December 5, 2011

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))

https://www.beynensonlaw.com/case-law/eastern-star-acupuncture-p-c-v-american-tr-ins-co-2011-ny-slip-op52205u/

Court: Appellate Term, Second Department
Decided: December 5, 2011
Citation: 2011 NY Slip Op 52205(U) · 33 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: IME no-show Fee schedule Timeliness and preclusion
Legal questions: No-show: coverage defense or precludable? · No-show defense: insurer's proof · Proving a fee schedule defense · Proof of mailing (see the maps)

Cite as

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co., 33 Misc 3d 141(A), 2011 NY Slip Op 52205(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report. The Appellate Term, Second Department, modified the order on the parties' summary judgment motions. The provider retained summary judgment on that claim because the insurer raised no triable issue. For four partially paid claims, a factual issue concerning the workers' compensation fee schedule required denial of the provider's motion; the insurer's cross motion remained denied. For a separate claim denied for IME nonappearance, the insurer established timely mailing of the scheduling letters and the assignor's failure to attend, warranting dismissal on its cross motion. The court remitted for further proceedings on the remaining claims.

Reported in New York Official Reports at Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))

[*1]

Eastern Star Acupuncture, P.C. v American Tr. Ins. Co.

2011 NY Slip Op 52205(U) [33 Misc 3d 141(A)]

Decided on December 5, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-810 K C.

Eastern Star Acupuncture, P.C. as Assignee of JOSE GIL, Respondent,
against
American Transit Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered October 30, 2009. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order granting plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint.

Inasmuch as defendant raises no issue with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

Defendant established that its denial of claim forms were timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With regard to the claim dated October 4, 2006, for services rendered from August 30, 2006 through September 1, 2006, although defendant’s claims examiner stated in his affidavit submitted in opposition to plaintiff’s motion that he had denied this claim based upon the failure [*2]of plaintiff’s assignor to appear for two independent medical examinations (IMEs), the denial of claim form for this claim reflects that defendant, in fact, denied the claim based upon an IME report. Since defendant did not deny this claim based upon the failure of plaintiff’s assignor to appear for the IMEs, this defense is precluded with respect to this claim (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2d Dept 2009]; but see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011]). Consequently, as defendant has raised no triable issue as to this claim, we do not disturb the award of summary judgment with respect thereto.

However, plaintiff was not entitled to summary judgment upon its two claims dated July 25, 2006 and its two claims dated August 16, 2006. While defendant partially paid these claims and partially denied them, based upon defendant’s belief that the amounts sought by plaintiff exceeded the amounts permitted by the workers’ compensation fee schedule, we find that an issue of fact exists with respect thereto (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co., 26 Misc 3d 135[A], 2010 NY Slip Op 50149[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Defendant denied plaintiff’s claim dated September 11, 2006 based upon plaintiff’s assignor’s failure to appear for duly scheduled IMEs. Defendant demonstrated that it had timely mailed the IME requests, through the submission of an affidavit of an employee of the entity which scheduled the IMEs on behalf of defendant, who stated that she had personally mailed the IME requests on particular dates (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). Defendant also submitted an affidavit and an affirmation, both of which were sufficient to establish that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). As a result, defendant was entitled to summary judgment dismissing this claim (see All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50949[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied with respect to the two claims dated July 25, 2006, the two claims dated August 16, 2006 and the claim dated September 11, 2006, and by further providing that defendant’s cross motion for summary judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s claim dated September 11, 2006.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 05, 2011

Legal questions (4)

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.

No-show: coverage defense or precludable?

Open the full map

Is an IME/EUO no-show defense precluded if the insurer did not timely deny the claim on that ground?

This decision: No-show defense is subject to preclusion and fails for want of a timely, proper denial

Held the IME no-show defense precluded for one claim because the insurer's denial form actually denied it on an IME report, not on the assignor's failure to appear.

Coverage defensePrecludable: denial lackingPrecludable: denial timelyThis decisionCites it or cited by itCited or followed

Of the 508 decisions on this question in the Second Department courts and the Court of Appeals, 166 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected

Held the insurer proved for one claim that the IME requests were timely mailed and, by affidavit and affirmation, that the assignor failed to appear, entitling it to dismissal of that claim.

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

Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proving a fee schedule defense

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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 an issue of fact existed whether the partially paid claims exceeded the workers' compensation fee schedule, so the provider was not entitled to summary judgment on them.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

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.

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 insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer established timely mailing of its denials and, through a scheduler employee who personally mailed them on specific dates, of the IME requests.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589) FollowedThe insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.
Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC (2011 NY Slip Op 01948) Contrasted (cf., but see)An assignor's failure to attend required IMEs permits retroactive denial of no-fault claims regardless of denial timeliness.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
First Aid Occupational Therapy, PLLC v Country-Wide Ins. Co. (2010 NY Slip Op 50149(U))Unanswered verification requests left three claims premature; the insurer's unsupported unbundling defense failed on two others.
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.
All Borough Group Med. Supply, Inc. v Utica Mut. Ins. Co. (2011 NY Slip Op 50949(U)) FollowedThe insurer's affidavits established timely mailing of IME requests and denials and the assignor's failure to attend the IMEs. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's complaint.

Cited by

A label shows how the later decision treated this one.

Integral Med. Supply Corp. v Progressive Ins. Co. (2025 NY Slip Op 50493(U)) FollowedA material misrepresentation defense concerning a vehicle's garaging location is subject to preclusion for untimely denial.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50468(U))The insurer's IME nonappearance defense did not warrant summary judgment because timely denial remained a factual issue.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50472(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims.
Art of Healing Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50766(U))The insurer failed to obtain IME nonappearance dismissal, and the provider failed to establish its prima facie case for the disputed claim.
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.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50471(U))An insurer's IME nonappearance defense is subject to preclusion if the insurer fails to timely deny the claims.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely.

Similar decisions

East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51229(U))The insurer established IME nonappearance but failed to show tolling of the denial period for its fee-schedule reductions.
Broad St. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50453(U))The insurer obtained dismissal of paid portions of two claims, but inadequate IME proof left the provider entitled to judgment on another claim.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.
East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
Tri-Mount Acupuncture, P.C. v N.Y. Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50335(U))The insurer proved mailing of IME notices and timely denials and the assignor's nonappearance; the provider raised no triable issue.