August 8, 2014

Compas Med., P.C. v Geico Ins. Co. (2014 NY Slip Op 51259(U))

https://www.beynensonlaw.com/case-law/compas-med-p-c-v-geico-ins-co-2014-ny-slip-op-51259u/

Court: Appellate Term, Second Department
Decided: August 8, 2014
Citation: 2014 NY Slip Op 51259(U) · 44 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Split result
Issues: Provider's prima facie case Medical necessity Fee schedule
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity · Proving a fee schedule defense (see the maps)

Cite as

Compas Med., P.C. v Geico Ins. Co., 44 Misc 3d 138(A), 2014 NY Slip Op 51259(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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, but the insurer also failed to obtain dismissal on its three defenses. The provider showed neither nonpayment or nondenial within 30 days nor a timely denial deficient as a matter of law under Insurance Law § 5106 (a). Its treating doctor's affidavit nevertheless raised a triable issue on claims denied for lack of medical necessity. The insurer did not establish entitlement to dismissal of claims denied under the workers' compensation fee schedule or as submitted more than 45 days after services. The Appellate Term, Second Department, modified the order to deny the insurer's cross motion and otherwise affirmed, leaving the provider's summary judgment motion denied.

Reported in New York Official Reports at Compas Med., P.C. v Geico Ins. Co. (2014 NY Slip Op 51259(U))

[*1]

Compas Med., P.C. v Geico Ins. Co.

2014 NY Slip Op 51259(U) [44 Misc 3d 138(A)]

Decided on August 8, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 8, 2014

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ.
2012-714 K C

Compas Medical, P.C. as Assignee of JEANNE BAPTISTE, Appellant,
against
GEICO Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 11, 2011. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court held that plaintiff had failed to make a prima facie showing and, on that basis, it granted defendant’s cross motion for summary judgment dismissing the complaint. On appeal, plaintiff argues that its motion for summary judgment should have been granted and that, in any event, defendant’s cross motion should not have been granted.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Thus, plaintiff failed to establish its entitlement to summary judgment, and its motion for summary judgment was properly denied.

Defendant denied plaintiff’s claims on three grounds: some, based on a lack of medical necessity; some, for exceeding the amount permitted by the workers’ compensation fee schedule; and some, because the claims were allegedly untimely as they had been submitted more than 45 days after the services had been rendered. As to the claims denied on the ground of a lack of medical necessity, the affidavit submitted by plaintiff’s treating doctor was sufficient to demonstrate the existence of a triable issue of fact. As to the claims which were denied based upon the workers’ compensation fee schedule or because they were untimely, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing these claims. As a result, defendant’s cross motion for summary judgment dismissing the complaint should have [*2]been denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.

Decision Date: August 08, 2014

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 failed its prima facie burden because its papers did not show the insurer failed to pay or deny within 30 days 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 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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)

Held the treating doctor's affidavit sufficient to raise a triable issue of fact on the claims denied for lack of medical necessity, so the insurer's cross motion should have been denied as to them.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

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.

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

Held the insurer failed to establish as a matter of law its entitlement to dismissal of the claims denied as exceeding the workers' compensation fee schedule, leaving the defense for trial.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 285 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. (2013 NY Slip Op 08430) FollowedA provider need not prove a claim's merits for summary judgment where the insurer failed to timely and properly deny the claim.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51240(U))Conflicting proof of claim receipt and verification responses precluded summary judgment for either party.
Compas Med., P.C. v Allstate Ins. Co. (2016 NY Slip Op 51356(U))The insurer failed to establish timely mailing of the denials supporting its EUO nonappearance defense.
Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Compas Med., P.C. v Farm Family Cas. Ins. Co. (2013 NY Slip Op 50254(U))The insurer's untimely denials precluded its EUO nonappearance defense to eight claims, and its denial of receipt did not defeat two others.
Compas Med., P.C. v Fiduciary Ins. Co. of Am. (2015 NY Slip Op 51472(U))The provider's summary judgment motion was denied because it failed to establish prima facie entitlement on its no-fault claim.