March 11, 2016
Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))
https://www.beynensonlaw.com/case-law/compas-med-p-c-v-new-york-cent-mut-fire-ins-co-2016-ny-slip-op50307u/
- Decided
- March 11, 2016
- Citation
- 2016 NY Slip Op 50307(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 4 later decisions (see Cited by)
- Legal questions
- No-show defense: insurer's proof · Proof of mailing · 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 New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
New York Central Mutual Fire Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered July 31, 2012. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the third cause of action on the ground that defendant had never received the claim underlying that cause of action, and dismissing the remaining causes of action on the grounds that defendant had timely and properly denied the relevant claims based upon plaintiff’s assignor’s failure to appear for duly scheduled independent medical examinations (IMEs) and that the fees sought exceeded the amounts permitted by the workers’ compensation fee schedule. In addition, defendant alleged that the claim underlying the sixth cause of action had been untimely submitted. Plaintiff cross-moved for summary judgment. By order entered July 31, 2012, insofar as appealed from, the Civil Court denied defendant’s motion. While defendant submitted properly sworn statements by the chiropractor and doctor who had been scheduled to perform the IMEs, neither health care professional demonstrated personal knowledge of the nonappearance of plaintiff’s assignor for the examinations. Therefore, defendant failed to establish, with respect to the first, second, and fourth through seventh causes of action, its entitlement to judgment as a matter of law dismissing these claims on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; 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]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).
The affidavit of defendant’s no-fault litigation examiner established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) the denial of claim form underlying the sixth cause of action, which also denied the claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c], 65-3.3 [e]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [*2][2001]). In light of the foregoing, contrary to defendant’s contention, there is a triable issue of fact as to whether the claim at issue was timely submitted to defendant.
Although defendant also denied the claims underlying the first, second, and fourth through seventh causes of action based upon the workers’ compensation fee schedule, defendant failed to 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 there had been duplicate billing. Therefore, defendant was not entitled to summary judgment dismissing the first, second, and fourth through seventh causes of action on this ground.
To the extent defendant sought summary judgment dismissing the third cause of action on the ground that defendant had never received the claim form underlying this cause of action, defendant’s conclusory denial of receipt was insufficient to make a prima facie showing of defendant’s entitlement to summary judgment dismissing that cause of action (see e.g. Compas Med., P.C. v Farm Family Cas. Ins. Co., 38 Misc 3d 142[A], 2013 NY Slip Op 50254[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Aliotta and Elliot, JJ., concur.
Decision Date: March 11, 2016
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 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
Held the sworn statements of the scheduled chiropractor and doctor did not show personal knowledge of the assignor's nonappearance, so the IME no-show defense was not established.
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.
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)
Held that the insurer proved timely mailing of its 45-day denial, but the provider's owner's affidavit raised a presumption the claim was timely mailed and received, creating a triable issue on timely submission.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 99 (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 (rules on the question, but another ground decided the case)
Held the insurer failed to establish as a matter of law that the fees charged exceeded the workers' compensation fee schedule or that there was duplicate billing.
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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))The insurer failed to prove the provider's EUO nonappearance through someone with personal knowledge.
- Quality Health Prods. v Hertz Claim Mgt. Corp (2012 NY Slip Op 51722(U))The insurer proved the assignors' IME nonappearances through affidavits from a chiropractor and orthopedist with personal knowledge.
- 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.
- 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.
- 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.
Cited by
A label shows how the later decision treated this one.
- Longevity Med. Supply, Inc. v Progressive Ins. Co. (2020 NY Slip Op 20137) FollowedTimely IME no-show denials defeated the provider's motion where it did not show that the denials were legally insufficient.
- Healthway Med. Care, P.C. v MVAIC (2026 NY Slip Op 50200(U)) FollowedMVAIC failed to establish exhaustion or proper fee schedule payment, and claim-submission timeliness remained disputed.
- Big Apple Med. Supply, Inc. v Nationwide Affinity Ins. Co. of Am. (2018 NY Slip Op 51659(U)) FollowedThe insurer failed to prove nonreceipt of requested verification within 120 days through admissible affidavits.
- Sayyed DC, P.C. v Ameriprise Ins. Co. (2021 NY Slip Op 50311(U)) FollowedThe insurer established its EUO nonappearance defense to six bills, but untimely denials barred that defense to two others.
- Veraso Med. Supply Corp. v NY City Tr. Auth. (2019 NY Slip Op 50754(U))The provider's owner's affidavit raised a triable issue as to timely submission of the claim despite the transit authority's denial of receipt.
- Metro Pain Specialist, P.C. v Hertz Co. (2019 NY Slip Op 52047(U))The insurer failed to establish that policy limits were exhausted when the provider's claim became complete.
- Chapa Prods. Corp. v 21st Century Ins. Co. (2019 NY Slip Op 50741(U))The provider's proof raised factual disputes over timely submission of one claim and mailing of requested verification for another.
- Tsatskis v Travelers Ins. Co. (2020 NY Slip Op 51323(U))The insurer's EUO request was untimely for two claims, and conflicting mailing proof raised a factual issue on six others.
- Burke Physical Therapy, PC v State Farm Mut. Auto. Ins. Co. (2021 NY Slip Op 50624(U))The provider's detailed verification objections left factual issues about compliance with the insurer's requests.
Similar decisions
- Compas Med., P.C. v Farm Family Cas. Ins. Co. (2015 NY Slip Op 51704(U))The insurer lacked personal-knowledge proof of EUO nonappearance, while disputed billing receipt and deficient proof defeated the provider's motion.
- 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.
- 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.
- Compas Med., P.C. v Nationwide Ins. (2014 NY Slip Op 51826(U))The insurer proved mailing of IME notices and denials but failed to establish its fee schedule defense to two claims.
- Compas Med., P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50249(U))Seven provider claims were dismissed for IME nonappearance or unanswered verification; neither side established summary judgment on two others.