December 8, 2017

Adelaida M. Laga, P.T. v GEICO Ins. Co. (2017 NY Slip Op 51715(U))

https://www.beynensonlaw.com/case-law/adelaida-m-laga-p-t-v-geico-ins-co-2017-ny-slip-op-51715u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51715(U) · 58 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Fee schedule IME no-show
Legal questions: Claimant's prima facie case on motions · No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)

Cite as

Adelaida M. Laga, P.T. v GEICO Ins. Co., 58 Misc 3d 127(A), 2017 NY Slip Op 51715(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 provider failed to establish its prima facie case, and the insurer failed to prove fee schedule excesses or IME nonappearance. The provider's summary judgment proof did not establish that the claim was not timely denied or that a timely denial was conclusory, vague, or legally meritless. The insurer's cross motion did not establish as a matter of law that the fees exceeded the workers' compensation fee schedule or that the assignor failed to appear for IMEs. Treating the appeal as taken from the ensuing judgment under CPLR 5501 (c), the Appellate Term, Second Department, reversed the provider's judgment, vacated the grant of its motion, and denied that motion. Denial of the insurer's cross motion remained undisturbed.

Reported in New York Official Reports at Adelaida M. Laga, P.T. v GEICO Ins. Co. (2017 NY Slip Op 51715(U))

[*1]

Laga v GEICO Ins. Co.

2017 NY Slip Op 51715(U) [58 Misc 3d 127(A)]

Decided on December 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2086 Q C

Adelaida M. Laga, P.T., as Assignee of Mustapha, Jimoh, Respondent,
against
GEICO Ins. Co., Appellant.

The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered August 5, 2014, deemed from a judgment of the same court entered August 21, 2014 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 5, 2014 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,344.87.

ORDERED that the judgment is reversed, with $30 costs, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court entered August 5, 2014 which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the [*2]proof submitted by plaintiff in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As plaintiff failed to establish its prima facie case, its motion for summary judgment should have been denied.

However, the Civil Court properly denied defendant’s cross motion for summary judgment. Contrary to defendant’s contention, the papers submitted in support of its cross motion did not establish, as a matter of law, that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]) or that plaintiff’s assignor had failed to appear for independent medical examinations (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed, so much of the order entered August 5, 2014 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 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.

Claimant's prima facie case on motions

Open the full map

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

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's proof failed to establish that the claim had not been timely denied or that a timely denial was conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 failed to prove the nonappearance by someone with personal knowledge (rules on the question, but another ground decided the case)

Held the insurer's papers did not establish as a matter of law that the assignor failed to appear for the scheduled IMEs.

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

Proving a fee schedule defense

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Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?

This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial (rules on the question, but another ground decided the case)

Held the insurer's papers did not establish as a matter of law that the fees charged exceeded the workers' compensation fee schedule amounts, so its cross motion was properly denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 85 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) FollowedThe insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) FollowedAn insurer must prove a provider's EUO nonappearance through admissible evidence from a person with knowledge of the facts.

Similar decisions

Adelaida M. Laga, Pt v GEICO Ins. Co. (2017 NY Slip Op 51713(U))The insurer failed to establish the correct fee schedule conversion factor or proper application of Ground Rule 11.
Laga v Amica Mut. Ins. Co. (2017 NY Slip Op 51136(U))The insurer failed to establish mailing of the assignor's IME scheduling letters and was denied summary judgment on the nonappearance defense.
Laga v American Commerce Ins. Co. (2017 NY Slip Op 51250(U))The insurer failed to establish a timely denial of the sixth claim on its EUO nonappearance defense.
Adelaida M. Laga, Pt v 21st Century Ins. Co. (2016 NY Slip Op 51623(U))The insurer's summary judgment motion dismissing the first four causes of action was granted based on timely mailed denials.
NL Quality Med., P.C. v GEICO Ins. Co. (2020 NY Slip Op 51340(U))The insurer proved EUO nonappearance and a policy deductible on four causes of action, but its fee-schedule proof failed on the second.