January 8, 2016

J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))

https://www.beynensonlaw.com/case-law/j-c-healing-touch-rehab-p-c-v-american-tr-ins-co-2016-ny-slip-op50033u/

Court: Appellate Term, Second Department
Decided: January 8, 2016
Citation: 2016 NY Slip Op 50033(U)
Posture: Summary judgment
Outcome: Split result
Issues: Verification requests Provider's prima facie case Medical necessity
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Outstanding verification and premature actions · Lack of medical necessity (see the maps)

Cite as

J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co., 2016 NY Slip Op 50033(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient. For the first and third through sixth causes of action, the insurer established timely verification requests and nonreceipt under 11 NYCRR 65-3.8 (a), but a billing company's employee affidavit created a presumption that responses were mailed and received. The provider failed to establish overdue payment or timely denials that were legally insufficient for the first and third through seventh causes of action. Conflicting medical opinions also precluded judgment on the seventh cause of action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's cross motion on the first and third through sixth causes, otherwise affirming.

Reported in New York Official Reports at J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

J.C. Healing Touch Rehab, P.C. as Assignee of WILLIAM GINORIO, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered April 4, 2013. The order, insofar as appealed from, denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied; as so modified, the order, insofar as appealed from, 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. Insofar as is relevant to this appeal, by order entered April 4, 2013, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon the first and third through seventh causes of action and granted the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action.

Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Consequently, contrary to plaintiff’s contention, plaintiff is not entitled to summary judgment upon the first and third through seventh causes of action. We note that even if plaintiff had made a prima facie showing of its entitlement to summary judgment upon the seventh cause of action, it would not be entitled to summary judgment thereon, as the conflicting medical expert opinions proffered by the parties demonstrated the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services at issue.

In support of the branch of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action, defendant submitted an affidavit by its claims examiner which established that defendant had timely mailed its verification requests [*2]and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s first and third through sixth causes of action are premature (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the cross motion, plaintiff submitted an affidavit from an employee of National Billing & Collections, Inc., which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether these causes of action are premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the first and third through sixth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: January 08, 2016

Legal questions (4)

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: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider not entitled to summary judgment because its papers did not show the claims were not paid or denied within 30 days or that timely denials were conclusory, vague or without merit.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

Proof of mailing

Open the full map

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

Held the insurer proved timely mailing of verification requests and follow-ups, but the billing company's affidavit raised a presumption the verification was mailed and received, leaving a triable issue on receipt.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 103 (this one included) are in the same category.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Fact issues remain on whether the verification defense applies

Held the insurer showed timely verification requests and non-receipt, but the provider's billing-company affidavit raised a presumption the verification was mailed and received, so whether the claims were premature was a triable issue.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)

Noted that even had the provider made a prima facie case on one cause of action, conflicting medical expert opinions raised a triable issue of medical necessity defeating its motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.

Cited in this decision

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

Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co. (2015 NY Slip Op 04787) FollowedA provider establishes entitlement to summary judgment on overdue no-fault claims with admissible proof of mailing and receipt of statutory claim forms.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933) FollowedThe provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.
Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
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.
Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 24145) FollowedThe provider's mail-record affidavit raised a triable issue as to whether the insurer mailed its verification requests.

Similar decisions

Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51239(U))The provider's mailing affidavit raised a factual issue over receipt of verification, and the insurer failed to prove fee-schedule payment.
J.C. Healing Touch Rehab, P.C. v Amica Mut. Ins. Co. (2014 NY Slip Op 50969(U))The provider failed to establish either an untimely denial or a timely denial that was legally insufficient.
JCC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2017 NY Slip Op 51140(U))The provider's affidavit raised a factual issue over receipt of requested verification and whether the second cause of action was premature.
TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51318(U))The insurer established an IME nonappearance defense on the first claim but failed to prove a timely denial of the second.
Compas Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51699(U))The provider raised a verification dispute on one claim, but the insurer proved IME and EUO nonappearance on five others.