January 12, 2010
Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co. (2010 NY Slip Op 50070(U))
https://www.beynensonlaw.com/case-law/canarsie-family-med-practice-pllc-v-american-tr-ins-co-2010-ny-slip-op50070u/
- Decided
- January 12, 2010
- Citation
- 2010 NY Slip Op 50070(U) · 26 Misc 3d 132(A)
- Posture
- Summary judgment
- Outcome
- Split result
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 Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co. (2010 NY Slip Op 50070(U))
| Canarsie Family Med. Practice, PLLC v American Tr. Ins. Co. |
| 2010 NY Slip Op 50070(U) [26 Misc 3d 132(A)] |
| Decided on January 12, 2010 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through November 4, 2011; it will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and WESTON, JJ
2009-112 K C.
against
American Transit Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered August 8, 2008, deemed in part from a judgment of said court entered November 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the August 8, 2008 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action and denied so much of defendant’s cross motion as sought summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,113.03. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s first, second and third causes of action.
ORDERED that the judgment is affirmed without costs; and it is further,
ORDERED that the order, insofar as appealed from, is modified by providing that so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s second and third causes of action is granted; as so modified, the order, insofar as appealed from, is affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action, and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered awarding plaintiff the principal sum of $1,113.03 on its fourth through tenth causes of action.
Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]the mailing of the claims in question since he stated that he had personally mailed the claims (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Thus, insofar as is relevant to this appeal by defendant, plaintiff made out its prima facie entitlement to summary judgment.
While defendant argues that plaintiff was not entitled to summary judgment upon its fourth through tenth causes of action and that defendant was entitled to summary judgment dismissing said causes of action because defendant had timely denied the underlying claims based on the assignor’s failure to appear for independent medical examinations, defendant’s motion papers failed to establish that the assignor failed to appear for such examinations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to demonstrate its entitlement to judgment upon said causes of action or even to raise a triable issue of fact with respect thereto. Accordingly, plaintiff was entitled to summary judgment upon these causes of action (id.).
In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action, defendant established that the claims at issue in said causes of action were timely denied on the ground of lack of medical necessity based upon an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for such medical services (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing said causes of action, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since plaintiff failed to do so, defendant was entitled to summary judgment dismissing plaintiff’s second and third causes of action (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).
Defendant also contends that the Civil Court should have granted it summary judgment dismissing plaintiff’s first cause of action because defendant established that it had timely denied the claim on the ground that the fees charged were excessive and not in accordance with the workers’ compensation fee schedule. While defendant is not precluded from asserting said defense (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]), defendant failed to establish that the fees charged were in fact excessive. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action.
Accordingly, the judgment in favor of plaintiff is affirmed and the order, insofar as appealed
from, is modified by providing that defendant’s cross motion for summary
judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s second
and third causes of action.
Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 12, 2010
Legal questions (5)
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.
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 provider made out its prima facie case because its billing manager stated he personally mailed the claims and his affidavit made the annexed claim forms admissible as business records.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category.
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
Held the billing manager's affidavit established that the claims were mailed because he stated he had personally mailed them, rejecting the insurer's challenge to the provider's mailing proof.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.
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's papers failed to establish that the assignor did not appear for the IMEs, so it neither won summary judgment nor raised a triable issue, and the provider was awarded those claims.
Of the 851 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’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it
Held the insurer's affirmed peer review report, which set forth a factual basis and medical rationale, made a prima facie showing of no medical necessity that the provider failed to rebut, so those causes of action were dismissed.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (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 (rules on the question, but another ground decided the case)
Held that although the insurer was not precluded from asserting the defense, it failed to establish that the fees charged actually exceeded the workers' compensation fee schedule, so its motion was denied on that claim.
Of the 284 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
A label shows how this decision treated the case it cites.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) Contrasted (cf., but see)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- 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.
- A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
- Amaze Med. Supply Inc. v Allstate Ins. Co. (2006 NY Slip Op 51412(U)) FollowedThe insurer's peer review supplied a factual basis and medical rationale sufficient to raise a triable issue of medical necessity.
- A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
- Westchester Med. Ctr. v American Tr. Ins. Co. (2005 NY Slip Op 03046) Contrasted (cf., but see)An insurer's failure to timely deny a hospital claim precluded its defense that the hospital used the wrong DRG billing code.
Similar decisions
- Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.
- Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
- 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.
- Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50963(U))The insurer proved its IME nonappearance defense for 13 claims but failed to establish timely denial of the fourteenth.
- Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52398(U))Neither party established entitlement to summary judgment on the claims reviewed after reargument.