February 17, 2016

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co. (2016 NY Slip Op 50167(U))

https://www.beynensonlaw.com/case-law/pugsley-chiropractic-pllc-v-merchants-preferred-ins-co-2016-ny-slip-op50167u/

Court: Appellate Term, First Department
Decided: February 17, 2016
Citation: 2016 NY Slip Op 50167(U)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co., 2016 NY Slip Op 50167(U) (App Term, 1st Dept 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 motion failed because its chiropractor/acupuncturist's IME report was not in admissible form. The report incorrectly identified its author as a physician and purported to be an affirmation under CPLR 2106, although neither a chiropractor nor an acupuncturist could affirm a medical report under that provision. The insurer also failed to show that the report had been sworn before a notary or other authorized official. The Appellate Term, First Department, modified the order to deny the insurer's summary judgment motion and reinstate the complaint. It affirmed denial of the provider's cross motion because the provider failed to establish that its claims were unpaid or undenied within 30 days.

Reported in New York Official Reports at Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co. (2016 NY Slip Op 50167(U))

Pugsley Chiropractic PLLC, a/a/o Andrew Michael, Plaintiff-Appellant,
against
Merchants Preferred Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Tanya R. Kennedy, J.), entered November 12, 2014, which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Per Curiam.

Order (Tanya R. Kennedy, J.), entered November 12, 2014, modified to deny defendant’s motion for summary judgment and to reinstate the complaint; as modified, order affirmed, without costs.

Defendant’s motion for summary judgment dismissing this first-party no-fault action on the ground of lack of medical necessity should have been denied. The independent medical examination (IME) report of defendant’s chiropractor/acupuncturist, one Antoinette Perrie, was not in admissible form and should not have been considered. The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106 (see Walker v Village of Ossining, 18 AD3d 867, 868 [2005]; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]). Nor was the report shown to have been properly “sworn to” before a notary or other authorized official (see Hartley v White, 63 AD3d 1689, 1690 [2009]; Feggins v Fagard, 52 AD3d 1221, 1223 [2008]; see also Gleason, Practice Commentaries, McKinney’s Cons. Laws of NY, Book 7B, C2106:4. P 609-610).

Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur

Decision Date: February 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.

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 cross motion properly denied because it failed to establish that its claims were not denied or paid within the 30-day period.

Proof sufficientMailing/receipt not shownOverdue not shownOther element missingThis decisionCites it or cited by itCited or followed

Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 3 (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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the IME report inadmissible because a chiropractor or acupuncturist cannot affirm under CPLR 2106 and the report was not shown to be sworn, so the insurer's motion should have been denied.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (this one included) are in the same category.

Cited in this decision

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

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

Pugsley Chiropractic PLLC v MVAIC (2015 NY Slip Op 50718(U))MVAIC need not notify the provider of an IME scheduled for the assignor.
Premier Health Choice Chiropractic, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 51802(U))The provider's unsworn medical report failed to rebut the insurer's sworn IME showing that chiropractic treatment lacked medical necessity.
Pugsley Chiropractic, PLLC v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51603(U))The insurer sufficiently established the provider's failure to appear for two scheduled EUOs. The Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the assigned no-fault claims and denying the provider's cross motion.
American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
AJS Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 50208(U))The insurer's chiropractic IME report and supporting affidavit established lack of medical necessity, and the provider offered no rebuttal evidence.