April 9, 2004

King’S Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50280(U))

https://www.beynensonlaw.com/case-law/kings-med-supply-v-allstate-ins-co-2004-ny-slip-op-50280u/

Court: Appellate Term, Second Department
Decided: April 9, 2004
Citation: 2004 NY Slip Op 50280(U)
Posture: Summary judgment
Outcome: Split result
Issues: Timeliness and preclusion Fee schedule Assignments and standing
Legal questions: Proving a fee schedule defense · Claimant's prima facie case on motions · Challenging the assignment of benefits (see the maps)

Cite as

King'S Med. Supply v Allstate Ins. Co., 2004 NY Slip Op 50280(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 obtained partial summary judgment on claims denied after 30 days, but disputed equipment costs barred judgment on timely denied claims. The Appellate Term, Second Department, modified the order denying the provider's motion and remanded for calculation of statutory interest and attorney fees under Insurance Law § 5106 (a) and former 11 NYCRR 65.15 (h) (1) and 65.17 (b) (6). The late denials precluded the insurer's proffered defenses under former 11 NYCRR 65.15 (g) (3). For the remaining claims, 11 NYCRR 68, Appendix 17-C, Part E (b) (1) limited reimbursement to 150% of documented equipment cost, and factual questions remained whether the provider actually paid the invoiced prices. The assignments were proper and conferred standing.

Reported in New York Official Reports at King’S Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50280(U))

[*1]

King’s Med. Supply v Allstate Ins. Co.

2004 NY Slip Op 50280(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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., ARONIN and PATTERSON, JJ.
NO. 2002-1591 K C

KING’S MEDICAL SUPPLY INC. a/a/o B. Guevarra-Francis, Terrence Gregory, Jorge Sanchez, Andy Janash, Eddie Capos, Anthony Harris, Jorge Toledo, Gerthie Rivera, Edward Perez, Andrew Nagel, Jeremy Corenzwit, Jarrod Williams, Evelyn Ayala, Rashid Anjum, Therese Calderon, Dorothy Kelly and Mark Pigatt, Appellant,
against
ALLSTATE INSURANCE COMPANY, Respondent.

Appeal by plaintiff from an order of the Civil Court, Kings County

(D. Kurtz, J.), entered on September 25, 2002, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $10,002.86 and by remanding the matter to the
court below for further proceedings in accordance with the decision herein; as so modified, affirmed without costs.

Plaintiff sues to recover the sum of $13,573.32 representing first-party no-fault benefits for medical supplies it provided to the injured assignors. In our opinion, plaintiff’s motion for summary judgment should have been granted to the extent of awarding plaintiff partial summary judgment in the sum of $10,002.86, representing those claims which were not denied by defendant until more than 30 days after plaintiff had submitted them (11 NYCRR 65.15 [g] [3]) since, as to said claims, the insurer is precluded from raising the proffered defenses [*2](Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274; Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). Inasmuch as plaintiff has established a prima facie case, it was entitled to partial summary judgment with respect thereto (see Amaze Med. Supply Inc. v Eagle Ins. Co., supra) including statutory interest and attorney’s fees (see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641). The matter is accordingly remanded to the court below for a calculation of such interest and attorney’s fees (see Insurance Law § 5106 [a]; former 11 NYCRR 65.15 [h] [1];
65.17 [b] [6]).

However, plaintiff’s motion for summary judgment was properly denied as to the remaining claims which defendant had timely denied in accordance with the
Insurance Regulations. Insurance Regulation 11 NYCRR 68, Appendix 17-C, Part E (b) (1) provides:

“(b)(1) For medical equipment and supplies (e.g. TENS units, soft cervical collars) provided by a physician or medical equipment supplier, the maximum permissible charge is 150% of the documented cost of the equipment to the provider.”

Issues of fact exist as to whether plaintiff may recover the remaining amount sought, including whether plaintiff actually paid the prices listed in the invoices for the subject supplies so as to entitle it to bill defendant at a rate of 150% thereof.
Finally, it is noted that the assignments were proper and plaintiff had standing to sue (Rehab. Med. Care of N.Y. v Travelers Ins. Co., 188 Misc 2d 176).
Decision Date: April 09, 2004

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.

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

Held triable issues existed on the timely denied supply claims under the 150%-of-cost rule, including whether the provider actually paid the invoice prices, so summary judgment was denied on those claims.

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.

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)

Held the provider established its prima facie case on the claims denied more than 30 days after submission and, the insurer being precluded from its defenses, granted it partial summary judgment on them.

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, 513 (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

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

This decision: On the merits, the assignment or the claimant's showing is adequate, or the alleged defect is not a defect (rules on the question, but another ground decided the case)

Noted that the assignments were proper and the supplier had standing to sue.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decision

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 31 (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.

Similar decisions

King’S Med. Supply v Progressive Ins. (2004 NY Slip Op 50311(U))A provider cannot invoke preclusion to avoid a defense raised by its own proof that billed equipment was not prescribed.
Careplus Med. Supply, Inc v Allstate Indem. Co. (2005 NY Slip Op 51527(U))The insurer improperly reduced equipment claims to local prevailing rates under a fee schedule allowing 150 percent of cost.
Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51525(U))The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.
King’s Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 50451(U))The insurer's failure to send a timely follow-up verification request ended the toll and precluded its verification defense.
Amaze Med. Supply v Allstate Ins. Co. (2004 NY Slip Op 50211(U))The provider established entitlement to summary judgment by proving submission of complete claims that were not paid or denied within 30 days.