June 29, 2022
Hernandez v Merchants Mut. Ins. Co. (2022 NY Slip Op 04156)
https://www.beynensonlaw.com/case-law/hernandez-v-merchants-mut-ins-co-2022-ny-slip-op-04156/
- Decided
- June 29, 2022
- Citation
- 2022 NY Slip Op 04156 · 206 AD3d 978
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Later treatment
- Followed in 2 later decisions (see Cited by)
- Legal questions
- Lack of medical necessity · Claimant's prima facie case on motions (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 Hernandez v Merchants Mut. Ins. Co. (2022 NY Slip Op 04156)
| Hernandez v Merchants Mut. Ins. Co. |
| 2022 NY Slip Op 04156 [206 AD3d 978] |
| June 29, 2022 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
[*1]
| Mario Hernandez, Respondent, v Merchants Mutual Insurance Company, Appellant. |
Lawrence N. Rogak, LLC, Oceanside, NY, for appellant.
Law Offices of Michael H. Joseph, PLLC, White Plains, NY (Clifford S. Nelson of counsel), for respondent.
In an action to recover first-party no-fault benefits under a policy of automobile insurance, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2017, and (2) a judgment of the same court, dated October 26, 2017. The order granted the plaintiff’s motion for summary judgment in the principal sum of $44,573.86. The judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $44,573.86.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In 2008, a vehicle operated by the plaintiff and insured by the defendant, Merchants Mutual Insurance Company, was struck in the rear by a sanitation truck owned by the City of White Plains. The plaintiff subsequently underwent surgery to remove his L5-S1 disc and replace it with an artificial lumbar disc. After the defendant denied the subject claims on the ground that the surgery was not medically necessary, the plaintiff commenced the instant action to recover first-party no-fault benefits. The defendant answered the complaint and the plaintiff later moved for summary judgment in the principal sum of $44,573.86, representing unpaid first-party no-fault benefits under the insurance policy. The defendant opposed the motion. The Supreme Court granted the plaintiff’s motion and issued a judgment in favor of the plaintiff in the principal sum of $44,573.86. The defendant appeals.
“The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments [*2]to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle’ ” (Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18 [1994], quoting Insurance Law § 5102 [b]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 47 [2015]). The no-fault law defines “basic economic loss” (Insurance Law § 5102 [a]) as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . [and] surgical . . . services” (id. § 5102 [a] [1] [i]) as well as loss of earnings from work. Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1; see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).
A plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006]).
In support of his motion, the plaintiff submitted, inter alia, the disputed claims, the defendant’s form denials, the affidavit of his surgeon, Richard Peress, and the affidavit of Christine Taylor, assistant director of patient accounts for Phelps Memorial Hospital (hereinafter the hospital).
The plaintiff demonstrated, prima facie, that the prescribed statutory billing forms relative to the medical services provided by Peress were mailed and received, and that the defendant failed to pay or validly deny the claims within the permissible 30 days (see Insurance Law § 5102 [a] [1]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Hobby v CNA Ins. Co., 267 AD2d 1084 [1999]; see also DeGiorgio v Racanelli, 136 AD3d 734 [2016]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]). In opposition, the defendant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the claimed benefits were properly denied on the ground of lack of medical justification (see 11 NYCRR 65-3.8 [b] [4]).
Contrary to the defendant’s contention, the plaintiff had standing to pursue his claims for no-fault benefits (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626 [2020]).
Given that the amount of the outstanding no-fault benefits relative to the medical services provided by Peress exceeds the principal sum awarded in the judgment, we need not reach the parties’ remaining contentions, including whether the plaintiff was entitled to no-fault benefits relative to the medical services provided by the hospital.
Accordingly, we affirm the judgment. Barros, J.P., Iannacci, Chambers and Christopher, JJ., concur.
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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)
Held the insurer's opposition did not include admissible evidence sufficient to raise a triable issue that the spinal disc surgery claims were properly denied for lack of medical justification, so summary judgment for the claimant was affirmed.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the injured claimant showed the billing forms for the surgeon's services were mailed and received and were not paid or validly denied within 30 days, shifting the burden to the insurer.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida (2015 NY Slip Op 06343)An arbitrator may decide whether a carrier is an insurer subject to mandatory loss-transfer arbitration despite its nonappearance.
- Long Is. Radiology v Allstate Ins. Co. (2007 NY Slip Op 00496)An insurer may assert lack of medical necessity against a radiologist seeking assigned no-fault benefits for prescribed MRIs. The provider argued that the defense was unavailable because it performed MRIs on prescription without diagnosing patients, conducting physical examinations, or assessing necessity.
- Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787)A provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
- A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
- New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558)The providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
- Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C. (2016 NY Slip Op 06680)The insurer's affirmed peer review supported a default judgment despite lacking an original signature.
- New York & Presbyt. Hosp. v Selective Ins. Co. of Am. (2007 NY Slip Op 06848)The insurer's conclusory medical affidavit failed to raise a factual issue that the treated condition was unrelated to the automobile accident.
- Allstate Ins. Co. v Kapeleris (2020 NY Slip Op 02645) FollowedThe claimant had standing because direct billing and payment rendered two no-fault assignments ineffectual, and no third assignment existed.
Cited by
A label shows how the later decision treated this one.
- MK Healthcare Med. PC v Travelers Ins. Co. (2022 NY Slip Op 50824(U)) FollowedThe insurer proved at trial that lower-extremity electrodiagnostic studies were medically unnecessary.
- American Tr. Ins. Co. v Beach Med. Rehabilitation, P.C. (2026 NY Slip Op 03771) FollowedThe insurer failed to raise a triable issue on timely denials or causation in its action for de novo review of no-fault claims.
Similar decisions
- Healthplus Surgery Ctr., LLC v American Tr. Ins. Co. (2022 NY Slip Op 02252)The insurer proved fee-schedule overbilling but failed to support its medical-necessity defense with a factual basis and medical rationale.
- Allstate Ins. Co. v Buffalo Neurosurgery Group (2019 NY Slip Op 03749)The insurer established a fee-schedule defense but failed to show that the assignor's spinal fusion surgery was medically unnecessary.
- Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2021 NY Slip Op 08159)The insurer failed to support its policy-exhaustion defense with admissible evidence concerning the provider's claim.
- New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376)The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.
- Westchester Med. Ctr. v Lincoln Gen. Ins. Co. (2009 NY Slip Op 02589)The insurer's investigation letters did not toll the 30-day period to pay or deny the provider's claim.