December 17, 2014

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U))

https://www.beynensonlaw.com/case-law/boris-kleyman-physician-p-c-v-ids-prop-cas-ins-co-2014-ny-slip-op51810u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51810(U) · 46 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Assignments and standing
Legal questions: Challenging the assignment of benefits (see the maps)

Cite as

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 46 Misc 3d 129(A), 2014 NY Slip Op 51810(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 challenge to the provider's standing based on a missing assignment form was raised for the first time on appeal. The Appellate Term, Second Department, affirmed the provider's summary judgment award and denial of the insurer's cross motion dismissing the complaint. The standing argument was not properly before the court. Alternatively, the claim forms received by the insurer stated that the assignor had executed an assignment and that the signature was on file, rendering the challenge meritless under Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. The insurer's remaining argument was also raised for the first time on appeal and was rejected as meritless without further description.

Reported in New York Official Reports at Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U))

[*1]

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co.

2014 NY Slip Op 51810(U) [46 Misc 3d 129(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1326 Q C

Boris Kleyman Physician, P.C. as Assignee of JAMAAL AGARD, Respondent,
against
IDS Property Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered May 3, 2012, deemed from a judgment of the same court entered May 18, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 3, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,438.92.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s contention that plaintiff did not establish that it has standing to receive reimbursement of the first-party no-fault benefits to which its assignor is entitled because plaintiff failed to annex a copy of the assignment of benefits form executed by its assignor is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]). In any event, since the claim forms received by defendant stated that plaintiff’s assignor had executed an assignment and, as in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312, 319-320 [2007]), defendant was advised that the signature on the assignment was “on file,” defendant’s contention is devoid of merit (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319-320 [2007]).

Defendant’s remaining argument is likewise not properly before this court, as this argument is also being raised for the first time on appeal (see Joe, 88 AD3d 963) and, in any event, this argument lacks merit (cf. Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is affirmed.

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

Decision Date: December 17, 2014

Legal questions

A question 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.

Challenging the assignment of benefits

Open the full map

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

Held the insurer's no-assignment standing objection unpreserved because first raised on appeal, and meritless anyway since the claim forms stated the assignor's signature was 'on file', as in Hospital for Joint Diseases.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 48 (this one included) are in the same category.

Cited in this decision

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

Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067) FollowedAn insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
Radiology Today, P.C. v Mercury Ins. Co. (2012 NY Slip Op 50148(U)) Contrasted (cf., but see)The provider's owner's affirmation was improper under CPLR 2106 and failed to rebut the insurer's medical-necessity peer review.

Cited by

Top Choice Pharm. Corp. v Merchants Mut. Ins. Co. (2022 NY Slip Op 50867(U))The insurer waived its assignment objection and failed to support its medical-necessity defense with a nonconclusory opinion.

Similar decisions

Ditmas Primary Med. Care, P.C. v Republic W. Ins. Co. (2021 NY Slip Op 50438(U))The insurer's proof established timely mailing of EUO notices and denials and the assignor's failure to appear for the scheduled EUOs. The insurer moved for summary judgment dismissing the provider's assigned no-fault claims.
JCC Med., P.C. v American Tr. Ins. Co. (2018 NY Slip Op 51764(U))The scheduled IME doctor's affirmation established the assignor's failure to appear for the IMEs. In the provider's action for assigned no-fault benefits, the Appellate Term, Second Department, affirmed the denial of the provider's summary judgment motion and the grant of the insurer's cross motion dismissing the complaint.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50960(U))The insurer's litigation examiner affidavit established timely mailing of the denials based on the assignor's IME nonappearance.
Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50762(U))The provider established its prima facie case, and the insurer failed to prove timely mailing of denials needed to avoid preclusion.