September 19, 2016

Arguelles, M.D., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51366(U))

https://www.beynensonlaw.com/case-law/arguelles-m-d-p-c-v-american-tr-ins-co-2016-ny-slip-op51366u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51366(U)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity IME no-show Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof · Lack of medical necessity (see the maps)

Cite as

Arguelles, M.D., P.C. v American Tr. Ins. Co., 2016 NY Slip Op 51366(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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's medical-necessity showing was unrebutted for six claims, but its proof did not warrant dismissal of four others. The provider offered no admissible medical rebuttal for the first through sixth causes of action. For the seventh, the insurer lacked personal-knowledge proof of IME nonappearance, while the provider failed to establish attendance. For the eighth, the insurer proved no defense, the record showed no concession of liability, and the provider failed to establish an untimely or legally insufficient denial. Receipt of the ninth and tenth claims presented factual issues. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion on the seventh through tenth causes of action, affirming dismissal of the first six and denial of the provider's motion.

Reported in New York Official Reports at Arguelles, M.D., P.C. v American Tr. Ins. Co. (2016 NY Slip Op 51366(U))

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

Arguelles, M.D., P.C., as Assignee of BETTY ST. FLEUR, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 26, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the seventh through tenth causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on various grounds.

Contrary to plaintiff’s contention as to the first through sixth causes of action, plaintiff failed to submit admissible medical proof to rebut defendant’s prima facie showing that the services at issue were not medically necessary. Plaintiff’s remaining contention as to these causes of action lacks merit (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50587[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

However, as to the seventh cause of action, plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff’s assignor for independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action should have been denied. However, since plaintiff failed to demonstrate that its assignor had appeared for either of the IMEs, and thereby establish that defendant’s denial based on this ground lacked [*2]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]), the branch of plaintiff’s motion for summary judgment as to this cause of action was properly denied.

Contrary to plaintiff’s argument as to the eighth cause of action, while defendant failed to prove any defense as to the claim underlying this cause of action, the record does not demonstrate that defendant conceded owing this claim. Moreover, plaintiff failed to establish its prima facie entitlement to summary judgment on this cause of action, since the proof submitted by plaintiff failed to establish that this 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 timely denial of claim form with respect thereto that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]). Thus, we find that neither party was entitled to summary judgment as to this cause of action.

Finally, as to the ninth and tenth causes of action, we find that there is a triable issue of fact as to whether defendant received the claims underlying those causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the seventh through tenth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 19, 2016

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 failed its prima facie burden on the seventh and eighth causes of action because it did not show those claims were not timely denied or that the denials lacked merit, including not showing its assignor attended the IMEs.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 nonappearance by someone with personal knowledge

Held the insurer not entitled to summary judgment on the IME no-show claim because it submitted no proof from anyone with personal knowledge of the assignor's nonappearance.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the insurer's prima facie showing that the services were not medically necessary stood because the provider submitted no admissible medical proof in rebuttal.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category.

Cited in this decision

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

Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co. (2010 NY Slip Op 50587(U)) FollowedThe provider's conclusory challenge to the peer reviewer's signature did not raise a factual issue defeating the insurer's summary judgment motion.
Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.
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.
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.

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.
TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
Arguelles M.D., P.C. v American Ind. Ins. Co. (2022 NY Slip Op 50926(U))The provider's action was time-barred because its submission evidence placed the payment due date more than six years before suit.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50413(U))IME scheduling letters need not be mailed to the provider when mailed to the assignor under the applicable no-fault regulations.