July 12, 2019

Apple Massage Therapy, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51153(U))

https://www.beynensonlaw.com/case-law/apple-massage-therapy-p-c-v-21st-century-ins-co-2019-ny-slip-op51153u/

Court: Appellate Term, Second Department
Decided: July 12, 2019
Citation: 2019 NY Slip Op 51153(U) · 64 Misc 3d 136(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Timeliness and preclusion
Legal questions: Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Apple Massage Therapy, P.C. v 21st Century Ins. Co., 64 Misc 3d 136(A), 2019 NY Slip Op 51153(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 obtained summary judgment on proof of properly mailed denials and proper use of the workers' compensation fee schedule. The Appellate Term, Second Department, found the proof sufficient to establish a mailing presumption and the amount payable for the services, rejected the provider's remaining contention, and affirmed the order dismissing the complaint.

Reported in New York Official Reports at Apple Massage Therapy, P.C. v 21st Century Ins. Co. (2019 NY Slip Op 51153(U))

[*1]

Apple Massage Therapy, P.C. v 21st Century Ins. Co.

2019 NY Slip Op 51153(U) [64 Misc 3d 136(A)]

Decided on July 12, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 12, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-407 K C

Apple Massage Therapy, P.C., as Assignee of Nesha Ramdeo, Appellant,
against
21st Century Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Leslie A. Eyma, Jr. of counsel), for respondent.

Appeal from the order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered July 6, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that defendant had properly used the workers’ compensation fee schedule to determine the amount which plaintiff was entitled to receive for the services at issue. Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019

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

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

Rejected the provider's challenge and held the insurer's proof sufficient to raise a presumption that its denial of claim forms had been properly mailed.

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.

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 proved the billed amount exceeded the applicable fee schedule

Held the insurer showed it properly used the workers' compensation fee schedule to determine the amount owed, so dismissal of the complaint was affirmed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (this one included) are in the same category.

Cited in this decision

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.

Similar decisions

Shirom Acupuncture, P.C. v 21st Century Natl. Ins. Co. (2017 NY Slip Op 51819(U))The insurer established proper mailing of the denial forms challenged in its fee-schedule payment defense.
Compas Med., P.C. v 21st Century Ins. Co. (2018 NY Slip Op 50773(U))The insurer's motion for summary judgment based on full payment under the workers' compensation fee schedule was granted.
Easy Care Acupuncture, P.C. v 21 Century Advantage Ins. Co. (2017 NY Slip Op 51792(U))The insurer's summary judgment motion was granted based on full fee schedule payment and proper mailing of its denial.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50946(U))The insurer proved outstanding verification and proper fee-schedule reductions; a challenge to mailing of payment was unpreserved.
Success Rehab P.T., P.C. v NY Cent. Mut. Fire Ins. Co. (2019 NY Slip Op 50572(U))The insurer's IME report established that the assignor's injuries had resolved and that the disputed services lacked medical necessity.