November 13, 2020

Advanced Recovery Equip. & Supplies, LLC v Global Liberty Ins. Co. (2020 NY Slip Op 51373(U))

https://www.beynensonlaw.com/case-law/advanced-recovery-equip-supplies-llc-v-global-liberty-ins-co-2020-ny-slipop-51373u/

Court: Appellate Term, Second Department
Decided: November 13, 2020
Citation: 2020 NY Slip Op 51373(U)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Advanced Recovery Equip. & Supplies, LLC v Global Liberty Ins. Co., 2020 NY Slip Op 51373(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020)

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.

Factual disputes over medical necessity and timely claim submission precluded summary judgment and a trial limited to the fee schedule. The insurer sought dismissal based on lack of medical necessity, submission beyond 45 days after supplies were provided, and charges exceeding the workers' compensation fee schedule. The Civil Court denied the motion but found the claims timely and properly mailed under CPLR 3212 (g), leaving only the fee schedule for trial. The Appellate Term, Second Department, modified the order, insofar as appealed from, to vacate that finding and trial limitation because medical necessity and submission timeliness remained disputed, and otherwise affirmed.

Reported in New York Official Reports at Advanced Recovery Equip. & Supplies, LLC v Global Liberty Ins. Co. (2020 NY Slip Op 51373(U))

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

Advanced Recovery Equipment and Supplies, LLC, as Assignee of Kathy Hernandez, Respondent,
against
Global Liberty Insurance Company, etc., Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of Melissa Betancourt, P.C. (Melissa Betancourt of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sharon Bourne-Clarke, J.), entered October 16, 2018. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint, found, in effect pursuant to CPLR 3212 (g), that the two claims “were both timely and properly mailed,” and stated that the “sole issue that remains for trial is the issue of fee schedule.”

ORDERED that the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) finding in plaintiff’s favor and the limitation of the trial to “the issue of fee schedule” are vacated; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint on the grounds that there was a lack of medical necessity for the supplies at issue; that plaintiff had failed to submit its two claims within 45 days of the date that the supplies set forth therein had been provided; and that the amounts sought exceeded the amounts permitted by the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. As limited by its brief, defendant appeals from so much of an order of the Civil Court entered October 16, 2018 as denied defendant’s motion, found, in effect pursuant to CPLR 3212 (g), that the two claims “were both [*2]timely and properly mailed,” and stated that “sole issue that remains for trial is the issue of fee schedule.”

On this record, we find that there are triable issues of fact as to whether the supplies at issue were medically necessary and whether the claims had been timely submitted to defendant (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, while defendant is not entitled to summary judgment dismissing the complaint on those grounds, there was no basis for the Civil Court to find that the claims had been “timely and properly mailed” to defendant or to limit the trial to “the issue of fee schedule” (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]; Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co., 30 Misc 3d 42 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]).

Defendant’s remaining contention lacks merit (see e.g. Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of NY, 54 Misc 3d 129[A], 2016 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is modified by providing that the implicit CPLR 3212 (g) finding in plaintiff’s favor and the limitation of the trial to “the issue of fee schedule” are vacated.

ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 13, 2020

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.

Proof of mailing

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

This decision: The mailing proof (of either party) left only a triable issue of fact on whether or when the item was mailed or received (rules on the question, but another ground decided the case)

Vacated the lower court's finding that the provider's two claims were timely and properly mailed, holding that triable issues existed as to whether the claims had been timely submitted to the insurer.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial) (rules on the question, but another ground decided the case)

Affirmed denial of the insurer's summary judgment motion because triable issues of fact existed as to whether the supplies were medically necessary.

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

Cited in this decision

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

Parisien v Travelers Ins. Co. (2019 NY Slip Op 51895(U)) FollowedConflicting proof of claim mailing and receipt precluded summary judgment and conclusive findings in the provider's favor.
Quality Med. Healthcare of NY, P.C. v NY Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 20493) FollowedThe provider's prima facie case and licensing eligibility remained disputed, precluding a trial limited to excessive fees.
Metropolitan Diagnostic Med. Care, P.C. v Erie Ins. Co. of N.Y. (2016 NY Slip Op 51815(U))The insurer's medical-necessity defense failed at trial because its peer-review doctor's testimony was found not credible.

Similar decisions

Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY (2021 NY Slip Op 50445(U))The insurer proved IME nonappearances and nonreceipt of one claim, but failed to establish its fee-schedule defense to a partially paid claim.
Healthway Med. Care, P.C. v Global Liberty Ins. (2017 NY Slip Op 51807(U))The insurer failed to establish its fee schedule defense and timely mailing of IME scheduling letters.
Lida’s Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51691(U))The provider's summary judgment motion was denied because it failed to establish untimely denial or a legally insufficient timely denial.
Longevity Med. Supply, Inc. v Global Liberty Ins. Co. (2020 NY Slip Op 50527(U))The insurer was awarded summary judgment based on a declaratory judgment barring no-fault benefits for the accident.
First Care Med. Equip., LLC v Kemper Ins. Co. (2020 NY Slip Op 51326(U))The provider failed to establish prima facie entitlement to summary judgment, and the insurer raised a triable issue of medical necessity.