July 19, 2006

Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))

https://www.beynensonlaw.com/case-law/accessible-advance-med-p-c-v-allstate-ins-co-2006-ny-slip-op-51599u/

Court: Appellate Term, Second Department
Decided: July 19, 2006
Citation: 2006 NY Slip Op 51599(U) · 12 Misc 3d 147(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Timeliness and preclusion Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

Accessible & Advance Med. P.C. v Allstate Ins. Co., 12 Misc 3d 147(A), 2006 NY Slip Op 51599(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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 timely denials lacked a factual basis, and it failed to prove timely sending of the referenced peer review. Denial forms cured the provider's deficient mailing proof under Insurance Law § 5106 (a). The denials and explanations of benefits merely referred to a peer review to be sent separately. Without evidence it was sent within 30 days, the majority found the medical necessity defense precluded. Searching the record, the Appellate Term, Second Department, modified the order, insofar as appealed from, granted judgment on both claims, and remanded for interest and attorney's fees. A separate concurrence agreed only with the result, citing 11 NYCRR 65-3.8 (b) (4) as requiring release of the report upon written request.

Reported in New York Official Reports at Accessible & Advance Med. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51599(U))

[*1]

Accessible & Advance Med. P.C. v Allstate Ins. Co.

2006 NY Slip Op 51599(U) [12 Misc 3d 147(A)]

Decided on July 19, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 19, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2005-1190 K C. NO. 2005-1190 K C

Accessible and Advance Medical P.C., A/a/o Alex Vega, Respondent,
against
Allstate Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 12, 2005. The order, insofar as appealed from, granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff partial summary judgment upon its claim for $1,546.20 and denied defendant’s cross motion for summary judgment.

Order, insofar as appealed from, modified by providing that, upon searching the record, plaintiff’s motion for summary judgment is granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees; as so modified, affirmed without costs.

In an action to recover first-party no-fault benefits for medical services rendered to its assignor, a health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). While the affidavit submitted by plaintiff was insufficient to establish the mailing of any of the appended claim forms to defendant, the deficiency in plaintiff’s moving papers concerning proof of its submission of the claims was cured by defendant’s NF-10 denial of claim forms which adequately established that plaintiff sent, and that defendant received, said claim forms (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]). [*2]

Although defendant’s submissions were sufficient to establish that defendant mailed, within the 30-day claim determination period, its NF-10 forms (see D.A.V. Chiropractic P.C. v American Tr. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50609[U] [App Term, 2d & 11th Jud Dists]; cf. Gribenko v Allstate Ins. Co., 10 Misc 3d 139[A], 2005 NY Slip Op 52201[U] [App Term, 2d & 11th Jud Dists]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]), plaintiff was nevertheless entitled to summary judgment upon said claims. Defendant’s denial of claim forms and the accompanying explanation of benefit forms merely advised plaintiff that the claims were denied pursuant to a peer review report and that a copy of said report would be sent to plaintiff under separate cover. Since there is no evidence that the peer review was sent to plaintiff under separate cover within the 30-day claim determination period, and the denial of claims were otherwise devoid of any factual basis for the denial, defendant is precluded from asserting lack of medical necessity as a defense to said claims (see A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 11th Jud Dists]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra). As a result, upon searching the record, we find that plaintiff is entitled to summary judgment on both of its claims and grant plaintiff’s motion for summary judgment in its entirety. The matter is remanded to the[*3]court below for a calculation of the statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum. [*4]

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

In this regard, I note my dissent in A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (10 Misc 3d 128[A], 2005 NY Slip Op 51902[U] [App Term, 2d & 1th Jud Dists]), and in further support of my argument, I cite 11 NYCRR 65-3.8 (b) (4) which states:

“If the specific reason for a denial of a no-fault claim…is a…peer review report…the insurer shall release a copy of that report…upon the written request of any of these parties.” (emphasis added)

To hold as the majority does, in my opinion, would usurp the role of the Legislature. It would require defendant to produce the peer review report within 30 days despite the fact that the regulations do not require that the report be produced at all, unless requested in writing by the plaintiff, a burden the rules did not impose upon the defendant.
Decision Date: July 19, 2006

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: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider made its prima facie case because, although its affidavit did not prove mailing of the claim forms, the insurer's denial forms established that the claims were sent and received.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.

Proof of mailing

Open the full map

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 provider's deficient mailing affidavit was cured by the insurer's denial forms showing receipt of the claims; also found the insurer proved timely mailing of its denials, which did not avoid preclusion.

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

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.

Cited in this decision

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
Careplus Med. Supply Inc. v State-Wide Ins. Co. (2005 NY Slip Op 25545) FollowedThe insurer's completed denial form established receipt of the provider's claims and showed that the denial was untimely.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032) FollowedAn insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
D.A.V. Chiropractic P.C. v American Tr. Ins. Co. (2005 NYSlipOp 50609(U)) FollowedAn insurer's timely denial and admissible proof of a reasonable pre-claim IME nonappearance rebut the presumption of medical necessity.
Gribenko v Allstate Ins. Co. (2005 NYSlipOp 52201(U)) Contrasted (cf., but see)The providers failed to establish submission of their claims because their affidavits did not adequately prove mailing.
Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co. (2005 NY Slip Op 50254(U)) Contrasted (cf., but see)The insurer's conclusory office-practice affidavit failed to prove timely mailing of verification requests.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U)) FollowedA sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.

Cited by

AR Med. Rehabilitation v State-Wide Ins. Co. (2015 NY Slip Op 25287)A provider may use the insurer's NF-10 denial as an admission of claim receipt without a business-record foundation.
Andrew Carothers, M.D., P.C. v Progressive Ins. Co. (2006 NY Slip Op 52479(U))The insurer failed to prove verification mailing or a proper denial, precluding its medical-necessity defense at trial.

Similar decisions

A.M. Med. Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51426(U))The insurer's conclusory medical-necessity denials were ineffective, but policy-limit exhaustion remained a factual issue.
A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.
SZ Med. P.C. v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51428(U))The insurer's timely denial lacked a factual basis or medical rationale, precluding its medical-necessity defense.
A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
SZ Med. P.C. v Country-Wide Ins. Co. (2006 NY Slip Op 26194)An insurer waives the 45-day submission defense by omitting notice that reasonable justification can excuse a late claim.