July 21, 2017

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))

https://www.beynensonlaw.com/case-law/acupuncture-healthcare-plaza-i-p-c-v-21st-century-advantage-ins-co-2017-ny-slipop-50945u/

Court: Appellate Term, Second Department
Decided: July 21, 2017
Citation: 2017 NY Slip Op 50945(U)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion IME no-show Staged accidents, lack of coverage
Legal questions: Proof of mailing · No-show defense: insurer's proof · No covered accident (founded belief) (see the maps)

Cite as

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co., 2017 NY Slip Op 50945(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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 insurer failed to prove timely fee-schedule denials or lack of coverage for two claims, but raised a triable coverage issue. Checked boxes adequately identified fee-schedule reductions, and the scheduling company's affidavit proved timely IME notices. For the $290.74 and $210.72 claims, however, the insurer did not establish timely denials permitting its fee-schedule defense. Its coverage evidence also failed to establish that the injuries arose outside an insured incident, although it raised a factual issue defeating the provider's cross motion. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on those two claims and otherwise affirmed, leaving dismissal of the remaining claims and denial of the provider's cross motion intact.

Reported in New York Official Reports at Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co. (2017 NY Slip Op 50945(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Acupuncture Healthcare Plaza I, P.C., as Assignee of Mikhail Robinson, Appellant,
against
21st Century Advantage Ins. Co., Respondent.

Korsunskiy Legal Group, P.C. (Michael Hoenig, Esq.), for appellant. Law Offices of Bryan M. Rothenberg (Maryana Feigen, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. 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 modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $290.74 and $210.72 are 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 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.

Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). In addition, plaintiff’s argument that defendant failed to establish the mailing of the letters scheduling the independent medical examinations (IMEs) lacks merit. Defendant submitted an affidavit by an employee of the company which had been retained by defendant to schedule IMEs, which affidavit established that the IME scheduling letters had been timely mailed in accordance with that office’s standard [*2]mailing practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).

However, with respect to the branches of defendant’s motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon claims in the sums of $290.74 and $210.72, defendant’s moving papers did not establish that these claims had been timely denied. As defendant did not demonstrate that it is not precluded from asserting its proffered defense that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule, defendant is not entitled to summary judgment dismissing these claims. To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). However, plaintiff is not entitled to summary judgment upon these claims as defendant’s evidence was sufficient to demonstrate the existence of a triable issue of fact.

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims in the sums of $290.74 and $210.72 are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 21, 2017

Legal questions (3)

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.

Proof of mailing

Open the full map

Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice

Held the affidavit of an employee of the insurer's IME scheduling company established timely mailing of the IME scheduling letters under that office's standard mailing practices.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (this one included) are in the same category.

No-show defense: insurer's proof

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Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer proved mailed, compliant requests and the nonappearance; claimant's answers rejected (rules on the question, but another ground decided the case)

Rejected the provider's challenge to the IME no-show defense, holding that the scheduling company employee's affidavit established timely mailing of the IME scheduling letters under standard office practices.

Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 525 (this one included) are in the same category.

No covered accident (founded belief)

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Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Founded belief shown; the question must be tried (rules on the question, but another ground decided the case)

Held the insurer's evidence did not establish as a matter of law that the injuries did not arise from an insured incident, but sufficed to raise a triable issue defeating the provider's cross motion on two claims.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 102 (this one included) are in the same category.

Cited in this decision

Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50778(U))The insurer established that the workers' compensation fee schedule supported reducing the billed reimbursement using CPT code 20552.
Arco Med. NY, P.C. v Lancer Ins. Co. (2012 NY Slip Op 52178(U))The insurer's proof of timely EUO notices, nonappearance, and denial defeated the provider's summary judgment cross motion.
St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Infinity Health Prods., Ltd. v American Tr. Ins. Co. (2011 NY Slip Op 50195(U))The insurer failed to establish that the assignor's alleged injuries did not arise from an insured incident.

Similar decisions

Acupuncture Approach, P.C. v NY Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51455(U))The insurer failed to establish timely denials preserving its fee-schedule defense to three claims.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.
Acupuncture Healthcare Plaza I, P.C. v 21st Century Ins. Co. (2015 NY Slip Op 51716(U))The insurer proved its acupuncture fee-schedule reductions, but a factual issue over the IME notice address defeated dismissal of two claims.
Acuhealth Acupuncture, P.C. v Hereford Ins. Co. (2017 NY Slip Op 51871(U))The insurer failed to show that it requested verification of the documentation needed to price services billed under CPT code 97039.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.