September 22, 2017

AL Acupuncture, P.C. v Geico Ins. Co. (2017 NY Slip Op 51249(U))

https://www.beynensonlaw.com/case-law/al-acupuncture-p-c-v-geico-ins-co-2017-ny-slip-op-51249u/

Court: Appellate Term, Second Department
Decided: September 22, 2017
Citation: 2017 NY Slip Op 51249(U)
Posture: Summary judgment
Outcome: Split result
Issues: Fee schedule Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing · No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)

Cite as

AL Acupuncture, P.C. v Geico Ins. Co., 2017 NY Slip Op 51249(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer proved full fee-schedule payment of some claims but failed to establish mailing of IME notices for another claim. The provider did not rebut timely denials and full payment under the chiropractors' acupuncture fee schedule. For the IME-based claim, the vendor's affidavit was notarized a year before the year of the Civil Court index number appearing on it, defeating proof of mailing. The provider also failed to establish an untimely or legally deficient denial of that claim. The Appellate Term, Second Department, modified the order, insofar as appealed from, to dismiss the fee-schedule claims and deny the provider's motion on the IME-based claim; the insurer's cross motion on that claim remained denied.

Reported in New York Official Reports at AL Acupuncture, P.C. v Geico Ins. Co. (2017 NY Slip Op 51249(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

AL Acupuncture, P.C., as Assignee of Tamer Mobarak, Respondent,
against
Geico Insurance Company, Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Anna Rusanov, P.C., for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 1, 2014. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008 is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from July 8, 2008 to September 5, 2008 are granted; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. By order entered July 1, 2014, insofar as appealed from, the Civil Court granted the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, and denied defendant’s cross motion.

Defendant demonstrated that it had timely denied the claims for services rendered from [*2]July 8, 2008 to September 5, 2008 (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that it had fully paid plaintiff for the services at issue in those claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut defendant’s showing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.

As to so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008, which was denied based on the assignor’s failure to appear for duly scheduled independent medical examinations (IMEs), we find that defendant is not entitled to summary judgment thereon, as the affidavit from the third-party vendor who had purportedly scheduled the IMEs in question for defendant was, according to the statement of the notary public, sworn to a year before the year of the Civil Court index number which appears on the affidavit. Thus, the Civil Court properly found that defendant had failed to establish the mailing of the IME scheduling letters. However, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon this claim should have been denied, as plaintiff failed to establish that the claim had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover upon a claim for services rendered from September 8, 2008 to September 25, 2008 is denied, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from July 8, 2008 to September 5, 2008 are granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017

Legal questions (4)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider failed to show the IME-denied claim had not been timely denied or that the denial was conclusory, vague or without merit, so its motion on that claim was denied.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: Different mailing results for different documents or claims in one decision

Held the insurer proved timely mailing of its denials of the earlier claims, but did not establish mailing of the IME scheduling letters because the vendor's affidavit bore an impossible notarization date.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed

Held the insurer failed to establish mailing of the IME scheduling letters because the scheduling vendor's affidavit was, per the notary, sworn a year before the index number year.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decision

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 118 (this one included) are in the same category.

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer proved the billed amount exceeded the applicable fee schedule

Held the insurer showed it fully paid the acupuncture claims under the fee schedule rate for acupuncture by chiropractors; the provider did not rebut this, so those claims were dismissed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 147 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Great Wall Acupuncture, P.C. v Geico Ins. Co. (2009 NY Slip Op 29467) FollowedAn insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.
Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Essential Acupuncture Servs., P.C. v GEICO Indem. Co. (2018 NY Slip Op 51600(U))The insurer established full fee schedule payment of acupuncture claims and lack of medical necessity for other disputed services.
Megacure Acupuncture, P.C. v GEICO Ins. Co. (2012 NY Slip Op 51291(U))The insurer proved full fee-schedule payment for earlier acupuncture services and lack of medical necessity for later services.
LMS Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50416(U))The insurer established full payment under the chiropractor acupuncture fee schedule for all claims except one awarded to the provider.
Ema Acupuncture, P.C. v Geico Ins. Co. (2014 NY Slip Op 50415(U))The insurer proved full fee-schedule payment of the acupuncture claims except the initial-visit claim, which remained payable.
Gentle Care Acupuncture, P.C. v Geico Ins. Co. (2010 NY Slip Op 52226(U))An insurer may use the chiropractic acupuncture fee schedule to reimburse acupuncture services performed by a licensed acupuncturist.