May 18, 2015

Tutto Anesthesia v American Country Ins. Co. (2015 NY Slip Op 50738(U))

https://www.beynensonlaw.com/case-law/tutto-anesthesia-v-american-country-ins-co-2015-ny-slip-op50738u/

Court: Appellate Term, First Department
Decided: May 18, 2015
Citation: 2015 NY Slip Op 50738(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Provider's prima facie case Timeliness and preclusion Discovery and procedure
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Challenging the assignment of benefits (see the maps)

Cite as

Tutto Anesthesia v American Country Ins. Co., 2015 NY Slip Op 50738(U) (App Term, 1st Dept 2015)

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 own date-stamped claim forms established receipt and overdue payment of the providers' no-fault claims. The Appellate Term, First Department, reversed the order, insofar as appealed from, granted the providers partial summary judgment on the first through sixth causes of action under Insurance Law § 5106 (a), and denied the insurer's motion to compel discovery. The insurer waived assignment objections by failing to seek verification and could not assert excessive fees without establishing denials within 30 days. It failed to show that further discovery could raise a triable issue. Its speculative coverage-discovery argument was raised for the first time on appeal and was insufficient. The request to toll interest remained unreviewed because the insurer filed no cross appeal.

Reported in New York Official Reports at Tutto Anesthesia v American Country Ins. Co. (2015 NY Slip Op 50738(U))

Tutto Anesthesia, Palisade Surgery Center, LLC, and Neal Goldsmith, D.C. a/a/o Elvira Martinez and Lissette Vicente, Plaintiffs-Appellants,
against
American Country Insurance Company, Defendant-Respondent.

Plaintiffs, as limited by their briefs, appeal from so much of an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), entered March 21, 2014, as denied their cross motion for summary judgment on their first through sixth causes of action, and granted that branch of defendant’s motion seeking to compel plaintiffs to respond to discovery demands.

Per Curiam.

Order (Lynn R. Kotler, J.), entered March 21, 2014, insofar as appealed from, reversed, with $10 costs, plaintiffs’ cross motion for partial summary judgment on their first through sixth causes of action is granted, and that branch of defendant’s motion seeking to compel discovery is denied.

Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008]. In opposition, defendant failed to raise a triable issue. Indeed, defendant’s own documentary submissions, which included plaintiffs’ claim forms that were date-stamped received by defendant, established defendant’s receipt of plaintiffs’ claims and that payment of benefits was overdue (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8, 9 [2007]).

Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011], lv denied 18 NY3d 810 [2012]).

Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921 [2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).

In the absence of a cross appeal by defendant, we do not address the propriety of the court’s denial of the request to toll interest. Defendant’s remaining arguments, to the extent preserved for appellate review, have been considered and rejected.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 18, 2015

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: Claimant's proof held to make out its prima facie case

Held the providers established prima facie entitlement, the insurer's own date-stamped copies of the claim forms establishing receipt and that payment was overdue.

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, 45 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

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 provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the insurer's own submissions, including the providers' claim forms date-stamped as received, established the insurer's receipt of the claims.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 160 decisions on this question in the First Department courts and the Court of Appeals, 12 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Challenging the assignment of benefits

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Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: Insurer barred from contesting the assignment because it did not timely object, verify, deny or plead on that ground (rules on the question, but another ground decided the case)

Held the insurer waived any objection based on lack of proof of the assignments because it never sought verification of them.

Defense waivedAssignment defense upheldThis decisionCites it or cited by itCited or followed

Of the 12 decisions on this question in the First Department courts and the Court of Appeals, 9 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited in this decision

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

Countrywide Ins. Co. v 563 Grand Med., P.C. (2008 NY Slip Op 03059) FollowedAn insurer need not state its medical rationale in the prescribed denial form, and a nurse's medical necessity review is not per se invalid.
Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co. (2007 NY Slip Op 27173) FollowedThe insurer's verified interrogatory answers established receipt and partial payment of the claims and defeated its proof-of-billing objection.
Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067)An insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192)An insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.
Mercury Cas. Co. v Encare, Inc. (2011 NY Slip Op 08969) FollowedAn insurer cannot avoid preclusion of a fee-schedule defense by treating excessive fees as a lack of coverage.
Interboro Ins. Co. v Clennon (2014 NY Slip Op 00092) FollowedThe assignor's two EUO nonappearances supported a declaration that the providers were not entitled to no-fault benefits.
LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 04486)The providers proved claim mailing, and the insurer waived assignment objections by failing to seek verification within 10 days.

Similar decisions

Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.
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.
Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul M.D. v Hereford Ins. Co. (2020 NY Slip Op 51379(U))A lack-of-coverage defense is not precluded by defects in, or untimeliness of, an insurer's denial of claim.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.
A.B. Med. Servs., PLLC v Amex Assur. Co. (2015 NY Slip Op 51271(U))A provider need not lay a business-record foundation for its billing documents to establish prima facie entitlement to summary judgment.