New York No-Fault Law | New York No Fault Paradise

Another no-fault defamation case

Written on February 6, 2010 by David M. Gottlieb

I posted one a few months ago. Once I find it, I’ll give the cite.

Hame v Lawson, 2010 NY Slip Op 00811 (App. Div., 2nd, 2010)

The plaintiff allegedly was struck by an automobile driven by Igal Shaul. She filed a claim for no-fault benefits with Shaul’s insurer, the defendant Response Insurance Company (hereinafter RIC). After conducting an investigation, including examinations under oath of the plaintiff and Shaul, RIC denied her claim, concluding that she had made “material misrepresentations and false statements” and that the incident was a “deliberate[ly] staged event.” The denial of claim form was sent to three medical providers who had treated the plaintiff. After a referee determined that Shaul had been involved in the accident, the plaintiff brought this action alleging that she had been defamed when RIC sent the denial to her medical providers.

Contrary to the plaintiff’s contention, the Supreme Court properly granted the defendants’ motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action. The statements made in the denial of claim form were subject to a qualified privilege as both RIC and the medical providers treating the plaintiff had an interest in that communication (see Golden v Stiso, 279 AD2d 607, 608). In order to overcome the privilege, the plaintiff was required to allege that RIC’s statements were made solely with malice, either under the constitutional or common-law standard (see Liberman v Geldstein, 80 NY2d 429, 438; Rohrlich v Consolidated Bus Tr., Inc., 15 AD3d 561, 562). “The plaintiff failed to allege any facts from which malice could be inferred and [her] conclusory allegations of malice were insufficient to overcome the privilege” (Red Cap Valet v Hotel Nikko [USA], 273 AD2d 289, 290; see Rohrlich v Consolidated Bus Tr., Inc., 15 AD3d at 562; Serratore v American Port Servs., 293 AD2d 464; Freidman v Ergin, 110 AD2d 620, affd 66 NY2d 645; see also Breytman v Olinville Realty, LLC, 54 AD3d 703, 704; Baker v City of New York, 44 AD3d 977, 981). [*2]

The plaintiff’s remaining contention that the motion should have been denied as premature is without merit (see CPLR 3211[d]; Gabrielli Truck Sales v Reali, 258 AD2d 437).

Note the reference to 3211(d), which is the equivalent of 3212(f).

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SCOTUS FACTS

Written on February 6, 2010 by David M. Gottlieb

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The book I ordered on the SCOTUS was delivered about two weeks ago and it’s full of interesting information about the SCOTUS justices. Here are a few:

John Jay: hated his job
John Marshal: hated Thomas Jefferson, loved horseshoes
Salmon Chase: his face was on the $1.00 bill and the $10,000.00 bill.
James Clark McReynolds: hated everyone, everyone hated him.
Benjamin Cardozo: passed the bar having never received a law degree
William O. Douglas: nicknamed “wild bill”
Thurgood Marshall: loved days of our lives
Warren Burger: really wanted to wear fancy wigs
Lewis Powell: regretted having to give up his law practice

All in all, it’s a worthwhile read.

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Excellent Discussion of 3211(a)(1)&(5)

Written on February 5, 2010 by David M. Gottlieb

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I’ve been saying this for some time. Procedurally, I think it’s dead on.

Dynamic Med. Imaging P.C. v State Farm Fire & Cas. Co., 2010 NY Slip Op 20030 Dist Ct Nassau County, First Dist (2010)

In this action for recovery of assigned, first party no-fault benefits for medical services provided to plaintiff’s assignor, the defendant moves for an Order (a) dismissing Plaintiff’s complaint, with prejudice, pursuant to CPLR Rule 3211(a)(1) and (7); or, alternatively, (b) dismissing Plaintiff’s complaint, on the ground that the present action is premature; and (c) for such other, further and different relief as this Court may deem just and proper.

At first blush, there is no dispute that the complaint does allege a valid claim for recovery of assigned, first party no-fault benefits. However, in this pre-answer motion, defendant asserts that the validity of the claim cannot be sustained in view of other extrinsic facts. Defendant asserts it has reason to believe that the plaintiff, a professional corporation, is ineligible to receive no-fault benefits under applicable insurance regulations because the professional corporation is neither owned nor controlled by a licensed physician. In further pursuit of its investigation of this belief, the defendant alleges that it sought additional verification in response to plaintiff’s submission of the bills at issue in this action, but received no response.

In addition, the defendant alleges that it scheduled two Examinations under Oath ( EUO”), but the plaintiff’s principal failed to appear on both occasions. These allegations, memorialized by several affidavits annexed to the motion, together with copies of what may be business records once a proper business record foundation is laid, constitute the evidentiary material supporting the movant’s request for an order dismissing the complaint based upon its claim of a defense based upon documentary evidence or, in the alternative, dismissal based upon plaintiff’s failure to state a valid cause of action.

Turning first to defendant’s request for an order pursuant to CPLR 3211(a)(1), dismissing the complaint on the ground that it has a defense founded upon documentary evidence, this Court [*2]notes that the standard for dismissal under this subsection was discussed recently by the Honorable Leonard Austin in Symbol Technologies, Inc. v Deloitte & Touche, LLP, __ AD3d ____ , 888 NYS2d 538, 2009 NY Slip Op. 07826 (2d Dep’t 2009). Justice Austin explained that “to obtain dismissal pursuant to CPLR 3211(a)(1) the defendant must establish that the documentary evidence which forms the basis for the defense be such that it resolves all factual issues as a matter of law and conclusively disposes of the plaintiff’s claim.” 888 NYS2d 538, 539. “Such motion may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law.” Goshen v Mutual Life Ins. Co. of NY , 98 NY2d 314, 326 (2002).

For guidance as to the what type of evidence would satisfy the appellate standard, resort to cases in which dismissal was upheld reveals that such evidence is generally more dispositive than the simple affidavits of fact presented here. Collective bargaining agreements (Sheridan v Town of Orangetown, 21 AD3d 365 [2d Dept 2005]), contracts, assignments (Leon v Martinez, 84 NY2d 83 [1994]), general releases, proof of judgment in another forum (Heaney v Purdy, 29 NY2d 157 [1971]), invoices and cancelled checks (Mark Hampton, Inc. v Bergeen, 173 AD2d 220 [1st Dept 1991]) are just some examples of the type of documentary evidence generally upheld by the courts in dismissals pursuant to Rule 3211(a)(1). Put simply by Professor Siegel in his 2008 Practice Commentaries to CPLR Rule 3211, the “documentary evidence standard is a hard one to meet” Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B.

In this case, defendant’s offer of proof may well sustain a motion for summary judgment in its favor if left unchallenged by plaintiff; however, in its present context, as support for a CPLR Rule 3211(a)(1) motion that does not require plaintiff to lay bare its proof, it does not suffice.

Turning to the second branch of the motion seeking an order pursuant to CPLR Rule 3211(a)(7) dismissing the complaint for failure to state a cause of action, the Court’s inquiry begins with the caveat that the pleadings must be liberally construed and all factual allegations contained therein accepted as true. Leon v. Martinez, supra ; Kempf v. Magida, 37 AD3d 763Sokoloff v Harriman Estates Dev. Corp, 96 NY2d 409 (2001). (2d Dept 2007). Plaintiff is accorded the benefit of every possible favorable inference to determine if the facts as alleged fit any cognizable legal theory.

Again, in the case at bar, there can be no dispute that the complaint sets forth the bare essential elements of a claim for recovery of assigned first party no-fault benefits. The inquiry would end here except for defendant’s submission of several affidavits and other extrinsic evidence that serve to broaden the Court’s inquiry from an evaluation of whether plaintiff stated a cause of action to an inquiry into whether plaintiff has a valid cause of action.Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 (1976); Lawrence v Miller, 11 NY3d 588 (2008). In this regard, it has been held that affidavits submitted by the defendant “will seldom if ever warrant the relief he seeks unless the affidavits establish conclusively that plaintiff has no cause of [*3]action.” Rovello v Orofino, 40 NY2d 633, 636.

“When evidentiary material is considered, the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, again dismissal should not eventuate.” Guggenheim v. Ginzburg, 43 NY2d 268, 276 (1977). Since plaintiff herein was not required to dispute defendant’s factual assertions, this Court does not know, on the record before it, whether any significant factual dispute exists. Lawrence v Miller, supra .

The defendant has furnished this Court with numerous decisions from colleagues of distinction who have granted judgment in its favor under facts identical to the case at bar. Based on its review of the complaint, this Court is constrained to find that the facts as alleged, do state a cause of action. However, the Court also finds that plaintiff’s entitlement to relief has been factually disputed by defendant’s submission of extrinsic evidence supporting affirmative defenses to defendant’s obligation to pay the claims at issue.

Within the procedural context of a Rule 3211 motion, plaintiff is not required to refute the factual allegations set forth in the moving papers unless the Court gives prior notice to the parties pursuant to CPLR Rule 3211(c) that it intends to treat this pending motion as one for summary judgment. Rovello v. Orofino Realty Co., Inc., 40 NY2d 633, 636.

Thus, in order to put plaintiff to its proof and expeditiously resolve the issues raised herein, let the parties take notice that this Court hereby intends to treat the instant motion as one for summary judgment in accordance with CPLR Rule 3211(c) which provides, inter alia:

(c) . . . . Whether or not issue has been joined, the court, after adequate notice to the parties, may treat the motion as a motion for summary judgment. . .

In accordance with the date set by counsel upon submission of this motion, the parties are directed to appear before the undersigned on the 2nd day of February, 2010 to establish a supplemental motion schedule. All other issues are deemed moot in view of the foregoing.

Compare with Dynamic Med. Imaging, P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 29478 (Dist. Ct. Nassau, 2009)

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Lots from the Appellate Term

Written on February 4, 2010 by David M. Gottlieb

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B.Y., M.D., P.C. v Government Empl. Ins. Co., 2010 NY Slip Op 20026 (App. Term, 2nd, 2010)

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment,” asserting that, pursuant to CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), the District Court should determine that plaintiffs had established their prima facie case with respect to their first cause of action. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The District Court denied plaintiffs’ motion, and this appeal by plaintiffs ensued.

Plaintiffs’ contention that, pursuant to either CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), they were entitled to “partial summary judgment” determining that they had established their prima facie case with respect to their first cause of action lacks merit. The branch of plaintiffs’ motion seeking “partial summary judgment” pursuant to CPLR 3212 (e) was properly denied as the relief requested would not conclusively dispose of the merits of plaintiffs’ first cause of action or even a part of that cause of action (see CPLR 3212 [e]).

Similarly, relief pursuant to CPLR 3212 (g) is not available to plaintiffs. This provision states that “[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible.” As the court did [*2]not deny, or grant in part, a motion which sought summary judgment conclusively disposing of the merits of plaintiffs’ cause of action, plaintiffs’ motion seeking a limitation of issues of fact for trial pursuant to CPLR 3212 (g) was properly denied (see Siegel, Supp Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:35; see generally E.B. Metal and Rubber Indus. v County of Washington, 102 AD2d 599 [1984]).

First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 2010 NY Slip Op 50149(U) (App. Term, 2nd, 2010)

In addition, defendant’s argument that the affidavit of plaintiff’s billing manager was insufficient to establish that plaintiff had submitted the claims at issue to defendant lacks merit in light of the affidavit of defendant’s claims representative in which receipt of the claims in question was conceded (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
It is undisputed that defendant timely mailed its initial requests for verification and that plaintiff failed to provide the information requested. Plaintiff also did not provide the information requested in defendant’s follow-up verification requests, which were mailed on the 30th day after the initial verification requests but prior to the expiration of the full 30-day period within which plaintiff was supposed to respond to defendant’s initial requests for verification. As the foregoing facts are nearly identical to those in Infinity Health Prods., Ltd. v Eveready Ins. Co. (67 AD3d 862 [2009]), “the 30-day period within which the defendant was required to pay or deny the claim did not commence to run . . . [and] plaintiff’s action is premature” (id. at 865).

While defendant denied the claims underlying plaintiff’s first and fifth causes of action on the ground that plaintiff sought to recover in excess of the fee schedule by ” unbundling’ the service[s] into . . . separate bill[s]” even though such services “are considered part of the initial medical evaluation,” defendant did not submit an affidavit from someone with sufficient expertise to establish that ground as a matter of law or even to demonstrate the existence of a triable issue of fact with respect to the billing for such services (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13Kingsbrook Jewish Med. Ctr., 61 AD3d at 23). [2009]). As a result, defendant “failed to raise a triable issue of fact in admissible evidentiary form sufficient to warrant denial of summary judgment in favor of [plaintiff] on the [first and fifth] cause[s] of action” (

Innovative Chiropractic, P.C. v Progressive Ins. Co., 2010 NY Slip Op 50148(U) (App. Term, 2nd, 2010)

In opposition to plaintiff’s motion, defendant submitted the affidavit of defendant’s litigation representative, which established that defendant’s denial of claim form was timely mailed in accordance with defendant’s standard office practice and procedure (see 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]). However, said affidavit did not mention the bill for $33.70 for services rendered on January 19, 2007. Although defendant’s counsel asserted that such bill was denied as duplicative, since counsel did not establish that he possessed personal knowledge of the pertinent facts, defendant failed to demonstrate the existence of a triable issue of fact with respect thereto and, thus, plaintiff was properly awarded summary judgment with respect to said bill (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In contrast, defendant did demonstrate that the applicable insurance policy contained a $200 deductible (see Insurance Department Regulations [11 NYCRR] § 65-1.6) and that defendant timely denied $200 of the claim at issue due to said deductible (see Insurance Law § 5102 [b] [3]). Consequently, under the circumstances presented herein, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the complaint with respect to the bills totaling $200, which bills defendant had denied based upon the $200 deductible (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Great Wall Acupuncture v GEICO Gen. Ins. Co., 16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]).

B.Y., M.D., P.C. v Progressive Cas. Ins. Co., 2010 NY Slip Op 50144(U) (App. Term, 2nd, 2010)

In support of defendant’s cross motion for summary judgment, defendant annexed, among other things, an affirmed peer review report by a doctor, an affirmation by a doctor who had performed an independent medical examination and an affidavit by a chiropractor who had performed an independent medical examination. Since the foregoing documents set forth a factual basis and medical rationale for the doctors’ and chiropractor’s opinions that the services, [*2]which are the subject of the claims at issue, were not medically necessary, defendant established, prima facie, a lack of medical necessity for such services (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

In opposition to the cross motion, plaintiffs submitted an affirmation from the doctor who had treated plaintiffs’ assignor, which affirmation was apparently missing at least one page. The portion of the affirmation which was contained in the record was insufficient to raise a triable issue of fact as it did not meaningfully refer to, or discuss, the determination of defendant’s doctors and chiropractor (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, defendant’s cross motion, insofar as it sought to dismiss various claims of plaintiffs on the ground of lack of medical necessity, was properly granted (see Exclusive Med. Supply, Inc., 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U]; Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Pan Chiropractic, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U]). Accordingly, the order, insofar as appealed from, is affirmed.

WJJ Acupuncture, P.C. v Liberty Mut. Fire Ins. Co., 2010 NY Slip Op 50146(U) (App. Term, 2nd, 2010)

Since the “affidavit” was not signed by the purported affiant, it did not constitute evidence in admissible form (see Hargrove v Baltic Estates, 278 AD2d 278 [2000]; Huntington Crescent Country Club v M & M Auto & Mar. Upholstery, 256 AD2d 551 [1998]; New Dorp Ch. 2712 of AARP, Inc. v A.A.W. Travel, Inc., 22 Misc 3d 141[A], 2009 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Comprehensive Mental Assessment & Med. Care v Merchants & Businessmen’s Mut. Ins. Co., 196 Misc 2d 134 [2003]). As the affirmation of plaintiff’s counsel was insufficient to establish plaintiff’s prima facie case (Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]), plaintiff’s motion for summary judgment was properly denied.

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The Short Walk

Written on February 2, 2010 by David M. Gottlieb

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DOMOTOR

Written on February 1, 2010 by David M. Gottlieb

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Dugo v Allstate Ins. Co., 2010 NY Slip Op 50102(U) (Civ Ct City NY, Richmond County)

The sole issue presented at trial was whether a plaintiff medical provider is excused from submitting its bills to a defendant insurance company after the company has issued a general denial to the plaintiff. Defendant requests that this case be dismissed due to plaintiff’s failure to timely submit its bills.

Defendant Allstate Insurance Co. (“defendant” or “Allstate”) issued a general denial dated June 14, 2006, based upon an independent medical examination ( “IME”) performed upon the assignor Kristin Puma (“Assignor” or “Puma”) wherein the doctor utilized by defendant determined that no further medical services were necessary ( “IME cut-off date). The assignor continued to undergo medical treatment, including chiropractic treatment from plaintiff J. R. Dugo, D.C. (“Dugo” or “plaintiff”), from August 22nd through December19, 2006. Plaintiff never submitted its bills to Allstate and Allstate consequently never issued a denial, verification request or paid the above claim.

Plaintiff contends that once defendant issues a general denial which predates any services provided by plaintiff, it is no longer under an obligation to submit claims within 45 days of the date of service. Defendant contends that its general denial does not obviate plaintiff’s obligation, under the No – Fault Law, to submit a claim within 45 days.

Defendant’s attempt to distinguish the current factual situation from the governing case of Mtr. Of State Ins Co. V. Domotor, 266 AD3d 219 (2d Dept. 1999) is unavailing. In Domotor, supra, the insurance company initially provided medical benefits to the appellant assignor but then issued an IME cut-off denial based upon its expert’s opinion that the assignor no longer needed medical treatment.The assignor nevertheless continued to obtain medical care although she submitted no further claims to the insurance company . She subsequently demanded arbitration to resolve the issue of the insurance company’s liability. [*2]

The court ruled that once an insurance company had unequivocally repudiated liability on the claim by sending a letter disclaiming coverage, it could not “insist upon adherence to the terms of its policy.” 266 AD2d at 220. The insurance company’s letter of disclaimer thus negated the insured’s otherwise absolute obligation to comply with the conditions precedent under the policy to provide a timely written proof of loss. Id at 220-21. The assignor was therefore entitled to arbitrate her claim that she was entitled to such medical benefits following the issuance of the denial, even though the bills for those services were never submitted to the insurer prior to her demand for arbitration. Id.

Dormitor was further explained in Mtr. Of Arbitration between NY Medical Health v. NYC Transit Authority, 2009 NY Slip Op. 51526U, 24 Misc 3d 1219A ( Civil Ct, Kings Co. 2009). Judge Sweeney first noted that the condition precedent to the obligation of an insurer to pay no fault benefits arose from the policy of insurance which contained the mandatory personal Injury protection (“PIP”) endorsement – that an eligible injured person or his assignee submit written proof of claim within 45 days after the date services are rendered (11 NYCRR 65.1, 65-2.4(c)). However, pursuant to set insurance law precedent, “an insurer cannot insist upon cooperation or adherence to the terms of its policy after it has repudiated liability on the claim ***by sending a letter denying liability. Id at 3 citing Rajchandra Corp. V. Title Guarantee Co., 163 AD2d 765, 769 (2d Dept. 1990). See, Auerbach v. Otsego Mutual Fire Ins. Co., 36 AD3d 840, 842 (2d Dept. 2007). Since the Transit Authority had unequivocally notified the assignor that it was denying all no -fault benefits, neither the assignor nor his assignee – the medical provider – were obligated to submit written proof of claim to the respondent. Id. At 4.

Nor does the opinion letter annexed to defendant’s papers from the Office of Counsel, State Insurance Department, support defendant’s position. The precise question posed before Counsel was whether an insurance company must continue to issue denials for claims for continued treatment which are submitted subsequent to the company’s issuance of a general denial for all-future benefits. Unlike the current situation, where plaintiff has not submitted any claims, the facts presented to the Office of Counsel revealed that the medical provider continued to submit claims for reimbursement after the general denial was issued. Therefore, Counsel’s opinion was predicated upon an insurer’s obligation under the regulations (11 NYCRR §65-3.8(c)) to either deny or pay a claim within 30 calendar days after proof of claim is received. His further comment that “the obligation of an applicant to submit timely claims to be eligible for reimbursement remains continuous, irrespective of whether an insurer has denied a claim” is merely dicta.

However, Allstate’s “ability to resolve the claims at issue if warranted” is not prejudiced. Plaintiff had the option of continuing to submit claims, despite Allstate’s general denial, and chose not to. Since plaintiff has failed to file its claim, no presumption of medical necessity attaches to the services rendered by plaintiff.The burden therefore has not shifted to defendant to demonstrate the lack of medical necessity. See, , e.g. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 17 Misc 3d 1135A( Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 2005 NY Slip. Op. 50662(U), 7 Misc 3d 1018(A) (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings [*3]Co. 2004). At trial, plaintiff must establish the medical necessity of the services rendered and negate the general denial issued by Allstate that pursuant to an IME, no further medical services were warranted,

As such, the court denies defendant’s motion to dismiss the case due to plaintiff’s failure to submit a claim and directs the parties to contact the court, within 20 days of receipt of this decision, to schedule a date to recommence the trial unless they can resolve the matter beforehand.

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Shenanigans

Written on January 27, 2010 by David M. Gottlieb

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The post title has nothing to do with the decision, I just like the word.

Style Acupuncture, P.C. v State-Wide Ins. Co., 2010 NY Slip Op 50089(U)(Civ Ct City NY, Kings County)

Defendant’s excuse for the delay in denying the claim is that there was a “pending fraud investigation”. There is no indication that any verification request was ever sent to plaintiff after defendant received the bills. Such a request would have served to toll the time to deny the claim. Moreover, the report of Special Investigations Unit [hereinafter "SIU"] Investigator, Charles Rorke, is unsworn and not in admissible form as required by CPLR § 3212. However, even if it were admissible, Mr. Rorke concluded that “there is no evidence that [the accident forming the basis of the claim] was caused or staged”.

Defendant correctly states that “a no fault insurer is not precluded from asserting a defense of fraud, despite the insurer’s untimely denial of the claim”. Central Gen. Hosp v. Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Matter of Progressive Northwestern Ins Co. V Van Dina, 282 Ad2d 269 [2d Dept 2001]. However, no such tolling provision applies with respect to provider fraud, which seemingly forms the basis for defendant’s denial. Fair Price Medical Supply Corp v. Travelers Indemnity Co., 10 NY3d 556, 860 NYS2d 471 [2008]. [*3]

Defendant urges that the Court find there is an issue of fact as to fraud and set the matter down for trial on that issue. The Court declines to do so. Even if there were admissible evidence of provider fraud, as set forth above, such evidence would not excuse defendant’s untimely denial of the within claims.

The Court finds that plaintiff has met its prima facie burden of proving mailing. Defendant is, however, unable to prove timely denial.

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Policy Endorsements

Written on January 23, 2010 by David M. Gottlieb

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Matter of Government Employees Ins. Co. v Brunner, 2010 NY Slip Op 00512 (App. Div., 2nd, 2010)

The Supreme Court properly concluded that the petitioner failed to meet its burden of proving that an insurance policy endorsement dated October 21, 2005, which purportedly reduced the limits applicable to the uninsured/underinsured motorist endorsement of the relevant policy to the sums of $25,000 per person and $50,000 per accident, was properly mailed to the policy holder prior to the date of the subject accident. The underwriter who testified at the hearing failed to offer “evidence of an office [procedure] geared to insure the likelihood that [the endorsements are] always properly addressed and mailed” (Federal Ins. Co. v Kimbrough, 116 AD2d 692, 692; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830; Matter of Transcontinental Ins. Co. v Gibbs, 34 AD3d 488; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; Lumbermens Mut. Cas. Co. v Gamble, 250 AD2d 540; Matter of Allstate Ins. Co. v Ramirez, 208 AD2d 828, 830; Sea Ins. Co. v Kopsky, 137 AD2d 804; Anzalone v State Farm Mut. Ins. Co., 92 AD2d 238; cf. Kaufmann v Leatherstocking Coop. Ins. Co., 52 AD3d 1010, 1012; Morales v Yaghoobian, 13 AD3d 424, 425; Matter of Metlife Auto & Home v Pennella, 10 AD3d 726).

Compare with Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129(A) (App. Term, 2nd, 2008):

Since an automobile insurance policy which contained the prior version of the Endorsement would have expired no later than in April 2003 (see Insurance Law § 3425 [8]), the automobile insurance policy applicable to the claims at issue in the instant case was required to contain the current Endorsement which sets forth the 45-day time limit for the submission of claims (Insurance Department Regulations [11 NYCRR] § 65-1.1 [b]; see S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists 2004], supra) and defendant need not prove that the instant automobile insurance policy contained such Endorsement.

and with Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 21 Misc 3d 49 (App. Term, 2nd, 2008):

A review of the record indicates that defendant demonstrated that the insurance policy in effect when the EUOs were sought contained an endorsement authorizing such verification (cf. Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists 2005]; Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

and with SZ Med. P.C. v State Farm Mut. Auto. Ins. Co., 9 Misc 3d 139(A) (App. Term, 1st, 2005):

Although plaintiffs’ claims were submitted after the April 5, 2002 effective date of the revised insurance regulations, the provisions of said regulations are not applicable to claims until new or renewed policies containing the revised endorsement are issued (see Elite Psychological Services, P.C. v Trumball Ins. Co., 2005 NY Slip Op 51427U [App Term 1st Dept]); Star Medical Services, P.C. v Eagle Insurance Company, 6 Misc 3d 56 [2004]). Consequently, absent a showing that the subject policy contained a no-fault endorsement permitting EUOs, defendant cannot rely on the revised regulations to argue that plaintiffs vitiated coverage by failing to comply with a condition precedent.

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MORE DECISIONS

Written on January 21, 2010 by David M. Gottlieb

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Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 2010 NY Slip Op 50065(U) (App. Term, 2nd, 2010)

Metropolitan Med. Supplies, LLC v GEICO Ins. Co.,2010 NY Slip Op 50066(U) (App. Term, 2nd, 2010)

Quality Rehab & P.T., P.C. v GEICO Ins. Co., 2010 NY Slip Op 50067(U) (App. Term, 2nd, 2010)

Amercure Acupuncture, P.C. v GEICO Ins. Co., 2010 NY Slip Op 50068(U) (App. Term, 2nd, 2010)

Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co., 2010 NY Slip Op 50070(U) (App. Term, 2nd, 2010)

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Chrios and MDs

Written on January 20, 2010 by David M. Gottlieb

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Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co.,2010 NY Slip Op 50053(U) (Dist Ct Nassau County, First Dist)

Expert testimony is required to establish what the generally accepted medical/professional practices are and how ordering the tests or treatment departed from generally accepted medical/professional standards. Dunn v. Khan, 62 AD3d 828 (2nd Dept. 2009); and Lyons v. McCauley, 252 AD2d 516 (2nd Dept. 1998).

Chiropractics is separate and distinct from the practice of medicine so that a physician’s standard is not controlling upon a chiropractor in the practice of his or her profession. Taormina v. Goodman, 83 AD2d 1018 (2nd Dept. 1978). In determining [*4]whether treatment performed or tests ordered by a chiropractor are medically necessary, the court must determine the generally accepted standard of care in the field of chiropractics and whether the providing the treatment or ordering of the tests was in accordance with those generally accepted chiropractic standards. 1B NY PJI3d 2:150, at 802 (2009).

To qualify as an expert, the witness must possess “…the requisite skill, training, education, knowledge or experienced from which it can be assumed that the information imparted or the opinion rendered is reliable (citations omitted).” Matott v. Ward, 48 NY2d 455, 460 (1979); and de Hernandez v. Lutheran Medical Center, 46 AD3d 517 (2nd Dept. 2007). When a doctor testifies outside his area of expertise, the party calling the doctor must lay a foundation establishing the doctor is familiar with the generally accepted practice in the area in question to lay a proper a foundation for the expert’s opinion. Shectman v. Wilson, -A.D.3d-, 2009 WL 4674047 (2nd Dept. 2009); and Geffner v. North Shore University Hosp., 57 AD3d 838 (2nd Dept. 2009).

State Farm had a neurologist perform the peer review and called a neurologist to testify the cervical and lumbar MRIs ordered by a chiropractor were not medically necessary. Even though the parties stipulated Dr. Seliger was an expert, his field of expertise is neurology not chiropractics. State Farm did not establish Dr. Weiland, the peer reviewer, or Dr. Seliger, the re-peer, were familiar with generally accepted chiropractic practices or the generally accepted reasons why a chiropractor would order a patient to have a cervical or lumbar MRI.^[FN2] Therefore, Dr. Weiland’s peer review report and Dr. Seliger’s testimony are insufficient to rebut the presumption of medical necessity that attaches to a timely filed no-fault claim.

Congrats to Ms. Erin Stamper on her her first published decision. Though it was mentioned in a comment, it’s worth mentioning here.

That aside, JT told you so, proving to some extent that you really don’t want your attorney to blow sunshine up your crack.

[last note: It looks like the Court's cite for Geffner is off by a number. It should be 57 AD3d 839.]

Experts, Medical Necessity, no fault law

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