3.1415926535897932384626433832795028841971693993751058209 7494459230781640628620899862803482534211706798214808651 3282306647093844609550582231725359408128481117450284102 7019385211055596446229489549303819644288109756659334461 2847564823378678316527120190914564856692346034861045432 6648213393607260249141273724587006606315588174881520920 9628292540917153643678925903600113305305488204665213841 4695194151160943305727036575959195309218611738193261179 3105118548074462379962749567351885752724891227938183011 9491298336733624406566430860213949463952247371907021798 6094370277053921717629317675238467481846766940513200056 8127145263560827785771342757789609173637178721468440901 …

A bunch came out today from the Appellate Term, 2nd, but they all referred to one.

Dilon Med. Supply Corp. v Travelers Ins. Co., 2009 NY Slip Op 50389(U) (App. Term, 2nd, 2009)

At the trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff did not call any witnesses. Rather, plaintiff orally moved for the admission into evidence of its notice to admit and defendant’s response thereto, contending that they, and the exhibits annexed to plaintiff’s prior motion for summary judgment and defendant’s papers in opposition thereto, were sufficient to establish plaintiff’s prima facie case. Defendant objected and cross-moved for a directed verdict dismissing the complaint. The Civil Court granted defendant’s cross motion for a directed verdict, holding that, without testimony from a witness to establish the admissibility of the documents upon which plaintiff sought to rely, plaintiff failed to establish a prima facie case. This appeal by plaintiff ensued. A judgment was subsequently entered dismissing the complaint.

At trial, “it remained plaintiff’s burden to proffer evidence in admissible form, i.e., by introducing into evidence the claim form[s] in question by, inter alia, calling a witness to lay a foundation for the admissibility of the claim form[s] as . . . business record[s], which plaintiff failed to do. Accordingly, in light of plaintiff’s failure to establish the admissibility of its claim form[s] as . . . business record[s], plaintiff did not establish a prima facie case and defendant was entitled to judgment dismissing the complaint” (Bajaj v General Assur. Co., 18 Misc 3d 25, 28-29 [App Term, 2d & 11th Jud Dists 2007] [citation omitted]; see also Art of Healing Medicine, [*2]P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]).

Compare this with Richard Morgan D.O., P.C. v GEICO Indem. Co., 2009 NY Slip Op 50332(U)(App. Term, 2d, 2009) and NYC East-West Acupuncture, P.c. v Maryland Cas. Co., 2008 NY Slip Op 51762(U) (App. Term, 2d).

I found this post over at No Fault Law – a defense attorney’s perspective. No, it’s not my blog.

The title of the post is: How to defeat a Lack of medical necessity motion based upon a peer review.

I’m posting parts of it, but I’d read the rest of it if I were you.

A.B. Med. Servs., PLLC v New York Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 50331(U)(App. Term, 2d, 2009)

A provider generally establishes its prima facie entitlement to summary judgment by [*2]proof of the submission of a statutory claim form, 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]). A review of the record indicates that the affidavit submitted by plaintiffs’ billing manager sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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, the record establishes plaintiffs’ prima facie entitlement to summary judgment.

In opposition to plaintiff’s motion for summary judgment, defendant asserted, inter alia, that the alleged injuries do not arise out of an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). In support of said defense, defendant submitted the affidavit of its litigation examiner, the police report, the affidavit of its investigator, and transcripts of statements made by the assignors and the insured, which demonstrated that defendant possessed a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. at 199).

Richard Morgan D.O., P.C. v GEICO Indem. Co., 2009 NY Slip Op 50332(U)(App. Term, 2d, 2009)

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment or, in the alternative, for an order, pursuant to CPLR 3212 (g), limiting issues of fact for trial. Plaintiff’s attorney and its billing manager each claimed that plaintiff’s bills were denied based upon independent medical examinations (IMEs), that defendant failed to produce the IME reports upon plaintiff’s request and that, therefore, defendant should be precluded from asserting its defense of lack of medical necessity. In opposition, defendant argued that it timely denied plaintiff’s claims on the ground that the services rendered [*2]were not medically necessary and attached copies of the IME reports to its opposition papers, as well as affidavits executed by the chiropractor and the acupuncturist who performed the IMEs at issue. Defendant also requested an order limiting issues for trial pursuant to CPLR 3212 (g) in the event plaintiff’s motion for summary judgment was denied. The District Court denied the branch of plaintiff’s motion seeking summary judgment and implicitly denied the branch of plaintiff’s motion seeking an order pursuant to CPLR 3212 (g), as well as defendant’s request for such an order. The instant appeal by plaintiff ensued.

Plaintiff’s sole argument on appeal with respect to the denial of that branch of its motion seeking judgment in its favor is that defendant should be precluded from asserting its defense of lack of medical necessity because defendant did not provide copies of the IME reports in response to the request for said reports contained in plaintiff’s complaint. However, as the motion court held, “a pleading can only contain statements’ and cannot contain a demand or request” (see CPLR 3013, 3014). Accordingly, plaintiff has not demonstrated that it ever made a proper demand for the IME reports. In any event, the Insurance Regulations provide no sanction for an insurer’s failure to provide an IME report upon the written request for one by a provider (see Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 18 [App Term, 2d & 11th Jud Dists 2008]). Consequently, the District Court properly denied plaintiff’s motion for summary judgment.

However, the alternative relief sought in plaintiff’s motion, which relief plaintiff seeks again on this appeal, is appropriate in this case (see CPLR 3212 [g]; Tele-Pac, Inc. v Grainger, 168 AD2d 11 [1991]; E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599 [1984]; Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:35). As defendant has not challenged the admissibility of plaintiff’s claim forms as business records, and the parties agree that the only issue for trial is whether the services billed for were medically necessary, we find, pursuant to CPLR 3212 (g), that plaintiff submitted its claim forms to defendant and that defendant timely denied the claims at issue based upon independent medical examinations performed by Dominic Chiappetta and Richard Sollazzo.

We decline defendant’s request that we search the record and award it summary judgment dismissing the complaint (see e.g. New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]).

State Farm Mut. Auto. Ins. Co. v Cyriaque, 2009 NY Slip Op 50334(U)(App. Term, 2d, 2009)

State Farm Ins. Co. v German, 2009 NY Slip Op 50335(U)(App. Term, 2d, 2009)

We note that in view of our finding that defendant failed to establish a reasonable excuse for the default, it is unnecessary for us to address the issue of whether a meritorious defense was demonstrated.

Velen Med. Supply, Inc. v Country-Wide Ins. Co., 2009 NY Slip Op 50343(U)(App. Term, 2d, 2009)

On appeal, defendant argues that the affidavit by plaintiff’s billing manager, submitted in support of plaintiff’s motion for summary judgment, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s billing manager was insufficient to demonstrate that she possessed personal knowledge of plaintiff’s [*2]practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 15 Misc 3d 144[A], 2007 NY Slip Op 51161[U] [App Term, 2d & 11th Jud Dists 2007], affd 55 AD3d 644 [2008]; Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists 2007]; 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 judgment is reversed, so much of the order as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied. We note that no issue is raised with respect to the denial of defendant’s cross motion for summary judgment.

Friendly Physician, P.C. v Country-Wide Ins. Co., 2009 NY Slip Op 50348(U)(App. Term, 2d, 2009)

The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).