiff submitted an affirmation of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Park Slope [*2]Med. & Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 141[A], 2009 NY Slip Op 50441[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the existence of a triable issue of fact as to the medical necessity of the medical supplies in question, defendant's cross motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

 

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