December 17, 2014
Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51826(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-nationwide-ins-2014-ny-slip-op-51826u/
- Decided
- December 17, 2014
- Citation
- 2014 NY Slip Op 51826(U) · 46 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 1 later decision (see Cited by)
- Legal questions
- Proof of mailing · No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)
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.
Reported in New York Official Reports at Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51826(U))
| Compas Med., P.C. v Nationwide Ins. |
| 2014 NY Slip Op 51826(U) [46 Misc 3d 131(A)] |
| Decided on December 17, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1888 K C
against
Nationwide Ins., Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 11, 2012. 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 the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and sixth causes of action 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue, five based upon plaintiff’s failure to appear for duly scheduled independent medical examinations (IMEs), and two on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff appeals, arguing, as to defendant’s cross motion, that defendant failed to demonstrate appropriate mailing practices and procedures of the denials and IME scheduling letters, and that defendant failed to establish its fee schedule defense as a matter of law.
Contrary to plaintiff’s arguments, the affidavits submitted by defendant in support of its cross motion were sufficient to demonstrate that the denials and IME scheduling letters had been mailed pursuant to a standard office practice and procedure (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 & 11th Jud Dists 2007]).
As to plaintiff’s first and sixth causes of action, we find that defendant failed to establish, as a matter of law, that the fees charged exceeded the amount 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, 11th & 13th Jud Dists 2009]), and that there is a triable issue of fact with respect thereto.
Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first and sixth causes of action are denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
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.
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 insurer's affidavits sufficient to show that the denials and IME scheduling letters were mailed under a standard office practice and procedure, rejecting the provider's challenge.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.
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
Held the insurer showed the IME scheduling letters were mailed under a standard office practice, so dismissal of the claims denied for the IME no-shows was affirmed.
Of the 858 decisions on this question in the Second Department courts and the Court of Appeals, 527 (this one included) are in the same category.
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 that the fees charged on two claims exceeded the workers' compensation fee schedule, leaving a triable issue of fact.
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.
- 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.
- 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.
Cited by
A label shows how the later decision treated this one.
- New Chiropractic Care, P.C. v Nationwide Ins. Co. of N.Y. (2020 NY Slip Op 50652(U)) FollowedA provider may not dictate an EUO location when the insurer designates a reasonably convenient place under 11 NYCRR 65-3.5 (e).
Similar decisions
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
- Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51142(U))The insurer failed to establish full payment under the workers' compensation fee schedule for the claim underlying the first cause of action.
- Compas Med., P.C. v Geico Ins. Co. (2014 NY Slip Op 51259(U))The provider failed to establish its prima facie case, but the insurer also failed to obtain dismissal on its three defenses.
- 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.
- Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.