Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50828(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50828(U) [59 Misc 3d 150(A)] |
| Decided on June 1, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2424 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. (2018 NY Slip Op 50827(U))
| Precious Acupuncture Care, P.C. v GEICO Gen. Ins. Co. |
| 2018 NY Slip Op 50827(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2383 K C
against
GEICO General Insurance Company, Appellant.
Law Office of Goldstein & Flecker (Lawrence J. Chanice of counsel), for appellant. Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 16, 2015. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing the fourth cause of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s cross motion which had sought summary judgment dismissing the fourth cause of action based upon a lack of medical necessity.
Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50825(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50825(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2369 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 15, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50824(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50824(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2368 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 15, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (__ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50822(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50822(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2280 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 9, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
For the reasons stated in Active Care Med. Supply Corp., as Assignee of Munoz, Lina M. v American Tr. Ins. Co. (— Misc 3d &mdash, 2018 NY Slip Op — [appeal No. 2015-2178 K C], decided herewith), the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Compas v Travelers Ins. Co. (2018 NY Slip Op 50821(U))
| Compas v Travelers Ins. Co. |
| 2018 NY Slip Op 50821(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2227 Q C
against
Travelers Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (William T. Angstreich of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 14, 2015. The order, insofar as appealed from as limited by the brief, granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by the brief, from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the second, fourth and fifth causes of action on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who had been present in his office to conduct plaintiff’s EUO on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the affidavits submitted by defendant established that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).
Accordingly, the order, insofar as appealed from, is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Active Care Med. Supply Corp. v American Tr. Ins. Co. (2018 NY Slip Op 50820(U))
| Active Care Med. Supply Corp. v American Tr. Ins. Co. |
| 2018 NY Slip Op 50820(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2178 K C
against
American Transit Ins. Co., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Daniel J. Tucker, Esq. (Daniel J. Tucker and Netanel BenChaim of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered June 3, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint
Contrary to plaintiff’s contentions on appeal, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Renelique Med. Servs., P.C. v Travelers Ins. Co. (2018 NY Slip Op 50817(U))
| Renelique Med. Servs., P.C. v Travelers Ins. Co. |
| 2018 NY Slip Op 50817(U) [59 Misc 3d 149(A)] |
| Decided on June 1, 2018 |
| 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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-1119 K C
against
Travelers Insurance Co., Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gregory W. Broido of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered January 21, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).
Accordingly, the order is affirmed.
PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018
Reported in New York Official Reports at Country-Wide Ins. Co. v TC Acupuncture, P.C. (2018 NY Slip Op 50786(U))
against
TC Acupuncture, P.C., a/a/o Jims Calixte, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o Debra Bond, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o Ernig Mejia, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
TC Acupuncture, P.C., a/a/o Johnny Sejour, Respondent-Appellant.
Country-Wide Ins. Co., Petitioner-Respondent,
against
New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.
Reported in New York Official Reports at Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co. (2018 NY Slip Op 03831)
| Matter of Fast Care Med. Diagnostics, PLLC/PV v Government Empls. Ins. Co. |
| 2018 NY Slip Op 03831 [161 AD3d 1149] |
| May 30, 2018 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| In the Matter of Fast Care Medical Diagnostics, PLLC/PV,
Respondent-Appellant, v Government Employees Ins. Co., Appellant-Respondent. |
Printz & Goldstein, Woodbury, NY (Lawrence J. Chanice of counsel), for appellant-respondent.
Israel Israel & Purdy, LLP, Great Neck, NY (Justin Skaferowsky and Jennifer Howard of counsel), for respondent-appellant.
In a proceeding pursuant to CPLR article 75, inter alia, to vacate an arbitration award, Government Employees Ins. Co. appeals, and the petitioner cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered August 7, 2015. The order, insofar as appealed from, granted that branch of the petition which was to vacate an arbitration award dated October 10, 2014, and a master arbitration award dated January 16, 2015, and referred the matter to the arbitrator for further proceedings. The order, insofar as cross-appealed from, denied the petitioner’s application for an award of an attorney’s fee.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the petitioner.
The petitioner, Fast Care Medical Diagnostics, PLLC, named herein as Fast Care Medical Diagnostics, PLLC/PV (hereinafter Fast Care), provided certain medical services to its assignor, “PV,” in connection with injuries purportedly sustained by PV in a motor vehicle accident. At the time of such treatment, PV was 15 years old. PV and his mother executed an assignment of benefits, which assigned all rights and remedies to payment for health care services provided by Fast Care to which PV was entitled under article 51 of the Insurance Law. Fast Care submitted claims for these services to Government Employees Insurance Co. (hereinafter GEICO), for reimbursement of first-party no-fault insurance benefits (see Insurance Law § 5102). GEICO denied the claims on grounds of purported lack of medical necessity.
Fast Care sought arbitration of the dispute. The arbitrator dismissed the proceeding without prejudice, on the ground that Fast Care had failed to comply with CPLR 1209, which provides, in relevant part, that “[a] controversy involving an infant . . . shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant,” subject to an exception that is not applicable here. Fast Care appealed to a master arbitrator, who confirmed the determination. The master arbitrator further found that Fast Care lacked [*2]standing, because the parent of the infant patient, rather than the infant himself, was required to execute an assignment of benefits. Fast Care then instituted this proceeding pursuant to CPLR article 75, inter alia, to vacate the arbitration award.
An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511 [b]). In addition, an arbitration award may be vacated “if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Slocum v Madariaga, 123 AD3d 1046, 1046 [2014]; see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90 [2010]; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79 [2003]). An arbitration award may also be vacated where it is in “ ’explicit conflict’ ” with established laws and “the ‘strong and well-defined policy considerations’ embodied therein” (Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, 882 [2013] [emphasis omitted], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999]).
We agree with the Supreme Court that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies “only where [an] infant [is] a party” to an arbitration proceeding (Goldenberg v Goldenberg, 25 AD2d 670, 670 [1966], affd 19 NY2d 759 [1967]; see Schneider v Schneider, 17 NY2d 123, 127 [1966]). The infant patient was not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought the arbitration (see 11 NYCRR 65-3.11 [a]). Therefore, we agree with the court that the arbitrator disregarded established law in determining that the requirements of CPLR 1209 applied here (Schneider v Schneider, 17 NY2d at 127; see Goldenberg v Goldenberg, 25 AD2d at 670). Furthermore, the master arbitrator’s determination that the assignment of benefits was not effective was not based on any requirement set forth in established law or regulations (see generally 11 NYCRR 65-2.4 [c]).
Accordingly, we agree with the Supreme Court’s determination to vacate the awards and direct further arbitration proceedings as to the merits of Fast Care’s claims (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d at 882; see also Matter of Local 342 v Town of Huntington, 52 AD3d 720, 721 [2008]; Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1020 [2007]; Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 454 [2003]).
Fast Care did not demonstrate its entitlement to an award of an attorney’s fee, as the arbitrator did not reach the issue of whether the subject claims were “overdue” (Insurance Law § 5106 [a]; see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Balkin, J.P., Chambers, Austin and LaSalle, JJ., concur. [Prior Case History: 2015 NY Slip Op 32714(U).]