February 19, 2010

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2010 NY Slip Op 50264(U))

https://www.beynensonlaw.com/case-law/a-m-med-servs-p-c-v-new-york-cent-mut-ins-2010-ny-slip-op50264u/

Court: Appellate Term, Second Department
Decided: February 19, 2010
Citation: 2010 NY Slip Op 50264(U) · 26 Misc 3d 140(A)
Posture: Other motion
Outcome: Insurer prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Interest and attorney fees

Cite as

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 26 Misc 3d 140(A), 2010 NY Slip Op 50264(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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.

Attorney's fees are calculated on the aggregate of all bills for each insured, subject to an $850 maximum under LMK Psychological Servs. The provider obtained summary judgment on four unpaid claims involving one insured. After initially limiting fees to $850, the Civil Court granted renewal based on the Appellate Division's LMK decision and allowed $1,745.47 calculated per claim. The Court of Appeals subsequently reversed that decision, accepting the Superintendent of Insurance's interpretation of a claim as the total medical expenses in a cause of action for a single insured. The Appellate Term, Second Department, modified the judgment, insofar as appealed from, to reduce fees to $850, vacated the contrary ruling upon renewal and granted the insurer's motion to reduce the proposed judgment.

Reported in New York Official Reports at A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2010 NY Slip Op 50264(U))

[*1]

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins.

2010 NY Slip Op 50264(U) [26 Misc 3d 140(A)]

Decided on February 19, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and STEINHARDT, JJ
2008-2182 Q C.

A.M. Medical Services, P.C., as assignee of TATYANA NESNOVA, Respondent,
against
New York Central Mutual Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered April 15, 2008, deemed from a judgment of the same court entered June 16, 2008 (see CPLR 5512 [a]). The judgment, insofar as appealed from as limited by the brief, entered pursuant to the April 15, 2008 order granting plaintiff’s motion for leave to renew defendant’s prior motion and, upon such renewal, denying defendant’s prior motion to modify plaintiff’s proposed judgment by reducing the award to plaintiff of attorney’s fees set forth in plaintiff’s proposed judgment, awarded plaintiff $1,745.47 in attorney’s fees.

ORDERED that the judgment, insofar as appealed from, is modified by reducing the award of attorney’s fees to plaintiff to the sum of $850; as so modified, the judgment is affirmed without costs, so much of the order entered April 15, 2008 as, upon renewal, denied defendant’s motion to reduce the proposed judgment is vacated and defendant’s motion is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff alleged five unpaid claims as its cause of action. The Civil Court granted plaintiff’s motion for summary judgment as to four of the claims. Following this court’s affirmance of the order (A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 13 Misc 3d 126[A], 2006 NY Slip Op 51662[U] [App Term, 2d & 11th Jud Dists 2006]), defendant moved to modify plaintiff’s proposed judgment to limit the award of attorney’s fees to the sum of $850, rather than the proposed total of $1,745.47 sought therein, which fee had been calculated on a per claim basis. The Civil Court granted defendant’s motion. Thereafter, in light of the opinion of the Appellate Division, Third Department, in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 AD3d 1290 [2007]), the Civil Court granted plaintiff’s motion for leave to renew defendant’s motion and, upon renewal, allowed the fees as previously proposed by plaintiff. Defendant appeals from that order. Plaintiff subsequently entered a judgment which included the award of $1,745.47 as attorney’s fees, from which judgment this appeal is deemed taken (CPLR 5512 [a]).

In LMK Psychological Servs., P.C. v State Farm Mut. Aut. Ins. Co. (12 NY3d 217, 222-223 [2009]), the Court of Appeals reversed the Appellate Division and accepted the opinion of [*2]the Superintendent of Insurance (Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]), which “interpreted a claim to be the total medical expenses claimed in a cause of action pertaining to a single insured, and not . . . each separate medical bill submitted by the provider.” As a result, the Court of Appeals held that attorney’s fees are to be calculated based “on the aggregate of all bills for each insured,” to a maximum of $850 (LMK Psychological Servs., P.C., 12 NY3d at 223).

Accordingly, as there is but one insured involved herein, the award of attorney’s fees to plaintiff is reduced to the sum of $850.

Pesce, P.J. Weston and Steinhardt, JJ., concur.
Decision Date: February 19, 2010

Cited in this decision

A label shows how this decision treated the case it cites.

A.M. Med. Servs., P.C. v New York Cent. Mut. Ins. (2006 NY Slip Op 51662(U))The insurer proved mailing of one medical necessity denial but failed to prove verification mailing for four other claims.
LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 10443)Attorney fees for no-fault claims are calculated per claim rather than per assignor under Insurance Law § 5106 (a).
LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2009 NY Slip Op 02481) FollowedNo-fault attorney fees are calculated on the aggregate bills for each insured, and an untimely denial does not defeat interest tolling.

Cited by

A label shows how the later decision treated this one.

Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.
NY Wellness Med. P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50382(U)) FollowedThe insurer's delay notices referring only to the assignor's EUO failed to toll the payment period for three provider bills.

Similar decisions

A.M. Med. Servs., P.C. v Allstate Ins. Co. (2011 NY Slip Op 50436(U))A clerk's error calculating statutory no-fault attorney fees may be corrected under CPLR 5019 when the calculation is ministerial.
Fortune Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28218)No-fault attorney's fees are calculated per claim, with the $850 maximum applied to each claim rather than the entire action.
City Care Acupuncture, P.C. v Allstate Prop. & Cas. Ins. Co. (2016 NY Slip Op 51793(U))Statutory no-fault attorney fees are not discretionary or dependent on the actual value of counsel's services.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U))Peer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
All Mental Care Medicine, P.C. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52588(U))The insurer failed to prove timely mailing of the IME requests or the assignor's nonappearance through admissible evidence.