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February 27, 2006

Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))

https://www.beynensonlaw.com/case-law/patil-v-countrywide-ins-co-2006-ny-slip-op-50306u/

Court
Appellate Term, Second Department
Decided
February 27, 2006
Citation
2006 NY Slip Op 50306(U) · 11 Misc 3d 130(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Later treatment
Followed in 1 later decision (see Cited by)
Issues
Provider's prima facie case Medical necessity
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Patil v Countrywide Ins. Co., 11 Misc 3d 130(A), 2006 NY Slip Op 50306(U) (App Term, 2d Dept, 9th & 10th 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 provider failed to establish admissibility of its claim forms through counsel's affirmation or its own affidavit. The Appellate Term, Second Department, affirmed denial of summary judgment with leave to renew on proper papers. Establishing a prima facie claim under Insurance Law § 5106 (a) required appending admissible claim forms. Counsel lacked personal knowledge, and the provider's affidavit made no specific reference to the forms. The court also agreed that a nurse's peer review may establish admissible medical opinions if the reviewer's training, observations and actual experience sufficiently demonstrate competence to render them. No other issue was reached.

Reported in New York Official Reports at Patil v Countrywide Ins. Co. (2006 NY Slip Op 50306(U))

[*1]
Patil v Countrywide Ins. Co.
2006 NY Slip Op 50306(U) [11 Misc 3d 130(A)]
Decided on February 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 27, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : RUDOLPH, P.J., ANGIOLILLO and McCABE, JJ
2005-229 N C.
Dr. Patil, M.D., as assignee of DANNY PHARBOO, Appellant,

against

Countrywide Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, First District (Howard S. Miller, J.), dated December 20, 2004. The order denied plaintiff’s motion for summary judgment with leave to renew upon submission of proper papers.

Order unanimously affirmed without costs.

In an action to recover first-party no-fault benefits, a plaintiff provider establishes a prima facie entitlement to summary judgment by proof of submission of statutory claim forms, setting forth the fact and 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]). Further, the necessary claim forms must be appended to plaintiff’s motion papers in order to establish a prima facie case (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 7 Misc 3d 127[A], 2005 NY Slip Op 50432[U] [App Term, 2d & 11th Jud Dists]).

In support of plaintiff’s motion, plaintiff’s attorney indicated that appended thereto were the subject claim forms being sued upon. Such affirmation by an attorney without personal knowledge does not constitute a proper vehicle for the admissibility of the claim forms (see Zuckerman v City of New York, 49 NY2d 557, 563 [1980]). Moreover, the affidavit of plaintiff [*2]provider made no specific reference to the appended claim forms. Under the circumstances, plaintiff’s motion for summary judgment was properly denied with leave to renew upon submission of proper papers.

We note that the court below correctly determined that a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions contained therein provided that the reviewer’s training, observations and
actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005]; Abraham v Country-Wide Ins. Co., 3 Misc 3d 130[A], 2004 NY Slip Op 50388[U] [App Term, 2d & 11th Jud Dists]).

In view of the determination herein, we reach no other issue.
Decision Date: February 27, 2006

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.

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: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)

Held the provider failed its prima facie case because the claim forms were offered only through an attorney's affirmation lacking personal knowledge and the provider's affidavit did not refer to them.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 81
  • Appellate TermApp Term 843
  • Trial courtsTrial 139
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 16 decisions (13 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 15 decisions (9 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 78 (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)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
  • A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2005 NYSlipOp 50432(U)) FollowedThe providers failed to establish prima facie entitlement to partial summary judgment because they omitted the necessary claim forms.
  • Abraham v Country-Wide Ins. Co. (2004 NY Slip Op 50388(U))The insurer's unsworn nurses' reviews failed to raise a triable issue of medical necessity because the reviewers' qualifications were not shown.

Cited by

A label shows how the later decision treated this one.

  • Contemporary Acupuncture P.C. v Travelers Ins. Co. (2006 NY Slip Op 51278(U)) FollowedThe provider failed to establish claim submission because it proved neither actual mailing nor a reliable office mailing practice.
  • Channel Chiropractic, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 01973)A nurse's peer review denying no-fault benefits for lack of medical necessity is not per se invalid.
  • AB Med. Servs., PLLC v Lancer Ins. Co. (2006 NY Slip Op 52241(U))The provider failed to establish prima facie entitlement to partial summary judgment because it omitted the claim forms from its moving papers.
  • New Horizon Surgical Ctr., L.L.C. v Allstate Ins. Co. (2016 NY Slip Op 51125(U))The insurer's unrebutted chiropractic expert testimony established that the MUA procedure and related facility fee lacked medical necessity.

Similar decisions

  • Impulse Chiropractic, P.C. v Countrywide Ins. (2007 NY Slip Op 52293(U))The provider failed to establish a prima facie case because its officer's affidavit did not lay a business-record foundation.
  • Preferred Med. Imaging, P.C. v Countrywide Ins. Co. (2007 NY Slip Op 50693(U))The provider failed to establish a business-records foundation for its claim forms and therefore failed to make a prima facie showing.
  • Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
  • A.B. Med. Servs. v Country-Wide Ins. Co. (2004 NY Slip Op 50535(U))The providers' billing affidavit failed to establish their prima facie case because it did not identify which provider employed the billing manager.
  • Capri Med., P.C. v New York Cent. Mut. Ins. Co. (2007 NY Slip Op 50536(U))The provider failed to prove submission of its claims because its officer's affidavit did not establish a business-records foundation.
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