March 29, 2013

Jamaica Med. Plaza, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50475(U))

https://www.beynensonlaw.com/case-law/jamaica-med-plaza-p-c-v-interboro-ins-co-2013-ny-slip-op50475u/

Court: Appellate Term, Second Department
Decided: March 29, 2013
Citation: 2013 NY Slip Op 50475(U) · 39 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Split result
Issues: Discovery and procedure Provider's prima facie case Medical necessity
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Jamaica Med. Plaza, P.C. v Interboro Ins. Co., 39 Misc 3d 131(A), 2013 NY Slip Op 50475(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 insurer was entitled to a provider deposition material and necessary to its defense, but factual disputes barred summary judgment. The treating physician's affirmation raised triable issues concerning medical necessity and compliance with the Workers' Compensation fee schedule. The billing administrator's affidavit established admissibility of the claim forms under CPLR 4518 (a), supporting the provider's prima facie finding under CPLR 3212 (g). The insurer also established that it had served a deposition notice and that the examination was warranted under CPLR 3101 (a). The Appellate Term, Second Department, modified the order, insofar as appealed from, to compel a deposition within 60 days and otherwise affirmed, preserving the denial of insurer summary judgment and the provider's prima facie finding.

Reported in New York Official Reports at Jamaica Med. Plaza, P.C. v Interboro Ins. Co. (2013 NY Slip Op 50475(U))

[*1]

Jamaica Med. Plaza, P.C. v Interboro Ins. Co.

2013 NY Slip Op 50475(U) [39 Misc 3d 131(A)]

Decided on March 29, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 29, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-1992 K C.

Jamaica Medical Plaza, P.C. as Assignee of VALERIE SHEAFE-DUBERRY, Respondent, —
against
Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 4, 2011. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an examination before trial and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an
examination before trial is granted and the examination shall be held within 60 days of
the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that “the dated correspondence are timely, valid and that these facts [*2]have been proved prima facie,” and for an order compelling plaintiff to appear for an examination before trial (EBT). Plaintiff cross-moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case. The Civil Court “granted” both motions to the extent of finding that the “only issues remaining for trial related to the medical necessity of the services provided and . . . if the billing was in accordance with the New York State Workers’ Compensation Fee Schedule.” Defendant appeals, as limited by its brief, from so much of the order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, an order compelling plaintiff to appear for an EBT and granted the branch of plaintiff’s cross motion seeking a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

Plaintiff submitted an affirmation by its treating physician which was sufficient to raise triable issues of fact as to the medical necessity of the services rendered (see Alur Med. Supply, Inc. v GEICO Ins. Co., 31 Misc 3d 126[A], 2011 NY Slip Op 50438[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and as to whether the fees charged were in accordance with the Workers’ Compensation fee schedule. Consequently, the branch of defendant’s motion seeking summary judgment was properly denied. However, the branch of defendant’s motion seeking an order compelling plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]). Defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s defense.

With respect to the Civil Court’s finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case, we conclude, contrary to defendant’s contention, that the affidavit by plaintiff’s billing and collection department administrator was sufficient to establish that the claim forms annexed to plaintiff’s cross motion were admissible as proof of the acts, transactions, occurrences, or events recorded therein, pursuant to CPLR 4518 (a) (see Matter of Carothers v GEICO Indem. Co., 79 AD3d 864 [2010]; Art of Healing Medicine, P .C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT is granted upon the terms set forth above.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: March 29, 2013

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.

Lack of medical necessity

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

This decision: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held the treating physician's affirmation raised triable issues of fact as to the medical necessity of the services, so the insurer's summary judgment motion was properly denied.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followed

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Claimant's prima facie case on motions

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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)

Upheld the CPLR 3212 (g) finding that the provider established its prima facie case, holding its billing administrator's affidavit sufficient to make the claim forms admissible as business records under CPLR 4518 (a).

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, 513 (this one included) are in the same category.

Proving a fee schedule defense

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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 treating physician's affirmation raised a triable issue whether the fees charged complied with the workers' compensation fee schedule, so the insurer's summary judgment motion was properly denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 285 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.

Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U)) FollowedThe insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
Matter of Carothers v GEICO Indem. Co. (2010 NY Slip Op 09256) FollowedThe provider's billing witness failed to establish a business-records foundation for claim forms merely printed and mailed by the billing company.
Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.

Cited by

Tsatskis v Interboro Mut. Ins. Co. (2015 NY Slip Op 51891(U))An insurer may depose a provider on a preserved medical-necessity defense without first showing inadequate written discovery responses.

Similar decisions

Jamaica Dedicated Med. Care, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50259(U))The provider failed to rebut the insurer's IME report establishing lack of medical necessity for the services rendered.
Jj & R Chiropractic, P.C. v Interboro Mut. Indem. Ins. (2017 NY Slip Op 51201(U))The provider's deposition noncompliance warranted testimony preclusion rather than dismissal within the motion court's discretion.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
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.
J.C. Healing Touch Rehab, P.C. v American Tr. Ins. Co. (2016 NY Slip Op 50033(U))The provider's verification-mailing proof raised a factual issue on prematurity, but its own summary judgment proof was deficient.