December 24, 2012

Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))

https://www.beynensonlaw.com/case-law/devonshire-surgical-facility-llc-v-allstate-ins-co-2012-ny-slip-op52351u/

Court: Appellate Term, First Department
Decided: December 24, 2012
Citation: 2012 NY Slip Op 52351(U) · 38 Misc 3d 127
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Discovery and procedure
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

Devonshire Surgical Facility, LLC v Allstate Ins. Co., 38 Misc 3d 127 (App Term, 1st Dept 2012)

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's cross motion failed because factual issues remained over billing rates applicable to its apparent surgical facility status. The assigned no-fault claims had been timely denied. The record raised questions whether the billed amounts properly reflected the provider's apparent status as a surgical facility or exceeded governing fee schedule rates. The provider waived any claimed defect in the insurer's adjuster affidavit by failing to contest its admissibility. Its new reply arguments, even if properly considered, did not eliminate all triable factual issues. The Appellate Term, First Department, affirmed denial of the provider's cross motion, leaving the insurer's fee schedule defense for resolution.

Reported in New York Official Reports at Devonshire Surgical Facility, LLC v Allstate Ins. Co. (2012 NY Slip Op 52351(U))

[*1]

Devonshire Surgical Facility, LLC v Allstate Ins. Co.

2012 NY Slip Op 52351(U) [38 Misc 3d 127]

Decided on December 24, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 24, 2012

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

PRESENT: Schoenfeld, J.P., Shulman, Hunter, Jr., JJ
570727/12.

Devonshire Surgical Facility, LLC, a/a/o Nancy Rodriguez, Plaintiff-Appellant, – –
against
Allstate Insurance Company, Defendant-Respondent.

Plaintiff, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, New York County (Margaret A. Chan, J.), entered March 28, 2012, which denied its cross motion for summary judgment on the complaint.

Per Curiam.

Order (Margaret A. Chan, J.), entered March 28, 2012, affirmed, with $10 costs.

The action, seeking recovery of assigned first-party no-fault benefits, is not ripe for summary disposition. The record raises several triable issues, including whether the amounts of the timely denied claims properly reflected plaintiff’s apparent status as a surgical facility or were otherwise in excess of the rates set forth in the governing fee schedule (see MIA Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 69 [2011]). Plaintiff waived any purported defect in the affidavit of defendant’s adjuster by failing to contest its admissibility (see Akamnonu v Rodriguez, 12 AD3d 187 [2004]). The new arguments raised in plaintiff’s reply papers, even if properly considered (cf. Henry v Peguero, 72 AD3d 600, 602 [2010], appeal dismissed 15 NY3d 820 [2010]), failed to eliminate all triable issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur.
Decision Date: December 24, 2012

Legal questions

A question 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.

Proving a fee schedule defense

Open the full map

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 triable issues remained whether the timely denied amounts properly reflected the provider's surgical facility status or exceeded the governing fee schedule, so the provider's summary judgment motion was denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 45 decisions on this question in the First Department courts and the Court of Appeals, 10 (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 in this decision

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

MIA Acupuncture, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 21480) FollowedThe insurer proved lack of medical necessity for certain acupuncture services but failed to establish late submission or excessive fees.

Cited by

Z.M.S. & Y. Acupuncture, P.C. v Geico Gen. Ins. Co. (2017 NY Slip Op 27189)The insurer's one-day delay in sending a follow-up EUO request did not excuse the provider's four nonappearances on this record.
Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2017 NY Slip Op 50345(U))The insurer failed to establish that the provider's charges exceeded the workers' compensation fee schedule, despite proving a timely denial.
Lotus Acupuncture PC v Hereford Ins. Co. (2018 NY Slip Op 50057(U))The insurer's summary judgment motion on its fee-schedule defense was denied because its proof did not establish excessive charges.
Healthy Way Acupuncture PC v Global Liberty Ins. Co. of N.Y. (2018 NY Slip Op 51709(U))The insurer's contradictory submissions raised factual issues about timely and proper fee-schedule denials.

Similar decisions

Devonshire Surgical Facility v American Tr. Ins. Co. (2011 NY Slip Op 50513(U))The insurer's conclusory peer review report failed to raise a triable issue concerning medical necessity.
Devonshire Surgical Facility v Nationwide Mut. Ins. Co. (2008 NY Slip Op 52014(U))The insurer's appeal was untimely because its notice of appeal was not filed within 30 days after service of the order with notice of entry.
Devonshire Surgical Facility, L.L.C. v Hereford Ins. Co. (2010 NY Slip Op 52297(U))The Workers' Compensation Board must first resolve the factual question whether the assignor's loss falls under the Workers' Compensation Law. The insurer alleged that the loss occurred during employment, and its submissions raised a factual issue concerning workers' compensation coverage.
Devonshire Surgical Facility v GEICO (2007 NY Slip Op 51308(U))The insurer raised licensing issues as to the surgical facility but was precluded from asserting fraudulent billing against the orthopedic provider.
Gentlecare Ambulatory Anesthesia Servs. v Allstate Ins. Co. (2018 NY Slip Op 51607(U))The insurer failed to establish timely denial mailing, and the provider failed to establish prima facie entitlement to payment.