September 20, 2005

Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))

https://www.beynensonlaw.com/case-law/careplus-med-supply-inc-v-allstate-ins-co-2005-nyslipop-51525u/

Court: Appellate Term, Second Department
Decided: September 20, 2005
Citation: 2005 NY Slip Op 51525(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Fee schedule Provider's prima facie case Assignments and standing
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Careplus Med. Supply Inc. v Allstate Ins. Co., 2005 NY Slip Op 51525(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

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 former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates. The Appellate Term, Second Department, reversed and granted the provider summary judgment, remanding for interest and attorney fees under Insurance Law § 5106 (a). Reductions based on geographic prevailing rates were improper under 11 NYCRR Appendix 17-C, part E (b) (1). Claim forms established policy coverage prima facie, without contrary insurer proof. Assignment objections were waived because the insurer neither sought verification nor specified deficiencies in its denials. The billing manager's affidavit established a foundation under CPLR 4518 (a) for records proving delivery, despite the manager's lack of personal involvement in or observation of delivery.

Reported in New York Official Reports at Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))

[*1]

Careplus Med. Supply Inc. v Allstate Ins. Co.

2005 NYSlipOp 51525(U)

Decided on September 20, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PATTERSON, J.P., RIOS and BELEN, JJ.
2004-1599 K C

Careplus Medical Supply Inc. a/a/o Sergey Rhaymovich Josefina G. Esquerra Jose Garces Henry Amaro-Perez Oscar Duque Elpidio Pena, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered October 8, 2004. The order denied plaintiff’s motion for summary judgment.

Order unanimously reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

In this action to recover first-party no-fault benefits for medical equipment furnished to its assignors, plaintiff established its entitlement to summary judgment by its proof that it submitted the functional equivalent of the statutory claim forms (11 NYCRR 65-3.5 [a], [f]), 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]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]). Defendant’s claim that plaintiff failed to prove that its assignors are covered by a policy issued by defendant is without merit as plaintiff’s claim forms established the matter prima facie and defendant offered no proof to the contrary. The burden then shifted to [*2]defendant to raise a triable issue of material fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In our view, defendant failed to establish any basis for the motion’s denial.

Defendant based its partial denials of the claims on the improper ground that the sums sought for the items of medical equipment exceeded an alleged average of suppliers’ prevailing rates in plaintiff’s geographic location. The insurance regulations governing medical equipment and supplies applicable to the instant action limit a provider’s recovery of medical equipment benefits to 150 percent of cost (11 NYCRR Appendix 17-C, part E [b] [1]). This “applicable fee schedule” constitutes the only
limitation on recovery and a defendant’s denial of benefits on the ground that the fees sought exceeded prevailing rates for such equipment in the provider’s geographical location has been rejected as without merit (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [App Term, 2d & 11th Jud Dists 2004]; King’s Med. Supply v Allstate Ins. Co., 2 Misc 3d 127[A], 2003 NY Slip Op 51681[U] [App Term, 9th & 10th Jud Dists]). It is noted that pursuant to the revised Insurance Department regulations regarding durable medical equipment and supplies, effective October 6, 2004 (see Circular Letter No. 8 [2004]; 11 NYCRR Appendix 17-C, part F, eff. October 6, 2004), the current fee schedule for medical equipment sets forth, as an alternative to the 150 percent limit, whichever is less, the “usual and customary price charged to the general public” (11 NYCRR Appendix 17-C, part F [a] [2]).

As to the defense based on defective assignments, defendant’s failure to seek verification of the assignments or to allege any deficiency in the assignments in its claim denial forms “constitutes a waiver of any defenses with respect [to them]” (Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp., 7 Misc 3d 137[A], 2005 NY Slip Op 50790[U] [App Term, 2d & 11th Jud Dists]; see also New York Hosp. Med. Ctr. of
Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Capio Med., P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 129[A], 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]). Defendant’s further claim that plaintiff cannot establish a prima facie case for the delivery of equipment to the assignors because its manager-affiant did not personally supply the equipment or witness the equipments’ “turnover” is also without merit. The affidavit of plaintiff’s officer and billing manager sufficiently “[s]et forth [his] duties so as to support the conclusion that the attached exhibits were sufficiently accurate and trustworthy to merit their admission into evidence pursuant to the business record exception to the hearsay rule (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]), and said exhibits established that the supplies were furnished to the assignor” (King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]; see also Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 141[A], 2004 NY Slip Op 51032[U] [App Term, 9th & 10th Jud Dists]).

We have considered the remaining defenses and find them to be similarly without merit (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, supra; Careplus Med. Supply Inc. v Travelers Home and Mar. Ins. Co., 7 Misc 3d 133[A], 2005 NY Slip Op 50648[U] [App Term, 2d & 11th Jud Dists]). [*3]

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: September 20, 2005

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

Held the supplier established prima facie entitlement by proof of claim forms and overdue payment, its claim forms prima facie showing coverage and its billing manager's affidavit laying a sufficient business-records foundation for delivery.

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

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.

Proving a fee schedule defense

Open the full map

Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Court finally rejected the fee schedule defense; provider recovers the disputed amount

Held the partial denials based on suppliers' prevailing geographic rates improper because the 150-percent-of-cost rule was the only applicable limit for medical equipment, and awarded the supplier the claims.

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

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 29 (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 Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 24119) FollowedAn insurer may not deny equipment fees as exceeding local prevailing rates when the applicable schedule limits reimbursement to 150% of cost.
King’S Med. Supply v Allstate Ins. Co. (2003 NY Slip Op 51681(U)) FollowedMedical equipment reimbursement is governed by the 150-percent-of-cost fee schedule rather than prevailing local rates.
Ocean Diagnostic Imaging P.C. v Travelers Prop. Cas. Corp. (2005 NY Slip Op 50790(U)) FollowedThe insurer's affidavits raised a factual issue whether the claimed injuries arose from an insured incident.
New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626)The insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U))The insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
King’s Med. Supply, Inc. v Hereford Ins. Co. (2004 NY Slip Op 24343) FollowedThe insurer's mailing affidavit raised a triable issue whether its denial was timely, defeating the provider's summary judgment motion.
Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 51032(U))The insurer's investigator raised a triable staged-collision coverage issue despite the provider's adequate billing proof.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co. (2005 NYSlipOp 50648(U))The insurer failed to establish verification tolling because requests were untimely or unproved and its policy's EUO endorsement was not shown.

Cited by

First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co. (2005 NY Slip Op 51815(U))The provider failed to establish its prima facie case because its employee's affidavit did not lay a business-record foundation.
New York Craniofacial Care, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50500(U))A provider seeking summary judgment on overdue claims must address whether those claims were timely and validly denied.

Similar decisions

Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U))The insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost.
S & M Supply Inc. v State-Wide Ins. Co. (2005 NYSlipOp 51046(U))A provider's billing manager need not have personal knowledge that prescribed equipment was delivered to establish a prima facie case.
King’S Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50280(U))The provider obtained partial summary judgment on claims denied after 30 days, but disputed equipment costs barred judgment on timely denied claims.
S&M Supply Inc. v Progressive Ins. Co. (2005 NYSlipOp 51312(U))The insurer's excessive-charge defenses failed because one denial was untimely and the other lacked admissible proof or a valid regulatory basis.
Careplus Med. Supply Inc. v General Assur. Co. (2005 NY Slip Op 50429(U))The insurer failed to prove mailing of preclaim IME notices to the assignors and was precluded from asserting nonattendance on one late-denied claim.