Reported in New York Official Reports at USAA Gen. Indem. Co. v New York Chiropractic & Physical Therapy, PLLC (2018 NY Slip Op 28133)
| USAA Gen. Indem. Co. v New York Chiropractic & Physical Therapy, PLLC |
| 2018 NY Slip Op 28133 [60 Misc 3d 254] |
| May 1, 2018 |
| Grey, J. |
| Civil Court of the City of New York, Richmond County |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected through Wednesday, July 11, 2018 |
[*1]
| USAA General Indemnity Co., Petitioner, v New York Chiropractic & Physical Therapy, PLLC, Respondent. |
Civil Court of the City of New York, Richmond County, May 1, 2018
McDonnell Adels & Klestzick, PLLC, Garden City, for petitioner.
Costella & Gordon, LLP, Garden City, for respondent.
USAA General Indemnity Company (hereinafter, petitioner) submitted this petition to vacate an arbitration award granted in favor of New York Chiropractic & Physical Therapy, PLLC (hereinafter, respondent) for first-party no-fault benefits assigned by Richard Toliver (hereinafter, assignor).
This matter is based on the provision of a lumbar-sacral orthosis (hereinafter, LSO) to assignor by respondent, for which respondent sought reimbursement from petitioner in the amount of $995. Petitioner denied the claim for lack of medical necessity, citing a peer review conducted by John Murphy, DC. Respondent then submitted a demand for arbitration. In response, petitioner submitted written contentions raising two defenses: (1) the services provided were not medically necessary, and (2) respondent failed to prove that the LSO was billed in accordance with the relevant fee schedule.
The matter was heard by Arbitrator John Kannengieser on February 7, 2017, and respondent called Anthony Palumbo, DC, the treating provider, as a witness to rebut Dr. Murphy’s peer review. Dr. Palumbo did not offer testimony with respect to petitioner’s fee schedule defense or the invoice cost of the LSO. Arbitrator Kannengieser found that respondent satisfied its burden of proving that the services were medically necessary,{**60 Misc 3d at 256} and that petitioner failed to preserve its fee schedule defense before trial. Arbitrator Kannengieser did take judicial notice of the relevant fee schedule, however, and awarded $806.64 to respondent rather than the full claim of $995.
Petitioner requested and received a review of the decision, and the award was upheld by [*2]Master Arbitrator Alfred J. Weiner on May 16, 2017. Petitioner now seeks vacatur of the award under article 75 of the CPLR.
No-fault insurance claims do not have their own fee schedules and health service providers are compensated under worker’s compensation codes (Insurance Law § 5108). The worker’s compensation fee schedule was incorporated by reference into the Insurance Department Regulations (see 11 NYCRR 68.1 [a]; LVOV Acupuncture, P.C. v GEICO Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51721[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Petitioner argued that respondent ran afoul of the fee schedule ground rules by failing to offer proof of the LSO’s cost from the supplier. General Ground Rule 3 of the New York Worker’s Compensation Chiropractic Fee Schedule states, “[t]he specific items provided must be identified. Payment shall not exceed the invoice cost of the item (s), applicable taxes, and any shipping and handling costs associated with delivery from the supplier of the item to the chiropractor’s office.”
Respondent contended that petitioner missed its opportunity to seek the invoice via a verification request before trial. The court disagrees. Prior to an amendment to the New York no-fault regulations on January 30, 2013[FN1] (hereinafter, the 2013 amendment), a line of cases maintained that an insurer’s fee schedule defense would be unavailable at trial if it was never preserved upon its denial of payment to the medical provider (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [1st Dept 2011]). The regulations now state:
“Proof of the fact and amount of loss sustained pursuant to Insurance Law section 5106(a) shall not be deemed supplied by an applicant to an insurer and no payment shall be due for such claimed medical{**60 Misc 3d at 257} services under any circumstances
. . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108(a) and (b) and the regulations promulgated thereunder for services rendered by medical providers” (11 NYCRR 65-3.8 [g] [1] [ii]).
[1] The court finds that the 2013 amendment has effectively put an end to the preclusion rule as supported by Mercury Cas. Co. v Encare, Inc. and its forebears, and petitioner was within its rights to raise a defense that respondent failed to adhere to the fee schedule ground rules.
Where an arbitrator has made an error of law, the court may not disturb the arbitrator’s decision (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]) save for very specific instances. An arbitration award can be vacated by the court where [*3]the rights of a party have been prejudiced by (i) corruption, fraud, or misconduct; (ii) partiality; or (iii) the arbitrator exceeded his/her power or so imperfectly executed it that a final and definite award was not made (CPLR 7511 [b] [1]). As the Court of Appeals illustrated in Matter of Kowaleski [New York State Dept. of Correctional Servs.], an arbitrator exceeds his/her power when an award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power (16 NY3d 85, 90 [2010], citing Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332 [2005]).
The arbitration award held that petitioner’s fee schedule defense was waived by failing to seek a copy of the invoice through a verification request, but made no mention of the 2013 amendment or how it should be applied to respondent’s claim. The question to be determined is whether upholding an arbitration award in contradiction to the 2013 amendment violates a strong public policy, and the court finds that it does.
In its impact statement on the 2013 Amendment, the Department of Financial Services explained: “[C]ourts have ruled that an insurer that fails to timely deny a claim is precluded from asserting as a defense the fact that the provider overbilled or fraudulently billed for services never rendered. As a result, consumers have their benefits unjustly reduced.”
And further,
“[i]n order to protect consumers from unjust depletion {**60 Misc 3d at 258}of benefits, the proposed amendment provides that proof of the fact and amount of loss sustained shall not be deemed to be received by an insurer when the applicant for benefits has billed in excess of the mandated fee schedule and/or for services not rendered. This provision will protect consumers from these fraudulent or abusive practices.”[FN2]
[2] Considering the amendment’s intent, its relative freshness, and how it is being applied by the courts to overcome the preclusion rule (Surgicare Surgical Assoc. v National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]; Allstate Ins. Co. v Health E. Ambulatory Surgical Ctr., 55 Misc 3d 1213[A], 2017 NY Slip Op 50574[U] [Sup Ct, NY County 2017]; Saddle Brook Surgicenter, LLC v All State Ins. Co., 48 Misc 3d 336 [Civ Ct, Bronx County 2015]; Tyorkin v Garrison Prop. & Cas. Ins. Co., 51 Misc 3d 1227[A], 2016 NY Slip Op 50846[U] [Civ Ct, Kings County 2016]), upholding this arbitration award in contradiction to the 2013 amendment would violate a strong public policy.
USAA General Indemnity Company’s petition seeking to vacate the master arbitration award dated May 16, 2017, is granted without prejudice.
Footnote 1:Fourth Amendment to Department of Financial Services Regulations (11 NYCRR) subpart 65-3 (Insurance Regulation 68-C) (Jan. 30, 2013).
Footnote 2:Revised Regulatory Impact Statement for the Fourth Amendment to Department of Financial Services Regulations (11 NYCRR) subpart 65-3 (Insurance Regulation 68-C) (Jan. 30, 2013).Acupuncture Approach, P.C. v USAA Gen. Indem. Co. (2018 NY Slip Op 50807(U))
Reported in New York Official Reports at Acupuncture Approach, P.C. v USAA Gen. Indem. Co. (2018 NY Slip Op 50807(U))
[*1]| Acupuncture Approach, P.C. v USAA Gen. Indem. Co. |
| 2018 NY Slip Op 50807(U) [59 Misc 3d 1231(A)] |
| Decided on April 24, 2018 |
| Civil Court Of The City Of New York, New York County |
| Rosado, J. |
| 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 April 24, 2018
Acupuncture
Approach, P.C. a/a/o ROSAURA DEJESUS, Plaintiff,
against USAA General Indemnity Company, Defendant. |
707640/12
Attorney for Plaintiff:
Gary Tsirelman, P.C. by Evan Polansky Esq.
Attorney for Defendant:
Peknic, Peknic & Schaeffer, LLC by Brian Peknic Esq.
Mary V. Rosado, J.
Defendant’s motion for summary judgment pursuant to New York Civil Practice Law and Rule 3212 (hereinafter “CPLR”) came before the court on February 28, 2018. In addition to oral arguments of counsel, the court considered the following submissions of the parties, pursuant to CPLR 2219(a):
Title/Number
Defendant’s Notice of Motion for Summary Judgment dated July 1, 2016; Defendant’s Affirmation in Support of Motion for Summary Judgment dated July 1, 2016 and Supporting Exhibits A-G 1-2
Plaintiff’s Affirmation in Opposition dated March 2, 2017 and Supporting Exhibit 1 3
Defendant’s Affirmation in Reply dated April 6, 2017 4
Upon the foregoing papers, the Decision and Order of the Court is as follows:
In this action by a provider to recover assigned first-party no-fault benefits for services enumerated in four invoices, Defendant USAA General Indemnity Company (hereinafter “Defendant”) moves for summary judgment alleging that it partially paid Plaintiff Acupuncture Approach, P.C. (hereinafter “Plaintiff”) but denied each invoice’s remaining balance because the services were billed in excess of the Worker’s Compensation Fee Schedule. Defendant presents an affidavit from Scott Southers, a claims adjuster for Defendant, who explains the calculations for each code and why some codes were reimbursed at a lower rate than what was originally [*2]billed. Defendant supplied the pertinent portions of the Worker’s Compensation Fee Schedule. Mr. Southers averred as to the mailing procedure and explained that Denial of Claims Forms and Explanation of Reimbursement Forms were not returned to AIS as ‘undeliverable” (see Southers Affidavit paragraph 21). Defendant further provided affidavits from Tammie Ulmer, the assistant vice president of bill review solutions at Auto Injury Solutions and Zach Trahan, a production manager for DMS Management, who were also involved in mailings processed in relation to this matter.
In opposition, Plaintiff alleges that Defendant has not presented an expert affidavit to support the applicable fee calculations. Further, Plaintiff calls into question Mr. Southers’ affidavit which states that the Defendant used the Ingenix database to calculate their numbers. Plaintiff asserts that the New York State Attorney General called for health insurers to discontinue the use of Ingenix database because it distorted reimbursement and resulted in lower out-of-network payments. In support of his allegations, Plaintiff provided a copy of testimony taken before the New York State Assembly Committee regarding the budget for the fiscal year 2014-2015. Plaintiff, however did not cite to or provide any case law to support his argument. Plaintiff also claims that Mr. Southers’ affidavit admits that important documentation was not delivered to Plaintiff.
It is well settled that, in order to succeed on a motion for summary judgment, a movant must establish his claim or defense sufficiently to warrant the court, as a matter of law, to direct judgment in his favor (CPLR 3212[b]), and he must do so by tender of evidentiary proof in admissible form (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The burden then shifts to the non-moving party to produce evidence in admissible form to demonstrate, based on affirmative proof, the existence of a disputed material issue of fact sufficient to require a trial (see SRM Card Shop, Inc. v 1740 Broadway Assocs., L.P., 2 AD3d 136, 139-140 [App Div 1st Dept 2003]; CPLR 3212[b]).
Defendant may establish that the fees charged exceeded relevant rates set forth in a fee schedule without an expert affidavit (see Natural Acupuncture Health, P.C. v Praetorian Insurance Company, 30 Misc 3d 132[A][App Term 1stt Dept 2011]). Such calculations can be presented through an affidavit from a claims examiner and by providing relevant excepts for the Worker’s Compensation Medical Fee Schedule (id.). Therefore, in this matter, Defendant presentation of the affidavit from the claims adjuster Mr. Southers may be sufficient to explain Defendant’s calculation, and the basis for their partial payment. Further, Plaintiff failed to provide an affidavit supporting Plaintiff’s calculations in the invoices.
Plaintiff’s argument that the fee schedule presented by Defendant has been largely discredited also fails to defeat Defendant’s motion because the New York State Worker’s Compensation Board 2010 Official Medical Fee Schedule is published and distributed by Ingenix, and Plaintiff has provided no legal authority for their assertion that the portions of the fee schedule presented are not correct.
However, Plaintiff successfully calls into question Defendant’s submission of proof that relevant documentation was properly and timely mailed to Plaintiff. Mr. Southers’ Affidavit asserts that documentation was returned to Defendant as “undeliverable” (see Aff of Southers at 20). This statement is inconsistent with other statements in the affidavit. Defendant did not supply a corrected or amended affidavit. In addition, although Defendant claims Plaintiff admitted that they received all the denials by attaching them to their discovery responses, Defendant failed to provide a copy of Plaintiff’s discovery responses in Exhibit 1 to their reply [*3]papers as promised in the Affirmation. Therefore, Plaintiff has shown that there is an issue of fact as to whether the denial documentation and forms providing an explanation of the payments were properly and timely mailed.
Based upon the foregoing, Defendant’s motion for summary judgment is denied.
This constitutes the Decision and Order of the Court.
Dated: April 24, 2018
New York, New York
Mary V. Rosado, J.C.C.Healing Art Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50583(U))
Reported in New York Official Reports at Healing Art Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50583(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
21st Century Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Louis Desorbo of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Argyria A.N. Kehagias 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 October 16, 2015. The order denied plaintiff’s motion for summary judgment.
ORDERED that the order is affirmed, without costs, and, upon a search of the record, defendant is awarded reverse summary judgment dismissing the complaint.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant did not oppose the motion with an affidavit or an attorney’s affirmation, but presented the Civil Court with orders of the Supreme Court, Nassau County, in a declaratory judgment action which had been commenced by defendant herein. The Supreme Court orders, respectively, granted defendant’s motion for summary judgment against plaintiff herein and granted defendant’s separate motion for a default judgment against plaintiff’s assignor. The Supreme Court order granting defendant’s motion for summary judgment held that defendant had established its founded belief that there was no coverage for no-fault benefits arising out of the accident at issue because the collision had been a staged incident. Thereafter, based upon the orders in the Supreme Court declaratory judgment action, the Civil Court, by order entered October 16, 2015, denied plaintiff’s motion for summary judgment, finding that defendant has no duty to provide coverage for the accident at issue. Plaintiff appeals from the October 16, 2015 order of the Civil Court. A judgment was subsequently entered in the Supreme Court pursuant to the aforementioned order of that court granting defendant’s motion for summary judgment. The judgment declared, among other things, that the insurance policy that had been issued to plaintiff herein’s assignor was null and void, and that defendant herein has no duty to provide coverage for any claim for no-fault benefits made in connection with the loss in question.
While defendant did not proffer in the Civil Court an affirmation of its counsel or an affidavit in opposition to plaintiff’s motion, and defendant did not annex the Supreme Court orders as exhibits to any opposition papers, a court “may in general take judicial notice of matters [*2]of public record” (Headley v New York City Tr. Auth., 100 AD3d 700, 701 [2012]; see Matter of Oak Tree Realty Co., LLC v Board of Assessors, 71 AD3d 1027 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]; Matter of Khatibi v Weill, 8 AD3d 485 [2004]; Brandes Meat Corp. v Cromer, 146 AD2d 666, 667 [1989]).
Consequently, in light of the Supreme Court’s orders and declaratory judgment, of which we take judicial notice, we find that the Civil Court properly denied plaintiff’s motion for summary judgment under the doctrines of res judicata and collateral estoppel (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1, 3 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]), as any judgment in favor of plaintiff in the present action would destroy or impair rights or interests established by the judgment in the declaratory judgment action (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; Flushing Traditional Acupuncture, P.C. v Kemper Ins. Co., 42 Misc 3d 133[A], 2014 NY Slip Op 50052[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]), and, upon a search of the record, we find that defendant established its entitlement to judgment as a matter of law. In view of the foregoing, we reach no other issue.
Accordingly, the Civil Court’s order is affirmed and, upon a search of the record, defendant is awarded reverse summary judgment dismissing the complaint.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018
Reported in New York Official Reports at TAM Med. Supply Corp. v Country Wide Ins. Co. (2018 NY Slip Op 50578(U))
| TAM Med. Supply Corp. v Country Wide Ins. Co. |
| 2018 NY Slip Op 50578(U) [59 Misc 3d 138(A)] |
| Decided on April 13, 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 April 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-1087 Q C NO.
against
Country Wide Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Louis Desorbo of counsel), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 29, 2016. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor was not a member of the policyholder’s household. By order entered March 29, 2016, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
The affidavit of defendant’s no-fault litigation supervisor was conclusory in nature and unsupported by competent evidence (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Although the accident occurred in Pennsylvania, the NF-2 form annexed to defendant’s cross motion states that plaintiff’s assignor resides in Bronx County. As a result, defendant’s cross motion for summary judgment should have been denied, because defendant failed to establish, as a matter of law, that plaintiff’s assignor is not an eligible injured person (see 11 NYCRR § 65-1.1 [d]). In view of the existence of a triable issue of fact as to whether the assignor was an eligible injured person who was entitled to reimbursement of first-party no-fault benefits (see id.), plaintiff’s motion for summary judgment was properly denied.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018
Reported in New York Official Reports at County Line Pharmacy v Geico Ins. Co. (2018 NY Slip Op 50574(U))
| County Line Pharmacy v Geico Ins. Co. |
| 2018 NY Slip Op 50574(U) [59 Misc 3d 138(A)] |
| Decided on April 13, 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 April 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2015-56 Q C NO.
against
Geico Insurance Company, Appellant.
Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Lewin & Baglio, LLP (Brendan Kearns of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered October 29, 2014. The order, insofar as appealed from, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for medical supplies provided to plaintiff’s assignor on January 6, 2011 and March 15, 2011.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for medical supplies provided to plaintiff’s assignor on January 6, 2011 and March 15, 2011 are granted.
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 branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for medical supplies provided to plaintiff’s assignor on January 6, 2011 and March 15, 2011. The Civil Court found that an issue of fact exists as to the medical necessity of the supplies at issue.
For the reasons stated in County Line Pharmacy as Assignee of Earline Vaughns v GEICO Ins. Co. (___ Misc 3d ___, 2018 NY Slip Op _____ [appeal No. 2015-53 Q C], decided herewith), the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for medical supplies provided to plaintiff’s assignor on January 6, 2011 and March 15, 2011 are granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018
Reported in New York Official Reports at County Line Pharmacy v Geico Ins. Co. (2018 NY Slip Op 50573(U))
| County Line Pharmacy v Geico Ins. Co. |
| 2018 NY Slip Op 50573(U) [59 Misc 3d 138(A)] |
| Decided on April 13, 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 April 13, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2015-53 Q C NO.
against
GEICO Insurance Company, Appellant.
Law Office of Printz & Goldstein (Lawrence J. Chanice of counsel), for appellant. Lewin & Baglio, LLP (Brendan Kearns of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered October 29, 2014. The order, insofar as appealed from, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for prescription drugs provided to plaintiff’s assignor on December 1, 2010 and December 30, 2010.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for prescription drugs provided to plaintiff’s assignor on December 1, 2010 and December 30, 2010 are granted.
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 branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for prescription drugs provided to plaintiff’s assignor on December 1, 2010 and December 30, 2010. The Civil Court found that an issue of fact exists as to the medical necessity of the prescription drugs at issue.
In support of its cross motion, defendant submitted an orthopedist’s affirmed report of an independent medical examination which he had performed on plaintiff’s assignor. The report set forth a factual basis and medical rationale for the orthopedist’s determination that the assignor’s injuries had resolved and that there was a lack of medical necessity for the prescription drugs at issue. Plaintiff failed to oppose defendant’s cross motion. Consequently, defendant’s prima facie showing of lack of medical necessity was not rebutted by plaintiff.
Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for prescription drugs provided to plaintiff’s assignor on December 1, 2010 and December 30, 2010 are granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018
Reported in New York Official Reports at Goldstar Equip., Inc. v Mercury Cas. Co. (2018 NY Slip Op 50576(U))
[*1]| Goldstar Equip., Inc. v Mercury Cas. Co. |
| 2018 NY Slip Op 50576(U) [59 Misc 3d 138(A)] |
| Decided on April 13, 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 April 13, 2018
PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, BERNICE D. SIEGAL, JJ
2016-88 K C NO.
against
Mercury Casualty Co., Respondent.
Gary Tsirelman, P.C. (Irena Golodkeyer and Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro and Matthew Smith of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Montelione, J.), entered September 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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff’s assignor had failed to comply with a condition precedent to coverage, in that the assignor had failed to appear for duly scheduled examinations under oath (EUOs).
Contrary to plaintiff’s assertion, defendant established that the EUO scheduling letters and the denial of the claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; 11 NYCRR 65-3.5 [b]; 65-3.8 [l]). The affirmation of defendant’s attorney, who had been present at the court reporting office to conduct the EUO of the assignor on the scheduled dates, was sufficient to establish that the assignor had failed to appear. To the extent that plaintiff asserts that defendant did not demonstrate that the assignor’s failure to appear was willful, we note that defendant established that defendant complied with the regulations (11 NYCRR part 65), and that there is no requirement to establish willfulness (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [2011]; Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 49 Misc 3d 130[A], 2015 NY Slip Op 51419[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; see also Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]).
Accordingly, the order is affirmed.
ELLIOT, J.P., PESCE and SIEGAL, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 13, 2018Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))
Reported in New York Official Reports at Active Care Med. Supply Corp. v Amica Mut. Ins. Co. (2018 NY Slip Op 50500(U))
| Active Care Med. Supply Corp. v Amica Mut. Ins. Co. |
| 2018 NY Slip Op 50500(U) [59 Misc 3d 135(A)] |
| Decided on April 6, 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. |
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2016-955 K C
Active Care Medical Supply Corp., as Assignee of Tyrone, David, Respondent,
against
Amica Mutual Ins. Co., Appellant.
Lawrence N. Rogak, LLC (Lawrence N. Rogak of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell and Karina Barska 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 August 12, 2015, deemed from a judgment of that court entered January 13, 2016 (see CPLR 5512 [a]). The judgment, entered pursuant to the August 12, 2015 order denying defendant’s motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,819.12.
ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 12, 2015 as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s action is barred by the doctrine of res judicata, and plaintiff cross-moved for summary judgment. By order entered August 12, 2015, the Civil Court denied defendant’s motion and granted plaintiff’s cross motion. Defendant’s appeal from the order entered August 12, 2015 is deemed to be from the judgment entered pursuant thereto on January 13, 2016 (see CPLR 5512 [a]).
While defendant failed to include res judicata as an affirmative defense in its answer or [*2]move to dismiss the complaint on that ground pursuant to CPLR 3211 (a) (5) prior to serving its answer, defendant moved for summary judgment dismissing the complaint on the ground of res judicata based upon orders in a declaratory judgment action in the Supreme Court, Kings County. We note that “an unpleaded defense may serve as the basis for granting summary judgment in the absence of surprise or prejudice to the opposing party” (Sullivan v American Airlines, Inc., 80 AD3d 600, 602 [2011]). Plaintiff’s papers in the Civil Court failed to allege any prejudice (see Barrett v Kasco Constr. Co., 84 AD2d 555, 556 [1981], affd 56 NY2d 830 [1982]; J.K.M. Med. Care, P.C. v Liberty Mut. Fire Ins. Co., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016])or surprise (see CPLR 3018 [b]; Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; J.K.M. Med. Care, P.C., 52 Misc 3d 137[A], 2016 NY Slip Op 51071[U]; Renelique v State-Wide Ins. Co., 50 Misc 3d 137[A], 2016 NY Slip Op 50096[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
“Under the doctrine of res judicata, a final adjudication of a claim on the merits precludes relitigation of that claim and all claims arising out of the same transaction or series of transactions by a party or those in privity with a party” (Ciraldo v JP Morgan Chase Bank, N.A., 140 AD3d 912, 913-914 [2016]). However, plaintiff herein was neither named nor served in the Supreme Court declaratory judgment action. Moreover, plaintiff was not in privity with the injured party, as the assignment of benefits had been executed before defendant commenced the declaratory judgment action. Thus, plaintiff had no full and fair opportunity to defend its interests in that action (see J.K.M. Med. Care, P.C. v Ameriprise Ins. Co., 54 Misc 3d 54 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Magic Recovery Med. & Surgical Supply Inc. v State Farm Mut. Auto. Ins. Co., 27 Misc 3d 67 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant failed to demonstrate its entitlement to summary judgment dismissing the complaint based on res judicata.
With respect to plaintiff’s cross motion for summary judgment, although the affidavit of plaintiff’s employee, who stated that he had personally mailed the claim form to defendant, was sufficient to give rise to a presumption that the claim had been received by defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]), defendant rebutted the presumption of receipt with an affidavit by its claims representative, who described defendant’s procedures for receiving mail and stated that defendant had not received the bill at issue. Consequently, as defendant raised a triable issue of fact in opposition to plaintiff’s cross motion, the Civil Court should have denied plaintiff’s cross motion.
Accordingly, the judgment is reversed, so much of the order as granted plaintiff’s cross motion for summary judgment is vacated, and plaintiff’s cross motion for summary judgment is denied.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018
Reported in New York Official Reports at SZ Med., P.C. v Allstate Ins. Co. (2018 NY Slip Op 50497(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Allstate Insurance Company, Respondent.
Amos Weinberg, Esq., for appellant. Bruno, Gerbino & Soriano, LLP (Nathan Shapiro of counsel), for respondent (no brief filed).
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered April 3, 2014. The order denied plaintiff’s motion to vacate an oral order of that court issued July 31, 2013 dismissing the action based on plaintiff’s failure to proceed at trial.
ORDERED that the order entered April 3, 2014 is affirmed, without costs.
This action by a provider to recover assigned first-party no-fault benefits was commenced in 2002. In 2013, the case was scheduled for trial for the first time. On July 31, 2013, plaintiff’s counsel appeared only to seek an adjournment. Plaintiff concedes that it had no witness and was not ready to proceed. The court denied plaintiff’s request for an adjournment and dismissed the action pursuant to Uniform Rules for the New York City Civil Court (22 NYCRR) § 208.14 (b) (2). About seven months later, plaintiff moved to vacate that dismissal, which motion was denied by order entered April 3, 2014, from which plaintiff appeals.
Where an action has been dismissed because of a default by a plaintiff, to vacate the dismissal “it [is] incumbent upon [the] plaintiff to demonstrate a reasonable excuse for the default and a meritorious cause of action” (V.S. Med. Servs., P.C. v Travelers Ins. Co., 24 Misc [*2]3d 32, 34 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; see CPLR 5015 [a]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]). Plaintiff failed to sustain that burden here. Plaintiff has not demonstrated that the Civil Court’s denial of plaintiff’s request for an adjournment was an abuse of discretion (see Nieves v Tomonska, 306 AD2d 332 [2003]). Plaintiff did not show why it could not have been prepared to proceed on the day set for the trial of the then 11-year-old case, or why it had not attempted to obtain an adjournment in advance, or any other extenuating circumstances. Plaintiff also did not explain why it had waited seven months to move to vacate its default. In any event, plaintiff has not demonstrated that it has a meritorious cause of action.
Accordingly, the order entered April 3, 2014 is affirmed.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: April 06, 2018
Reported in New York Official Reports at Maidstone Ins. Co. v Medical Records Retrieval, Inc. (2018 NY Slip Op 50556(U))
Maidstone Insurance
Co., Petitioner,
against Medical Records Retrieval, Inc., D/B/A Kamara Medical Supplies, as Assignee of Sandra Pereira, Respondent. |
27526/2017E
Counsel for Petitioner: Jason Tenenbaum, Esq.
Mary Ann Brigantti, J.
The following papers numbered 1 to _2_ Read on this motion, VACATE ARBITRATION AWARD Noticed on September 14, 2017 and duly submitted on the Motion Calendar of September 14, 2017:
PAPERS NUMBERED
Notice of Motion- Exhibits and Affidavits Annexed 1,2
Upon the foregoing papers, the petitioner Maidstone Insurance Company (“Petitioner”) seeks an order (1) pursuant to CPLR 7511, vacating the award of the master arbitrator that affirmed an award of the lower arbitrator finding that the respondent Medical Records Retrieval Inc., d/b/a Kamara Medical Supplies, a/a/o Sandra Pereira (“Respondent”) was entitled to compensation for services performed (a) from March 12, 2016 through April 22, 2016, in the sum of $3,750.00; (b) from March 12, 2016 until April 1, 2016, in the sum of $1,323.00; and (c) from March 12, 2016 in the sum of $19.50 and $34.22, and entering judgment in favor of Petitioner vacating the award, and remanding the matter to a different arbitrator to compute the amount due and owing under the Medicaid fee schedule, which would be 1/6 times the wholesale price of the CPM and CTU, divided by 30, times the amount of days the items were rented, or $1031.27; (2) such other and further relief as this Court may deem just, proper, and equitable, and (3) costs and disbursements as taxed by the clerk, including Petitioner’s $325 master arbitration fee. The petition is unopposed.
In cases of compulsory arbitration, judicial review of a master arbitrator’s award is restricted to the grounds set forth in Article 75 of the CPLR (see Matter of Petrofsky, 54 NY2d [*2]207, 210-11 [1981]). The “governing consideration is ‘whether the decision was rational or had a plausible basis'” (Curley v. State Farm Ins. Co., 269 AD2d 240, 242 [1st Dept. 2000], citing Petrofsky at 211). “Vacatur of an arbitrator’s award is statutorily limited to occasions involving fraud, corruption or bias… or occasions where the arbitrator exceeded his or her power, or so imperfectly executed it so that a final and definite award was not made” (id., citing CPLR 7511[b]; Lopez 375 v. New York City Health and Hospitals Corp., 257 AD2d 530 [1st Dept. 1999]). The party seeking vacatur must prove that the award was irrational, in violation of public policy, or in excess of the arbitrator’s powers (id., citing In re Travelers Insurance Company v. Job, 239 AD2d 289 [1st Dept. 1997]). Furthermore, “‘an arbitrator’s award will not be set side even though the arbitrator misconstrues or disregards [the proof] or misapplies substantive rules of law, unless it violates strong public policy or is totally irrational'” (id., quoting Sims v. Siegelson, 246 AD2d 374, 376 [1st Dept. 1998]). While an arbitration award may be deemed arbitrary and capricious where it does not follow “clear precedent,” (Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432, [1st Dept. 2000]), vacatur should not be granted if the decision had a reasonable hypothesis and the controlling issue is “unsettled and subject to conflicting court decisions” (see Motor Vehicle Accident Indemnification Corp. v. Aetna Casualty and Surety Co., 89 NY2d 214, 224 [1996]).
In this matter, although the petition is unopposed, it must be denied because Petitioner has failed to carry its initial burden of demonstrating that vacatur of the arbitration awards is warranted. Petitioner received billing for a CPM knee machine (Code E0935) in the sum of $3,570.00, representing 42 days of usage (March 12, 2016 – April 22, 2016), at the billed rate of $85.00 per day, and billing for a water circulating pump (Code E0236) in the sum of $1,323.00, representing 21 days of usage (March 12, 2016 – April 1, 2016), billed at a rate of $125.00 per day. Petitioner was billed for other services as well, but it only disputes the billing rate for the aforementioned two items. Petitioner asserted that this billing was in excess of the applicable fee schedule. At the arbitration hearing, and in the instant petition, Petitioner argued that the applicable fee schedule for the above-referenced durable medical equipment (DME) is limited to 1/6th of the acquisition cost of the equipment on a monthly basis. In support of this position, Petitioner relied primarily on what it characterizes are “opinion letters” from the New York State Department of Health (“DOH”) and the Workers’ Compensation Board (“WCB”), as well as a 2016 Queens County Supreme Court decision. Petitioner also submits “frequently asked questions” the were published on the WCB website which states that the reimbursement rate of CPM (E0935) rental shall not exceed the amount specified in the Durable Medical Equipment Manual – Policy Guidelines – see section on “Rental of Durable Medical Equipment.” Those policy guidelines state – “for DME items that have been assigned a Maximum Reimbursement Amount (MRA), the rental fee is 10%[FN1] of the listed MRA. For DME items that do not have a MRA, the rental fee is calculated at 10% of the equipment provider’s acquisition cost.” Petitioner argued that its documentation established that where, as here, the DME items have not been assigned a Maximum Reimbursement Amount (“MRA”), the rental fee is calculated at 1/6th of the equipment provider’s acquisition cost.
The lower arbitrator considered these arguments, and specifically found that the DME at issue – the CPM and the CTU – were not listed in the Medicaid DME fee schedule, and no specific amount had been set by the DOH for the monthly rental of those items. While the arbitrator understood the calculations made by Petitioners’ professional coder, he noted that coder’s methodology was flawed because the DOH had indicated in a letter dated June 8, 2016, that according to 12 NYCRR section 442.2(g), the Medicaid Policy Guidelines and Medical Policy Manual are not to be included in the Medicaid DME fee schedule except to the extent that such documents contain the Medicaid DME fee schedule. The lower arbitrator thus rejected Petitioner’s fee schedule defense, and found that the billing was proper in accordance with 12 NYCRR 442.2. The master arbitrator affirmed these findings, holding that the arbitration interpretation of the evidence and applicable law pertaining to this fee schedule dispute was not arbitrary, capricious, or contrary to law.
After review of the instant petition, this Court finds that the arbitration awards were supported by a rational and plausible basis and were not contrary to clear precedent. 12 NYCRR 442.2(b) provides that “[t]he maximum permissible monthly charge for such equipment, supplies and services provided on a rental basis shall not exceed the lower of the monthly rental charge to the general public or the price determined by the New York State Department of Health area office. The total accumulated monthly rental charges shall not exceed the fee amount allowed under the Medicaid fee schedule” (emphasis added). Petitioner’s submissions fail to establish that the New York DOH area office has set or determined a price for the DME at issue. The June 8, 2016 letter from the DOH senior attorney established that the earlier July 2014 letter was clearly not an instance where DOH made such a determination. Furthermore, the correspondence from the WCB employee did not constitute an official “interpretation of a regulation” or an “informal opinion” of the agency’s regulations (compare Matter of Elcor Health Servs. v. Novello, 100 NY2d 273, 280 [2003]; A.M. Medical Services, P.C. v. Progressive Cas. Ins. Co., 101 AD3d 53, 64 [2nd Dept. 2012]). Contrary to Petitioners’ contentions, the arbitrator also had a rational basis for determining that the Medicaid policy guidelines are inapplicable to these facts (see 12 NYCRR 442.2[g]). Even if the Medicaid guidelines are applicable here, as noted in the WCB “FAQ,” they only state that the “1/6th” (10% as of July 1, 2016) calculation of rental fee applies where the DME items “do not have a MRA.” It is rational to conclude that this calculation only applies to DME items that are listed in the fee schedule but are not assigned a MRA value. Where, as here, the DME items are not listed at all on the Medicaid fee schedule, the Department of Health has not determined a monthly rental charge. Under these circumstances, the applicable monthly rental charge will be the rate charged to the general public (12 NYCRR §442.2[b]). Petitioner argues that its contentions further the cost containment policies behind the no-fault system, however, engaging in such an analysis goes beyond the narrow issue that is before this Court (see Curley v. State Farm Ins. Co., 269 AD2d 240, 242).
Accordingly, it is hereby
ORDERED, that the petition is denied, and the Master Arbitration Award is confirmed (CPLR 7511[e]).
This constitutes the Decision and Order of this Court.
Dated: April 4, 2018
Hon. Mary Ann Brigantti, J.S.C.
Footnotes
Footnote 1:According to Petitioners’ professional coder, the Medicaid Policy Guidelines changed the reimbursement formula from 1/6th to 10% of the acquisition cost on July 1, 2016.