March 17, 2016
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50376(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-new-york-cent-mut-fire-ins-co-2016-ny-slip-op50376u/
- Decided
- March 17, 2016
- Citation
- 2016 NY Slip Op 50376(U) · 51 Misc 3d 128(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Issues
- IME no-show Fee schedule
- Legal questions
- No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)
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.
Reported in New York Official Reports at Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50376(U))
| Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. |
| 2016 NY Slip Op 50376(U) [51 Misc 3d 128(A)] |
| Decided on March 17, 2016 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on March 17, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
&em;
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 31, 2012. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied all of the claims at issue based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs). Defendant also sought to dismiss the first through third and fifth through seventh causes of action on the additional ground that the fees sought exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. In an order entered July 31, 2012, insofar as appealed from, the Civil Court denied defendant’s motion.
While defendant submitted properly sworn statements by the chiropractor and doctor who were scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the Fexaminations, and, therefore, defendant failed to establish its entitlement to judgment as a matter of law dismissing any causes of action on this ground (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]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
The affidavit of defendant’s litigation examiner was sufficient to demonstrate prima facie that defendant had also properly reduced the amount of plaintiff’s claims underlying the first through third and fifth through seventh causes of action pursuant to the workers’ compensation fee schedule. However, in opposition to defendant’s motion, plaintiff raised a triable issue of fact with respect to whether these reductions were proper. As a result, defendant was not entitled to summary judgment upon these causes of action based on fee schedule grounds.
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 17, 2016
Legal questions (2)
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.
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 failed to establish the IME no-show defense because the sworn statements of the scheduled chiropractor and doctor did not show personal knowledge of the assignor's nonappearance.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 79 (this one included) are in the same category.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial
Held the litigation examiner's affidavit showed prima facie that the claims were properly reduced under the fee schedule, but the provider's opposition raised a triable issue on whether the reductions were proper.
Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.
Cited in this decision
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An 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))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
- Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.
Similar decisions
- Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51826(U))The insurer proved mailing of IME notices and denials but failed to establish its fee schedule defense to two claims.
- Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U))The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51138(U))The insurer proved nonreceipt of one claim form but failed to establish that other billed fees exceeded the workers' compensation fee schedule.
- Compas Med., P.C. v Geico Ins. Co. (2015 NY Slip Op 51590(U))The insurer's conclusory IME nonappearance proof and the provider's deficient prima facie showing defeated both motions on the third cause of action.
- Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51667(U))The insurer's untimely denial precluded its EUO and IME nonappearance defenses to the third cause of action.