Category Archives: Summary Judgment

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] ยง 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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New Decisions From the Appellate Term, 2nd

Written on November 12, 2009 by Dave Gottlieb
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Exclusive Med. Supply, Inc. v Mercury Ins. Group, 2009 NY Slip Op 52273(U) (App. Term, 2nd, 2009)

In support of defendant’s motion for summary judgment dismissing the complaint, defendant annexed an affirmed peer review report by a doctor as well as an affidavit executed by the chiropractor who performed the second peer review. Since the foregoing documents set forth a factual basis and medical rationale for the peer reviewers’ opinions that the medical equipment provided was not medically necessary, defendant established, prima facie, a lack of medical necessity for the equipment in question (see e.g. 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 [*2]Dists 2009]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). As plaintiff failed to submit any evidence to rebut defendant’s showing of a lack of medical necessity and as plaintiff’s objections to defendant’s papers lack merit, defendant’s motion should have been granted (see e.g. Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]; see also 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]; PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Gentle Care Acupuncture, P.C. v Raz Acupuncture, P.C., 2009 NY Slip Op 52274(U) (App. Term, 2nd, 2009)

“[W]here medical services are rendered by an independent contractor, the billing provider may not maintain an assigned first-party no-fault action, since it is not a provider’ within the [*2]meaning of the insurance regulations, and hence no-fault benefits are not assignable to it (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). Further, such defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, supra)” (M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]).

In the instant case, since the claim forms do not disclose the relationship between Raz Acupuncture, P.C. and the treating acupuncturist, the claim forms are not dispositive on the issue of whether the treating acupuncturist was an independent contractor or an employee of Raz Acupuncture, P.C. Moreover, the acupuncturist’s affidavit, relied upon by defendant, was insufficient to prove, prima facie, that the acupuncturist was an independent contractor (see Bhanti v Brookhaven Mem. Hosp. Med. Ctr., 260 AD2d 334 [1999]). As a result, the branch of defendant’s motion seeking summary judgment upon the third and fourth causes of action was properly denied, and the order, insofar as appealed from, is affirmed.


Bath Med. Supply, Inc. v Harco Natl. Ins. Co., 2009 NY Slip Op 52278(U) (App. Term, 2nd, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that it had timely denied plaintiff’s claim based upon the assignor’s eligibility for workers’ compensation benefits. The District Court dismissed the complaint and referred the matter to the Workers’ Compensation Board. This appeal by plaintiff ensued.

Contrary to plaintiff’s contention, the Workers’ Compensation Board has the authority to determine whether plaintiff’s assignor is entitled to Workers’ Compensation benefits (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 24 Misc 3d 75 [App Term, 9th & 10th Jud Dists 2009]). However, the District Court should not have dismissed the complaint and referred the [*2]matter to the Workers’ Compensation Board but, rather, should have held plaintiff’s motion in abeyance. Accordingly, the order is reversed, the complaint reinstated and plaintiff’s motion remitted to the District Court to be held in abeyance pending a prompt application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.

App Term 2nd, Generally Accepted Medical Pracitce, Mailing, Medical Necessity, Peer Reviews, Summary Judgment
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SUMMARY JUDGMENT (TIMING)

Written on September 2, 2008 by Dave Gottlieb
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Matt Lerner, over at New York Civil Law , posted about a case that is about to be argued in the Court of Appeals regarding what constitutes “good cause” where a motion is made outside the time limits set forth by CPLR R. 3212.

Here is his post, in part. But mostly in full:

Practitioners often grumble about the New York Court of Appeals’ holding in Brill v. City of New York — i.e., the outside time limit for a summary judgment motion is 120 days after the filing of the note of issue, unless good cause is shown for the delay. During the first Session of the Court’s new Term, the Court will revisit what constitutes “good cause” under CPLR 3212.

The Court will hear oral arguments in Crawford v. Liz Claiborne, Inc. during its September Term. In Crawford, the parties entered into a scheduling order in New York County. The outside deadline to file summary judgment motions was pursuant to the local rules. The local rules provide that movants have an outside deadline of 60 days after the filing of the note of issue, rather than the 120-day deadline.

The defendant unfortunately overlooked the local rules and, upon realizing the oversight, served and filed its summary judgment motion a few days after the 60-day deadline. The trial court considered the motion, even though the motion was beyond the 60-day deadline, and dismissed the complaint. The Appellate Division, First Department reversed the Decision and Order, holding that an oversight regarding the court rules did not constitute “good cause” under Brill and CPLR 3212. Justice Tom and Williams dissented.
Summary Judgment
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