Category Archives: Dan Med

Fee Schedule Defense Precluded if Not in Timely Denial (App. Term, 2nd)

Written on November 18, 2009 by Dave Gottlieb
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Great Wall Acupuncture, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52308(U) (App. Term, 2nd, 2009)

In support of a motion for summary judgment in this action by a provider to recover assigned first-party no-fault benefits, plaintiff showed that it had submitted a bill to defendant seeking to recover at a rate of $90 for each session of acupuncture rendered to plaintiff’s assignors by plaintiff’s licensed acupuncturist. Defendant paid plaintiff for the sessions at the reduced rate of $29.30 per session, which, defendant claimed, was the amount paid to licensed chiropractors for similar services. Plaintiff sought full reimbursement, i.e., the $60.70 balance allegedly due for each session, contending that the amounts which it had charged were not unreasonable and were within the range of the prevailing fees in the geographic area in which plaintiff operated, that is, between $85 and $100 per session. The court denied plaintiff’s motion [*2]for summary judgment, searched the record and granted defendant summary judgment dismissing the complaint. This appeal by plaintiff ensued. A judgment dismissing the complaint was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Contrary to defendant’s assertion, the affidavit submitted by plaintiff’s billing manager was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (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]).

Defendant failed to establish that it timely denied the unpaid portion of the claims set forth on the claim form seeking the sum of $1,080 for assignor Clarence Beckford, which form defendant received on December 23, 2004 (see Insurance Department Regulations [11 NYCRR] § 65-3.8). As a result, its defense that plaintiff’s $1,080 claim exceeded the amount permitted by the workers’ compensation fee schedule is precluded (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc 3d 1 [App Term, 2d & 11th Jud Dists 2008]), and plaintiff was entitled to summary judgment upon the unpaid portion of said $1,080 claim.

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant timely paid a portion of each of said claims and that defendant timely denied the $60.70 per session balance allegedly due on them. For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its acupuncturist (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 23 Misc 3d 140[A], 2009 NY Slip Op 51017[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Therefore, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing plaintiff’s complaint with respect to said claims.

Click here for No Fault Defender’s take on the case.

App Term 2nd, Dan Med, Fee Schedule, Geico, Summary Judgment
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The good stuff

Written on November 5, 2009 by Dave Gottlieb
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New decisions.

Radiology Today, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52208(U) (App. Term, 2nd, 2009)

In support of its motion, defendant submitted the affidavit of a manager employed by the independent medical review service retained by defendant to schedule and conduct IMEs, which affidavit sufficiently set forth the standard office practice and procedure for the generation and mailing of IME notices designed to ensure that said notices were properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). The affirmations and affidavits of the medical professionals who were to perform the IMEs established that plaintiff’s assignor failed to [*2]appear for said IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Tuncel v Progressive Cas. Ins. Co., 21 Misc 3d 143[A], 2008 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, defendant’s unopposed motion for summary judgment dismissing the complaint should have been granted.

Richmond Radiology, P.C. v GEICO Ins. Co., 2009 NY Slip Op 52210(U) (App. Term., 2nd, 2009)

Contrary to plaintiff’s contention on appeal, the doctor performing the peer review did not conclude that he had insufficient information upon which to base a conclusion. Instead, the affirmed report raised a triable issue of fact because “the report clearly indicates that the pertinent [treating] physician’s reports and other documentation had been requested and provided for the purpose of conducting a peer review, and the conclusion of lack of medical necessity is based on the peer reviewer’s opinion, in effect, that there was no substantiation in the reports and documents reviewed of medical necessity for the [services] provided” (Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists 2005]). Accordingly, plaintiff’s motion for summary judgment was properly denied.

New Wave Oriental Acupuncture, P.C. v Government Employees Ins. Co., 2009 NY Slip Op 52211(U) (App. Term, 2nd, 2009)

Contrary to plaintiff’s contention, the affidavit submitted by defendant sufficiently established that the denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [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]). For the reasons stated in Great Wall Acupuncture v GEICO Gen. Ins. Co. (16 Misc 3d 23 [App Term, 2d & 11th Jud Dists 2007]), it was proper for [*2]defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive (see AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant raised a triable issue of fact and plaintiff’s motion for summary judgment should have been denied.

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 2009 NY Slip Op 52222(U) (App. Term., 2nd, 2009)

Contrary to defendant’s contention, although plaintiff’s claim was submitted more than 45 days after the services at issue were rendered, defendant waived its reliance on the 45-day rule (Insurance Department Regulations [11 NYCRR] § 65-1.1) as a basis to deny the claim because defendant had failed to communicate to plaintiff, as required by the No-Fault Regulations, that late submission of the proof of claim will be excused where the applicant can provide a reasonable justification for the late submission (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]; SZ Med. P.C. v Country-Wide Ins. Co., 12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]). Further, defendant failed to demonstrate that discovery was needed in [*2]order to show the existence of a triable issue of fact (see CPLR 3212 [f]).

Tags: , 45 day rule, Dan Med, Denials, Fee Schedule, Geico, IME no show, Medical Necessity
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Strange Brew

Written on October 27, 2009 by Dave Gottlieb
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Boro Med. Supplies, Inc. v Country Wide Ins. Co., 2008 NY Slip Op 52698(U) (App. Term, 2nd, 2009)

Motion by appellant for leave to appeal to the Appellate Division from the order of this court dated February 8, 2008 denied as academic.

On the court’s own motion, reargument of the order and decision of this court in the above-entitled action, dated February 8, 2008, is granted and, upon reargument, the order and decision of this court dated February 8, 2008 are vacated and the following is substituted as the decision of the court:

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated October 17, 2006. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion, asserting,
inter alia, that the affidavits submitted by plaintiff were insufficient to support plaintiff’s motion for summary judgment and that plaintiff failed to submit a timely claim for reimbursement of benefits. The court denied plaintiff’s motion for summary judgment, holding that defendant raised triable issues of fact as to the denial of the claim and as to whether plaintiff timely mailed the bills to defendant. This appeal by plaintiff ensued.

Plaintiff established its prima facie entitlement to summary judgment by proof that it [*2]submitted the claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; see also Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]). The burden, therefore, shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

The affidavit’ of defendant’s no-fault supervisor, submitted by defendant to establish that defendant timely denied plaintiff’s claim, was not signed. Thus, the affidavit’ is of no probative value and defendant failed to establish that it timely denied plaintiff’s claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]). As a result, defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its proffered defense that the claim was submitted more than 45 days after the date of service.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

And here is the decision it replaces.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, two affidavits by a corporate officer of plaintiff and various documents annexed thereto. The affidavits executed by the corporate officer stated in a conclusory manner that the documents annexed to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that the affidavits by plaintiff’s officer failed to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised a question of fact as to the timeliness of plaintiff’s mailing of the claim. Plaintiff appeals from the denial of its motion for summary judgment.

Since the affidavits submitted by plaintiff’s officer were insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment ( see Dan Med., P.C. v. New York Cent. Mut. Fire Ins. Co., 14 Misc.3d 44 [App Term, 2d & 11th Jud Dists 2006] ). Consequently, the order denying plaintiff’s motion for summary judgment is affirmed, albeit on other grounds.

There is no reference to Dan Med in the new decision.  And right after the Appellate Division grants leave in Carothers v. Geico.  Weird.

Mani Med., P.C. v Eveready Ins. Co., 2008 NY Slip Op 52697(U) (App. Term, 2nd, 2009)

On the court’s own motion, reargument of the order and decision of this court, dated January 15, 2008, in the above entitled action, is granted and, upon reargument, the order and decision of this court dated January 15, 2008 are vacated and the following is substituted as the decision of the court:

***

Defendant argues that plaintiff failed to make a prima facie showing because plaintiff did not demonstrate that it possessed a valid assignment. Even assuming that a prima facie case requires proof of a valid assignment, where, as here, the claim forms stated that the assignor’s signature was on file,’ such a burden is satisfied, inasmuch as defendant did not timely take action to verify the existence of a valid assignment (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]). Since defendant raises no other issue with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

While plaintiff sought summary judgment, inter alia, upon its claim form dated December 23, 2002 in the sum of $746.01, the record is devoid of any proof of a denial of claim form corresponding to plaintiff’s $746.01 claim form. (We note that the supervisor of defendant’s no-fault department submitted an affidavit in opposition in which she stated that defendant received separate claims seeking the sums of $82.89 and $663.23.’ The sum of the foregoing two claims does not equal $746.01. However, two of the NF-10 denial of claim forms annexed to defendant’s opposing papers indicated that they denied separate claims seeking the sums of $82.89 and $663.12, the sum of which does equal $746.01. Defendant makes no attempt to explain this discrepancy.) As a result, plaintiff was entitled to summary judgment upon its claim for $746.01.

Further, with respect to plaintiff’s remaining claims, the court below held that the peer review reports submitted by defendant in opposition to plaintiff’s motion were inadmissible inasmuch as they failed to comply with CPLR 2106. Where, as here, the signatures appear to be affixed by stamp or generated by a computer, plaintiff’s assertion, in its reply papers, that such peer review reports did not constitute evidence in admissible form due to a failure to comply with CPLR 2106 would ordinarily raise an issue of fact that cannot be resolved on a motion for summary judgment (see Seoulbank, NY Agency v D & J Export & Import Corp., 270 AD2d 193 [2000]; Dyckman v Barrett, 187 AD2d 553 [1992]; see also James v Albank, 307 AD2d 1024 [2003]). However, inasmuch as defendant’s counsel has submitted papers to this court in opposition to plaintiff’s motion for leave to appeal to the Appellate Division from the original order of this court dated January 15, 2008, (which motion has been rendered academic by the issuance of this decision and order), conceding that [t]he reports in question contain stamped signatures,’ and there is nothing in the record to indicate that the stamped signatures were placed on the reports by the doctor who performed the peer reviews or at his direction, it is our view that defendant failed to raise a triable issue of fact with respect to the claim at issue (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]).

Tags: , , 45 day rule, Dan Med, Denials, Medical Necessity, Prima Facie, no fault law
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Catching Up

Written on October 24, 2009 by Dave Gottlieb
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I’ve been under the weather for the past week.  According to my wife, I wasn’t sick enough.  According to some people at the office, I had a bad case of the whine flu.  According to me, I felt like I was going to vomit and pass out.

So I didn’t post.  I barely looked at the cases that were coming out.  It’s time to catch up.

No-Fault Defender posted on two important issues.  First, the Appellate Division granted leave to appeal the Appellate Term’s decision in Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 24 Misc 3d 19 (App. Term, 2nd 2009).  The decision dates are different, but it’s the same case.  I took a trip over to the Appellate Division to confirm.  The Pine Hollow decision was stapled to the order granting leave1.  Some might find that interesting.  You can read No-Fault Defender’s post HERE.  He believes, and I agree, that this may be the end of Dan Med–a decision that never made sense.  The other post asked the question, Must a carrier demonstrate that a deponent willfully failed to attend EUO’s in order to substantiate this defense?  It begins with the recent Progressive Northeastern Ins. Co. v Arguelles Med. P.C., decision where the Supreme Court found that defendant failed to prove that the EUO was reasonably required, among other things.  He concludes that “In order to oppose an EUO no-show defense, the burden is on the Plaintiff to demonstrate a lack of reasonableness.”  While he poo poos the willful and avowed standard, I believe that it remains appropriate, even for condition precedent issues.  And there is always the Insurance Department opinion letter.

My favorite part of his post is where he directs his readers to my post–the one that only has the case cite and link–for my insight.  Thanks.  This is not the place to go for insight; however, if what you are looking for is stick figure drawings of people sticking their ass in other people’s faces on the subway, this is your place.

In other news2:

Med-Tech Prods., Inc. v Geico Ins. Co., 2009 NY Slip Op 52111(U) (App. Term, 2nd 2009)

Contrary to defendant’s contention, the affidavits of plaintiff’s president, who was also plaintiff’s custodian of records, were sufficient to establish that the documents annexed to plaintiff’s motion papers constituted evidence in admissible form pursuant to CPLR 4518 (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 defendant concedes, any deficiency in plaintiff’s moving papers regarding proof of mailing of the claim forms was cured by defendant’s claim denial forms acknowledging receipt of the claim forms (see Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, plaintiff made a prima facie showing of its entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

In opposition to plaintiff’s motion, defendant established that it had timely denied the claims in question based upon affirmed peer review reports setting forth a factual basis and medical rationale for the doctor’s opinion that the supplies provided to plaintiff’s assignors were [*2]not medically necessary (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; Quality Health Prods., P.C. v Progressive Ins. Co., 20 Misc 3d 143[A], 2008 NY Slip Op 51757[U] [App Term, 2d & 11th Jud Dists 2008]). As a result, defendant proffered sufficient evidence in admissible form to demonstrate the existence of a triable issue of fact as to medical necessity (see Velen Med. Supply, Inc. v GEICO Ins. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff’s contention that the peer review reports did not constitute evidence in admissible form was waived since said argument is raised for the first time on appeal (see Dowling v Mosey, 32 AD3d 1190 [2006]; Velen Med. Supply, Inc., 23 Misc 3d 132[A], 2009 NY Slip Op 50735[U]; Alur Med. Supply, Inc. v Geico Ins. Co., 20 Misc 3d 145[A], 2008 NY Slip Op 51867[U] [App Term, 2d & 11th Jud Dists 2008]).

Right Aid Diagnostic Medicine, P.C. v Geico Ins. Co., 2009 NY Slip Op 52122(U) (App. Term, 2nd 2009)

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. We disagree because the affidavit was sufficient to comply with CPLR 4518 (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, the burden shifted to defendant to demonstrate the existence of a triable issue of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]).

Fatiha Ibrahim, D.C. v MVAIC, 2009 NY Slip Op 52125(U) (App. Term, 2nd, 2009)

The Civil Court denied MVAIC’s motion, holding that “MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York.”

Where, as here, plaintiff and his assignor are aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, is required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). However, under the facts of this case, MVAIC’s motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC’s claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff’s failure to exhaust his remedies against the vehicle’s owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.

Nationwide Mut. Fire Ins. Co. v Aquiles, 2009 NY Slip Op 32432(U) (Sup Ct, Nassau County, 2009)

In news unrelated to no-fault, everyone should take a moment to check out John M. Hochfelder’s blog, New York Injury Cases Blog.  His posts have pictures.  PICTURES!  And the man can write.  If there are a thousand personal injury blogs, only a handful are worth reading.  His is one of them.

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1.  I also read the briefs.  One of them was full of ad hominemA arguments and hyperbole.

2. Some believe that the Appellate Term invented the Dan Med rule to cut down on no-fault litigation, or at the very least, make the cases speed along in the Courts.  If so, the decision has had a contrary effect.  Not only has it clogged the Courts, it caused countless appeals.  Good Stuff.

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A.  That’s right, a footnote to the footnote.  I just did that.  If you are interested, Logic for Lawyers, comes highly recommended.  It isn’t cheap, which is why I haven’t read it yet, but based on the recommendation (and the author), I think it’s worth picking up.

Tags: , , , , Coverage, Dan Med, Declaratory Judgment, EUO, Fraud, Geico, Legal writing, no fault law, progressive
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Some New Decisions

Written on October 15, 2009 by Dave Gottlieb
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A.B. Med. Servs., PLLC v American Tr. Ins. Co., 2009 NY Slip Op 52067(U) (App. Term, 2nd 2009)

Contrary to plaintiffs’ contention, defendant established both that the EUO notices were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]) and that the assignor failed to appear (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, in light of the foregoing and the fact that plaintiffs’ further [*2]contentions that the EUO notices were defective and that an EUO was not necessary lack merit, defendant’s cross motion for summary judgment was properly granted (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]).

Even were we to find otherwise, plaintiffs’ motion for summary judgment was properly denied because plaintiffs failed to make a prima facie showing of their entitlement to summary judgment since the affidavit submitted by plaintiffs’ billing manager failed to establish that the documents annexed to plaintiffs’ moving papers were admissible pursuant to CPLR 4518 (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]).

Careplus Med. Supply, Inc. v Allstate Ins. Co.,  2009 NY Slip Op 52068(U) (App. Term, 2nd 2009)

Plaintiff failed to make a prima facie showing of its entitlement to summary judgment since the affidavit submitted by plaintiff’s president and medical biller failed to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Fortune Med., P.C. v Allstate Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]). Consequently, plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issue.

If anyone can find a case that supports any of these propositions, they get a cookie:

  • If a summary judgment motion is made before the completion of discovery, it is premature as a matter of law.  Can this be distinguished from a pre-answer motion to dismiss?
  • A motion without written opposition must be granted as a matter of law, regardless of the sufficiency of the moving papers.  Double cookies for anyone who can find an Appellate Term case that says as much.
  • If a motion is granted without written opposition, but an attorney appears on the motion, it is not on default because someone appeared.  And, as a result, the “defaulting” party cannot make a motion to vacate.

If you just read this and are confused, you should be.  If you aren’t, then you know what I’m getting at.

Dan Med, EUO, Prima Facie, no fault law
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NEW DECISIONS

Written on January 14, 2009 by Dave Gottlieb
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Complete Orthopedic Supplies, Inc. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 29014 (App. Term, 2nd)

The Civil Court held that defendant failed to establish that its denial of claim forms were timely mailed because the notary public’s jurat, on the affidavits of mailing executed by defendant’s claims support services supervisor and the president of the courier service utilized by defendant, did not indicate the year in which the affidavits were signed. However, this technical [*2]defect is of the type which a court should disregard since it does not prejudice a substantial right of a party, particularly, where as here, plaintiff raised no objection thereto (see CPLR 2001; Matter of Goffredo v City of New York, 33 AD3d 346 [2006]; Matter of Liberty Mut. Ins. Co. v Bohl, 262 AD2d 645 [1999]; Supreme Automotive Mfg. Corp. v Continental Cas. Co., 97 AD2d 700 [1983]). Accordingly, the affidavits submitted by defendant were sufficient to establish that its denial of claim forms, which denied plaintiff’s claims on the ground of lack of medical necessity, were timely mailed in accordance with defendant’s standard office practice and procedure designed to ensure that items are properly addressed and mailed (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]).

Long Is. Multi-Medicine Group, P.c. v Travelers Ins. Co., 2009 NY Slip Op 50030(U) (App. Term, 2nd)

The affidavit of defendant’s claims representative submitted in opposition to plaintiff’s motion, and the denial of claim forms annexed thereto, demonstrate that defendant denied a number of plaintiff’s claims on the ground that they were not timely submitted (see generally Insurance Department Regulations [11 NYCRR] § 65.12). However, since none of the denial of claim forms correspond to the claim forms upon which plaintiff seeks summary judgment, defendant failed to establish that it timely denied the subject claims. As a result, defendant failed to raise a triable issue of fact with respect to the claims at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, the judgment is affirmed, albeit on other grounds.

M.N.M. Med. Health Care, P.C. v MVAIC, 2009 NY Slip Op 50041(U) (App. Term, 2nd)

“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a condition precedent to the right to apply for payment from [MVAIC]” (A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U] [App Term, 2d & 11th Jud Dists 2006] [citations and internal quotation marks omitted]; see Insurance Law § 5208 [a]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a “covered person” who is entitled to recover no-fault benefits from MVAIC (see Insurance Law § 5221 [b] [2]; Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]; A.B. Med. Servs. PLLC, 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). [*2]

MVAIC’s submissions in support of its motion for summary judgment made a prima facie showing that plaintiff’s assignor failed to timely file a notice of claim (see Insurance Law § 5208 [a]). By defaulting on the motion, plaintiff did not demonstrate that its assignor timely filed a notice of claim or sought leave to file a late notice of claim (see Insurance Law § 5208 [b], [c]). As a result, the order denying MVAIC’s unopposed motion for summary judgment dismissing the complaint is reversed and defendant’s motion is granted (see Bell Air Med. Supply, LLC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U]; A.B. Med. Servs. PLLC, 10 Misc 3d 145[A], 2006 NY Slip Op 50139[U]; Ocean Diagnostic Imaging, 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U]).

All Mental Care Medicine, P.C. v State Farm Mut. Ins. Co., 2009 NY Slip Op 50042(U) (App. Term, 2nd)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff offered a notice to admit and an affirmation made by defendant’s attorney in order to prove its prima facie case at trial. Plaintiff then rested without calling any witnesses. The court found that plaintiff, having failed to produce a witness, failed to make its prima facie case, and dismissed the complaint. For the reasons set forth in Bajaj v General Assur. (18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]), we affirm the judgment.

Uptodate Med. Serv., P.C. v State Farm Mut. Auto. Ins. Co., 2009 NY Slip Op 50046(U) (App. Term, 2nd)

Defendant sought leave to interpose the affirmative defenses of res judicata and collateral estoppel because there was a prior arbitration proceeding between the parties in which plaintiff had sought to recover assigned first-party no-fault benefits for services rendered from August 2003 through January 14, 2004, in which proceeding the arbitrator had determined that plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 322 [2005]). Inasmuch as plaintiff failed to demonstrate prejudice or surprise as a result of the proposed amendment to defendant’s answer (see McCaskey, Davies & Assocs. v New York City Health & Hosps. Corp., 59 NY2d 755 [1983]), and the proposed affirmative defense was neither devoid of merit nor palpably insufficient as a matter of law (see Ingrami, 45 AD3d at 808; Hill, 42 AD3d at 433), defendant should have been granted leave to amend its answer.

Under the doctrine of collateral estoppel, a party is precluded from relitigating an issue which has been previously decided against it in a prior proceeding where it had a full and fair opportunity to litigate the issue (see D’Arata v New York Cent. Mut. Fire Ins. Co., 76 NY2d 659 [1990]). “The two elements that must be satisfied to invoke the doctrine of estoppel are that (1) the identical issue was decided in the prior action and is decisive in the present action, and (2) the party to be precluded from relitigating the issue had a full and fair opportunity to contest the prior issue (see Kaufman v Lilly Co. [65 NY2d 449, 455 (1985)])” (Luscher v Arrua, 21 AD3d 1005, 1007 [2005]). “The burden is on the party attempting to defeat the application of collateral estoppel to establish the absence of a full and fair opportunity to litigate” (D’Arata, 76 NY2d at 664; see also Kaufman, 65 NY2d at 456).

Collateral estoppel effect can, under appropriate circumstances, be given to arbitration awards (see Matter of American Ins. Co. [Messinger Aetna Cas. & Sur. Co.], 43 NY2d 184 [1977]). Where a plaintiff has freely elected to proceed to arbitration with the assistance of counsel despite the availability of an alternate judicial forum and has had the opportunity to employ procedures substantially similar to those utilized in a court of law, it may be found that the plaintiff has had a full and fair opportunity to litigate the issue determined in the arbitration proceeding (Clemens v Apple, 65 NY2d 746 [1985]).

In the instant matter, defendant established that the issue of whether plaintiff was ineligible to receive reimbursement of no-fault benefits because it was a fraudulently incorporated professional service corporation (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d at 322) was identical to the issue previously decided by the arbitrator. In opposition to defendant’s cross motion, plaintiff failed to address the branch of the cross motion which sought summary judgment dismissing the complaint on the ground of collateral estoppel. Therefore, plaintiff failed to establish that it did not receive a full and fair opportunity to litigate in the arbitration proceeding. Thus, the branch of defendant’s cross motion seeking summary judgment should have been granted.

Vista Surgical Supplies, Inc. v State Farm Mut. Ins. Co., 2009 NY Slip Op 50047(U) (App. Term, 2nd)

An admission that defendant received plaintiff’s claim form is not a concession of the facts set forth in said claim form (Bajaj v General Assur. Co., 18 Misc 3d 25, 28 [App Term, 2d & 11th Jud Dists 2007]; 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]). While defendant acknowledged that it received plaintiff’s claim form and that a true copy was annexed to plaintiff’s notice to admit, it remained plaintiff’s burden to lay a sufficient foundation to establish that the claim form is admissible pursuant to the business records exception to the hearsay rule to prove the truth of the matters asserted therein (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008], affg 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff failed to proffer such [*2]proof, the court properly held that plaintiff failed to make a prima facie showing (see id.; Dan Med. P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the judgment is affirmed (see Parochial Bus Sys. v Board of Educ. of City of N.Y., 60 NY2d 539 [1983]).

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2009 NY Slip Op 50048(U) (App. Term, 2nd)

While plaintiff produced a witness to testify regarding the claim forms plaintiff sought to have admitted into evidence, because said witness did not testify at all as to the generation of such claim forms, they were not admissible as business records (see CPLR 4518). Accordingly, plaintiff failed to establish a prima facie case (see Bajaj v General Assur., 18 Misc 3d 25 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the judgment is affirmed.

Collateral Estopptel, Dan Med, Notice to Admit
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