April 9, 2004

Damadian Mri In Garden City v Windsor Group Ins. (2004 NY Slip Op 50262(U))

https://www.beynensonlaw.com/case-law/damadian-mri-in-garden-city-v-windsor-group-ins-2004-ny-slip-op-50262u/

Court: Appellate Term, Second Department
Decided: April 9, 2004
Citation: 2004 NY Slip Op 50262(U)
Posture: Summary judgment
Outcome: Split result
Issues: Assignments and standing Provider's prima facie case Verification requests
Legal questions: Claimant's prima facie case on motions · Challenging the assignment of benefits (see the maps)

Cite as

Damadian Mri In Garden City v Windsor Group Ins., 2004 NY Slip Op 50262(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

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 entitlement to summary judgment because its assignment named an assignee whose identity remained uncertain. The assignment named only "Damadian MRI," leaving a factual question whether the plaintiff provider was the assigned entity. Although sufficient to withstand dismissal for lack of standing, it did not establish the provider's prima facie entitlement to judgment. The Appellate Term, Second Department, reversed the judgment, denied the provider's cross motion and remanded, while sustaining denial of the insurer's motion. The insurer's EUO notices did not toll the statutory period because the applicable no-fault regulations did not authorize that verification. Its remaining contentions lacked merit for the reasons stated in the companion appeal decided the same day, No. 2003-862 Q C.

Reported in New York Official Reports at Damadian Mri In Garden City v Windsor Group Ins. (2004 NY Slip Op 50262(U))

[*1]

Damadian MRI in Garden City v Windsor Group Ins.

2004 NY Slip Op 50262(U)

Decided on April 9, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 9, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT:DECIDED April 9, 2004 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-717 Q C

DAMADIAN MRI IN GARDEN CITY, P.C. A/A/O SHARON GAMBOA, Respondent,
against
WINDSOR GROUP INSURANCE, Appellant.

Appeal by defendant from an order of the Civil Court, Queens County (A. Agate, J.), entered February 26, 2003, denying its motion for summary judgment dismissing the complaint and granting plaintiff’s cross motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order, on April 8, 2003, awarding plaintiff the sum of $1,469.84 (see CPLR 5501 [c]).

Judgment unanimously reversed without costs, so much of the order, entered February 26, 2003, as granted plaintiff’s cross motion for summary judgment vacated, plaintiff’s cross motion denied and matter remanded to the court below for all further proceedings.

Plaintiff commenced this action to recover $878.67, in first-party no-fault benefits for medical services it rendered to its assignor, as well as statutory interest and attorney’s fees, pursuant to Insurance Law § 5101 et seq. Thereafter, defendant moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. By order entered February 26, 2003, the court below denied the motion and granted the cross motion. A judgment was subsequently entered pursuant to said order on April 8, 2003 awarding plaintiff the sum of $1,469.84.

Upon a review of the record, we find that plaintiff failed to establish its prima facie entitlement to summary judgment inasmuch as it did not show that the assignor made an assignment to plaintiff Damadian MRI in Garden City, P.C. The assignment form herein names [*2]the assignee merely as “Damadian MRI.” Although the assignment demonstrates plaintiff’s standing to sue sufficient to withstand a motion to dismiss (see e.g. Neuro Care Assoc. v State Farm Ins. Co., NYLJ, June 25, 1998 [App Term, 2d & 11th Jud Dists]), it raises a question of fact as to whether plaintiff is the same entity as the one named in the assignment.

We note that defendant’s notices for examinations under oath did not toll the statutory period inasmuch as at the applicable time, there was no provision in the no-fault regulations for such verification (A.B. Med. Servs. PLLC v Eagle Ins. Co., NYLJ, Dec. 29,
2003 [App Term, 9th & 10th Jud Dists]; see also A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., NYLJ, Oct. 27, 2003 [App Term, 2d & 11th Jud Dists]). In view of the foregoing, plaintiff’s cross motion for summary judgment should have been denied. Moreover, defendant’s motion for summary judgment dismissing the complaint was properly denied as its remaining contentions lack merit (see Damadian MRI in Garden City, P.C. v Windsor Group Ins., No. 2003-862 Q C, decided herewith).
Decision Date: April 09, 2004

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.

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 for another reason (eligibility, timely submission, own papers defeat the claim)

Held the provider failed its prima facie burden because the assignment named only 'Damadian MRI,' raising a question whether the plaintiff was the assignee entity.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 19 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Challenging the assignment of benefits

Open the full map

Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: Validity of the assignment, the assignee's identity, or the timeliness of the insurer's objection cannot be decided on this record

Held the provider failed to make a prima facie case because the assignment named only "Damadian MRI," which sufficed to resist dismissal but raised a question of fact whether the plaintiff was the named assignee.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 3 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited by

T&G Med. Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 50636(U))The supplier lacked standing because its assignor neither received the supplies nor incurred an obligation to pay for them.
L.I. Community Med., P.C. v Allstate Ins. Co. (2008 NY Slip Op 51034(U))A master arbitrator's award had a rational basis where the provider's assignment named a different entity and did not establish standing.

Similar decisions

Damadian Mri In Garden City v Liberty Mut. Ins. Co. (2003 NY Slip Op 51702(U))An insurer that fails to deny a no-fault claim within 30 days of receipt is precluded from asserting lack of medical necessity.
Damadian MRI in Canarsie, P.C. v General Assur. Co. (2006 NY Slip Op 51048(U))The insurer waived defenses concerning assignment forms by failing to object timely to their completeness or seek verification.
Executive MRI Imaging, P.C. v State Farm Ins. Co. (2008 NY Slip Op 50902(U))The provider's summary judgment proof lacked a proper foundation for admitting its supporting documents as business records.
Jamhil Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51644(U))The insurer established timely mailing of IME notices and a denial based on the assignor's failure to appear for the scheduled IMEs. The president of the independent medical review service retained to schedule the examinations established timely mailing of the scheduling letters.
Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 52406(U))The insurer established the assignor's IME nonappearance and defeated the provider's challenge to the duplicate denial requirement.