September 22, 2017

Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-21st-century-ins-co-2017-ny-slip-op-51228u/

Court: Appellate Term, Second Department
Decided: September 22, 2017
Citation: 2017 NY Slip Op 51228(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 · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Compas Med., P.C. v 21st Century Ins. Co., 2017 NY Slip Op 51228(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 failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer summary judgment on the fourth cause, citing 11 NYCRR 65-3.8 (a) (1). The provider also failed to establish entitlement to summary judgment on that claim because its proof did not show an untimely or legally insufficient denial. Dismissal of the first and fifth causes was affirmed because the insurer established full payment for services billed under code 64550 and the provider failed to rebut that showing. Denial of the provider's motion on the remaining causes was affirmed because receipt of those claims remained disputed.

Reported in New York Official Reports at Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))

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

Compas Medical, P.C., as Assignee of Yusuff, Aramide, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 2, 2014. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, fourth and fifth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action is denied; 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 on the ground that defendant had fully paid plaintiff for the services underlying the first, fourth and fifth causes of action in accordance with the workers’ compensation fee schedule, and that it had not received the claims underlying the remaining causes of action. Plaintiff appeals from so much of an order of the Civil Court as denied plaintiff’s motion and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first, fourth and fifth causes of action.

Plaintiff correctly argues that defendant failed to establish that its denial of the claim underlying the fourth cause of action was timely (see 11 NYCRR 65-3.8 [a] [1]) and that, therefore, its fee schedule defense as to that claim is not precluded (see Great Wall Acupuncture, [*2]P.C. v GEICO Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52308[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing this cause of action is denied. However, plaintiff failed to demonstrate its entitlement to summary judgment on this claim, as the proof submitted by plaintiff did not establish that the claim at issue 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 timely denial of claim form 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]).

Contrary to plaintiff’s further argument, defendant’s proof was sufficient to demonstrate, prima facie, that defendant had fully paid for the services charged under code 64550 of the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to rebut that showing. Consequently, we do not disturb so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and fifth causes of action.

As to the remaining causes of action, we find, contrary to plaintiff’s argument, that there is a triable issue of fact as to whether defendant received the claims underlying those causes of action.

We note that plaintiff’s claim that one of defendant’s affidavits was not signed or notarized is contradicted by the record.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action is denied.

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

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

Legal questions (3)

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's proof did not establish that the claim had not been timely denied or that the timely denial was conclusory, vague or without merit, so it was not entitled to summary judgment.

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.

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's proof showed it had fully paid the code 64550 services under the workers' compensation fee schedule and the provider did not rebut it, so the first and fifth causes of action stayed 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.

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: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received (rules on the question, but another ground decided the case)

Held a triable issue of fact existed as to whether the insurer received the provider's claims underlying the remaining causes of action, so the provider was not entitled to summary judgment on them.

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, 103 (this one included) are in the same category.

Cited in this decision

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

Great Wall Acupuncture, P.C. v GEICO Ins. Co. (2009 NY Slip Op 52308(U)) FollowedThe insurer's fee-schedule defense was precluded for one claim because it failed to establish a timely denial of the unpaid balance.
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)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Cited by

Allstate Ins. Co. v Buffalo Neurosurgery Group (2019 NY Slip Op 03749)The insurer established a fee-schedule defense but failed to show that the assignor's spinal fusion surgery was medically unnecessary.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
Compas Med., P.C. v Hartford Ins. Co. (2015 NY Slip Op 50784(U))The provider obtained summary judgment on the fourth, fifth and tenth causes of action because the insurer failed to deny those claims timely.
Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.