March 31, 2005

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-liberty-mut-ins-co-2005-nyslipop-50453u/

Court: Appellate Term, Second Department
Decided: March 31, 2005
Citation: 2005 NY Slip Op 50453(U)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity Provider's prima facie case
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 2005 NY Slip Op 50453(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.

An unsworn peer review report did not raise a triable issue against the acupuncture provider's prima facie showing. The provider established that it submitted claims stating the fact and amount of the loss and that payment was overdue under Insurance Law § 5106 (a). The insurer's opposing peer review report was inadmissible because it was unsworn. The Appellate Term, Second Department, reversed the order, insofar as appealed from by the acupuncture provider, granted its summary judgment motion, and remanded for statutory interest and attorney's fees. The other providers' appeals were dismissed because they raised no issue; the parties' remaining contentions were not reached.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NYSlipOp 50453(U))

[*1]

A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co.

2005 NYSlipOp 50453(U)

Decided on March 31, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 31, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-572 K C

A.B. MEDICAL SERVICES PLLC D.A.V. CHIROPRACTIC P.C. DANIEL KIM’S ACUPUNCTURE P.C. SQUARE SYNAGOGUE TRANSPORTATION INC. a/a/o Rema Adams, Appellants,
against
LIBERTY MUTUAL INSURANCE COMPANY, Respondent.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered on November 20, 2003, as denied the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C.

Order, insofar as appealed from by plaintiff Daniel Kim’s Acupuncture P.C., unanimously reversed without costs, motion by plaintiff Daniel Kim’s Acupuncture P.C. for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees. [*2]

Appeal by plaintiffs A.B. Medical Services PLLC, D.A.V. Chiropractic P.C. and Square Synagogue Transportation Inc. unanimously dismissed.

In this action, inter alia, to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff Daniel Kim’s Acupuncture P.C. established a prima facie entitlement to summary judgment by proof that it submitted the claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). The peer review report included by defendant in its opposition papers does not warrant denial of plaintiff’s motion for summary judgment, since said report was unsworn, and was therefore not in admissible form (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; A.B. Med. Servs. v N.Y. Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]; cf. CPLR 2106). In view of the foregoing determination, we need not address the parties’ remaining contentions.

Accordingly, summary judgment is granted in favor of plaintiff Daniel Kim’s Acupuncture P.C., and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 31, 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.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer's peer review report was unsworn and therefore not in admissible form, so it did not warrant denial of the provider's summary judgment motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

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

Held the provider established a prima facie case by proof that it submitted the claims stating the fact and amount of loss and that payment was overdue.

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, 513 (this one included) are in the same category.

Cited in this decision

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.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
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.
A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.

Similar decisions

A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2005 NYSlipOp 50650(U))The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition.
A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp. (2005 NY Slip Op 50088(U))MVAIC's 30-day period to pay or deny begins upon receipt of proof of claim, rather than after it qualifies an eligible insured.
A.B. Med. Servs. PLLC v Electric Ins. Co. (2005 NYSlipOp 50542(U))The assignor's selective IME attendance established receipt of all listed requests and raised a medical-necessity issue on the no-show denials.
A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
A.B. Med. Servs. PLLC v Encompass Ins. (2005 NY Slip Op 51892(U))Transportation benefits are nonassignable under the revised no-fault regulations for claims submitted on or after April 5, 2002.