Liberty Med. Group, P.C. v New York Cent. Mut. Fire Ins. Co., 2009 NY Slip Op 51486(U) (App. Term, 1st, 2009)

Davydov v Progressive Ins. Co., 2009 NY Slip Op 29299 (App. Term, 2nd, 2009)

Defendant’s contention that plaintiff lacks standing since the assignment of the no-fault benefits executed by plaintiff’s assignor was in favor of Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS is without merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. As a result, defendant is now precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; P.L.P. Acupuncture, P.C. v Travelers Indem. Co., 19 Misc 3d 126[A], 2008 NY Slip Op 50484[U] [App Term, 1st Dept 2008]).

A provider establishes a prima facie entitlement to judgment as a matter of law by submitting proof that the prescribed statutory billing forms were mailed and received, and that [*2]payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the instant case, Dr. Davydov’s testimony and the exhibits admitted into evidence were sufficient to satisfy plaintiff’s burden. Contrary to defendant’s contention, the elements of a prima facie case to recover assigned first-party no-fault benefits do not differ based upon the nature of the services provided by the plaintiff provider (see Globe Surgical Supply v GEICO Ins. Co., 59 AD3d 129 [2008]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]; Mary Immaculate Hosp., 5 AD3d 742).

Defendant contends that the trial court improperly curtailed defendant’s cross-examination and direct examination of Dr. Davydov. Defense counsel attempted to question Dr. Davydov regarding the medical necessity of the services rendered and whether the amount charged exceeded the amount set forth in the fee schedule. Since the parties did not stipulate to the timeliness of the denials, it was defendant’s burden to establish that it timely denied plaintiff’s claims so as to demonstrate that defendant’s proffered defenses were not precluded. Inasmuch as defendant called no witnesses and presented no evidence to show that its denials were timely mailed, defendant failed to establish that said defenses were not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 2d 33 [App Term, 2d & 11th Jud Dists 2007]). Consequently, the court properly curtailed examination of the witness with respect thereto.

This decision is discussed in two blogs: It’s No-Fault of NY and No Fault Law – A Defense Attorney’s Perspective.

Alur Med. Supply, Inc. v Eveready Ins. Co., 2009 NY Slip Op 51492(U) (App. Term, 2nd, 2009)

The record demonstrates that defendant timely mailed requests for verification and follow-up requests for verification (see Insurance Department Regulations [11 NYCRR] §§ 65-3.5 [b]; 65-3.6 [b]). Since plaintiff did not serve responses to the verification requests prior to the commencement of the action, defendant’s cross motion to dismiss the action as premature should have been granted, as defendant’s time to pay or deny the claim had not elapsed (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a]; Central Suffolk Hosp. v New York [*2]Cent. Mut. Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]).

563 Grand Med., P.C. v Nationwide Ins. Co., 2009 NY Slip Op 51493(U) (App. Term, 2nd, 2009)

The papers submitted by petitioner to the Civil Court were insufficient on their face to warrant the granting of any relief (see Avanessov v State-Wide Ins. Co., 21 Misc
3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]; SP Med., P.C. v Country-Wide Ins. Co., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]). The only document submitted by petitioner in support of the petition was a document that was denominated an “Affirmation in Support,” which was not affirmed “to be true under the penalties of perjury” (CPLR 2106). Indeed, the attorney who purportedly signed the document merely indicated that he “states as follows,” which is insufficient under the law (cf. Puntino v Chin, 288 AD2d 202 [2001]; Jones v Schmitt, 7 Misc 3d 47 [App Term, 2d & 11th Jud Dists 2005]; see also A.B. Med. Servs. PLLC v Prudential Prop. [*2]& Cas. Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50504 [U] [App Term, 2d & 11th Jud Dists 2006]). Consequently, the document is insufficient as an affirmation (Avanessov, 21 Misc 3d 132[A], 2008 NY Slip Op 52131[U]; SP Med., P.C., 20 Misc 3d 126[A], 2008 NY Slip Op 51230[U]). In view of the foregoing, the order is affirmed, albeit on other grounds.

AKS Med., P.C. v Progressive Ins. Co., 2009 NY Slip Op 51494(U) (App. Term, 2nd, 2009)

Pan Chiropractic, P.C. v Mercury Ins. Co., 2009 NY Slip Op 51495(U) (App. Term, 2nd, 2009)

Crossbay Acupuncture, P.C. v Nationwide Mut. Ins. Co., 2009 NY Slip Op 51496(U) (App. Term, 2nd, 2009)

Note that the Court found that plaintiff made out its prima facie case here. Plaintiff won, not because it was unopposed, but because it made out its prima facie case. Saunders v 551 Galaxy Realty Corp., 2009 NY Slip Op 05763 (App. Div., 2nd, 2009).

Proscan Imaging, P.C. v Lumbermens Mut. Cas. Co., 2009 NY Slip Op 51500(U) (App. Term, 2nd, 2009)

At the commencement of the trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated to plaintiff’s prima facie case. Thereafter, defendant’s attorney, in effect, requested an adjournment, stating that he had subpoenaed a witness, who had not appeared. The court stated that defendant had received two prior adjournments, that defendant had had more than a month to subpoena the witness and that it had not secured the so-ordered subpoena until the day before the trial. The court declined to grant any further adjournments, and ordered that judgment be entered in plaintiff’s favor. Defendant appeals from this decision. A judgment was subsequently entered, from which we deem the appeal (see CPLR 5520 [c]).

It is well settled that an application for an adjournment is addressed to the sound discretion of the trial court (see Nieves v Tomonska, 306 AD2d 332 [2003]; see also Samuel v F.E.G.S. Russian Ctr., 11 Misc 3d 130[A], 2006 NY Slip Op 50308[U] [App Term, 2d & 11th Jud Dists 2006]), and the court’s determination will not be disturbed absent an improvident [*2]exercise of that discretion (see Wolosin v Campo, 256 AD2d 332 [1998]; Klein v Klein, 6 Misc 3d 132[A], 2005 NY Slip Op 50106[U] [App Term, 2d & 11th Jud Dists 2005]). We find that the Civil Court did not improvidently exercise its discretion in declining to grant defendant an adjournment. Accordingly, the judgment is affirmed.

Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 2009 NY Slip Op 51502(U) (App. Term, 2nd, 2009)

The Insurance Department, Office of the General Counsel, recently issued an opinion letter regarding examinations under oath of assignees.

The short version:

Question:

May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?

Answer:

No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath.

Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?

Corona Comprehensive Med. Care, P.C. v Global Liberty Ins. Co. of N.Y., 2009 NY Slip Op 51432(U) (Civ Ct City NY, Queens County)

Media Neurology, P.C. v Liberty Mut. Ins. Co., 2009 NY Slip Op 51424(U) (Dist Ct Nassau County, Third Dist)

Justice Scalia and Brian Garner were in Texas last week to at the Texas Bar Association’s annual meeting. The topic: legal writing. Long critical of most legal writing, Scalia spoke about some things he finds particularly irksome.¹

Never underestimate the power of a short sentence.

Treasure simplicity and clarity, Scalia said.

“You don’t get any credit for eloquence,” Scalia said. “Just make it simple and tell us your point. Your job is to make a complex case simple, not a simple case complex.”

Avoid using words you don’t know how to pronounce.

“You’re inclined to think this person is not the sharpest pencil in the box,” Scalia said. “I’ve listened to lawyers who have sent five kids to college on nuclear power and still can’t say the name right. It’s nuclear. Nuclear.”

Use italics sparingly.

“If you’re constantly italicizing words, it sort of reads like a high school girl’s diary,” Scalia said.

Tex Parte Blog covered the talk as well, getting some more great quotes:

I’m pretty sure I’m not eloquent and I don’t think that I ever will be, so that’s good. I use contractions (he isn’t a fan). Blockquotes too (again, not a fan). My sentences are short and simple, which would be good, if they didn’t read like Hemingway on meth.

In short, if Scalia ever managed to get his hands on anything I wrote, he would think that I am a high school girl, who was left back a couple of grades, writing in a diary.

Here’s an interesting question: Does no-fault lend itself to good writing? With very few exceptions, unfortunately the answer is no². No-fault motions don’t vary much. They can’t. What I mean is that the underlying arguments don’t vary. Writing about the same thing, over and over and over, you lose a little something. That little something tends to be research and writing. Does it matter? Probably not.³ Should it matter to you? Probably.

Most attorneys don’t stay in this field long. They come straight out of law school, work a couple of years doing this, and leave⁴. And others stay. Whether you stay or go, you probably want to get ahead. One way to do that is to write well. It isn’t easy, and it’s a talent few possess. Not easy + rare = marketable. I don’t hire people, but if I did, it would be something I looked for. It’d be pretty important to me. Whether it’s important to your boss is irrelevant. That’s a terrible excuse. Someone told me once, “complacency will kill you.” It will. It will glue your feet to the floor.

For all I know, tomorrow I’ll be sitting in court thinking about how trying to write well is a waste of time. Wasted effort having no effect affect effect on the outcome. So take all this with a grain of salt. Also remember, I am no expert. Not even close. I work on my writing when I have time. Sometimes I don’t when I should. Sometimes I focus on my writing, ignoring the content. It doesn’t come easy to me. Never did. Even when I try, I manage to screw it up. Hell, I don’t bother to proof-read my posts.

Getting back to Scalia and Garner…

They have a book, you should read it. I’ve recommended it three times now, which must be some sort of record. Garner teaches CLEs on writing. You should go to one. I missed the one this year because it’s expensive. Really expensive. Have someone else pay for it.

A good start.

____________________

1. The quoted section comes from Star-Telegram.com: http://www.star-telegram.com/dallas_news/story/1457100.html
2. That’s an emphatic “no”
3. With a qualification. Research matters. You shouldn’t be citing bad law or getting cute with your cites.
4. They leave for varied reasons. Sometimes it’s the money. Other times it’s the prestige (or lack thereof). Some people really hate going to Court. It really doesn’t matter.

An important and somewhat novel issue has been decided in New Era Massage Therapy PC v. Progressive Casualty Ins. Co., CV-065009-08/QU, which is a decision of interest in today’s New York Law Journal.

At trial, the parties agreed by stipulation to consolidate the above actions for decision. The issue effecting each case is whether the claimants’ failure to appear for examinations under oath (“EUO”) a proper basis for the defendant’s disclaimer of benefits. The parties submitted briefs on the action bearing index number 065009-08 and agreed that this Court’s decision in that case would be controlling in the remaining six causes of action.

The parties have further agreed that the actions bearing Index Numbers 065000-08 and 065005-08 involve an additional issue.

That is, whether the defendant properly preserved the fee schedule defense and, if so, whether the defendant has met its burden of establishing that an improper fee was assessed for the services rendered thus changing the amount defendant would be obligated to pay.

The first issue is whether the defendant properly denied claimant Ludmillia Jean-Francis’ (Jean-Francis) no-fault benefits as submitted by plaintiff New Era Massage Therapy, P.C. (“New Era”). A review of the record reveals that New Era submitted bills for massage treatments performed upon Jean-Francis between September and December 2007. Defendant paid one bill in the amount of $578.80 and denied three bills for $578.80, $405.16, and $289.40. The denials were based upon Jean-Francis’ nonappearance for EUOs that were scheduled on 10/26/07, 11/30/07, and 1/15/08.

New Era argues that the defendant failed to tender any evidence to prove that Jean-Francis’ attitude constituted a pattern of willful and avowed obstruction. New Era contends that the defendant cannot meet its burden by merely showing that Jean-Francis adjourned two EUOs and failed to appear for one. New Era further argues that the defendant never asserted that it attempted to contact Jean-Francis or even ascertain the reason for her nonappearance at the January EUO. Plaintiff also maintains that the interaction between the parties is demonstrative of a cooperative rather than noncooperative relationship.

Defendant contends that Jean-Francis’ appearance at the scheduled EUOs is a condition precedent to its liability on the insurance policy. Defendant maintains that multiple requests to adjourn EUO appointments do not negate Jean-Francis’ failure to show on three (3) different occasions. Defendant also posits that New Era’s argument runs afoul of the core objectives of no-fault law, because it would require insurers to reschedule EUOs for an indefinite period of time.

Under Insurance Law 5102 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault benefits within thirty (30) days from the date an applicant supplies proof of claim or it will be precluded from offering any defenses at trial (Mt. Sinai Hosp. v. Chubb Group of Ins. Cos., 43 AD3d 899-90 [2d Dept 2007]). An insurer may toll the thirty (30) day period by properly requesting verification within fifteen (15) days from the receipt of the proof of claim form or bill (11 NYCRR 65.15 (d)(1); Capio Medical, P.C. v. Progressive Cas. Ins. Co., 7 Misc3d 129(A) [App Term, 2d & 11th Jud Dists 2005]). The insurance regulations provide for IMEs and EUOs as part of an insurer’s entitlement to additional verification following receipt of the provider’s statutory claim forms (Stephen Fogel Psychological v. Progressive Casualty Ins. Co., 7 Misc3d 18, 19 [App Div, 2d Dept 2004]).

Failure to comply with the provision of an insurance policy requiring the insured to submit to an examination under oath…is a material breach of the policy, precluding recovery of the policy proceeds (Argento v. Aetna Cas. and Sur. Co.,184 AD2d 487 [App Div, 2d Dept 1992]). However, in order for an insurer to prevail on a defense premised upon a claimant’s failure to appear for a scheduled EUO, the insurer must show that the claimant’s attitude was one of willful and avowed obstruction involving a pattern of noncooperation for which no reasonable excuse is offered (Unitron Advantage Ins. Co. v. Carothers, 17 Misc3d 1121(A) [Sup Ct, New York County 2007]). The burden of proving noncooperation is a heavy one (Thrasher v. United States Liability Ins. Co., 19 NY2d 159 [1967]; State Farm Mutual Automobile Ins. Co. v. Figueroa, 8 Misc3d 1011(A) [Sup Ct, Bronx County 2005]). The insurer must demonstrate that it acted diligently and its efforts were reasonably calculated to bring about the insured’s cooperation and that the insured’s attitude was one of willful and avowed obstruction after the cooperation was sought (Thrasher, 19 NY2d at 168). Under this standard, the insured need not have openly “avowed” the intent to obstruct the insurer; however, the showing must support the inference that the insured’s failure to cooperate was deliberate (State Farm Automobile Ins. Co., 8 Misc3d 1011(A)).

Applying these principles, there is no evidence tending to show or even support an inference that Jean-Francis willfully thwarted New Era’s verification process. The defendant scheduled three EUO appointments over a three-month period. Jean-Francis’ attorney contacted the defendant to adjourn two EUOs and Jean-Francis failed to show for the third. It is well settled, however, that an adjournment may occur pursuant to an agreement between the parties, court order, or even unilaterally if a party decides to exercise a right to postpone a matter (see generally Shoff v. Taylor, 162 Misc 681, 685 [Sup Ct, Oneida Cty 1925]; Reynolds v. Cropsey, 241 NY 389, 394 [1925]). Therefore, this Court will not view the 10/26/07 and 11/30/07 adjournments as noncooperation or willful obstruction. In fact, the court can find no affirmative acts on the part of Jean-Francis or her attorney tending to demonstrate ill will or noncooperation. Neither is there any indication that the defendant exerted efforts to engage Jean-Francis in the verification process and that same was met with noncooperation. There is simply no evidence that Jean-Francis actively encumbered the verification process. The only affirmative acts to speak of are those of Jean-Francis’ attorney who contacted the defendant to adjourn the October and November EUOs. Thus, the defendant’s disclaimer based on its contention that Jean-Francis failed to cooperate is not supported by legally sufficient evidence.

…

Accordingly, this court denies that portion of defendant’s argument that the plaintiff’s claims should be denied due to the claimants’ nonappearance for examinations under oath. That part of the defendant’s claim seeking reduction of the amounts to be paid on claims submitted under Index Numbers 065000-08/QU and 065005-08/QU is denied. Defendant shall tender payment in full for each outstanding bill under Index Numbers 065002-08/QU ($1910.04), 065009-08/QU ($1273.36), 065000-08/QU ($3328.00), 065005-08/QU ($2868.00), 065006-08/QU ($863.54), 065004-08/QU ($2139.26), 065008-08/QU ($1234.24) together with statutory interest, costs, and attorneys fees.

For other posts on the Non-cooperation issue, Click HERE and HERE.