June 7, 2019

Masigla v 21st Century Ins. Co. (2019 NY Slip Op 50938(U))

https://www.beynensonlaw.com/case-law/masigla-v-21st-century-ins-co-2019-ny-slip-op-50938u/

Court: Appellate Term, Second Department
Decided: June 7, 2019
Citation: 2019 NY Slip Op 50938(U)
Posture: Summary judgment
Outcome: Split result
Issues: Policy issues Fee schedule Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Masigla v 21st Century Ins. Co., 2019 NY Slip Op 50938(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019)

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 failed to establish through admissible evidence that Florida law applied or that the policy limits were exhausted. Its affidavits did not establish the payment log's admissibility under CPLR 4518. The Appellate Term, Second Department, modified the order to deny the insurer summary judgment on the third, fifth and seventh causes of action. The provider also lacked proof that those claims were untimely denied or that timely denials were conclusory, vague or legally meritless. Dismissal of the first, second, fourth and sixth causes of action was affirmed because the insurer established that the workers' compensation fee schedule precluded payment for those services and the provider raised no factual issue. New appellate arguments were unpreserved; denial of the provider's motion was affirmed.

Reported in New York Official Reports at Masigla v 21st Century Ins. Co. (2019 NY Slip Op 50938(U))

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

Maria S. Masigla, P.T., as Assignee of Destine, Wooselie, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Sharon A. Brennan of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied; as so modified, the order 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. With respect to the third, fifth and seventh causes of action, defendant claimed that the limits of the Florida insurance policy involved herein had been exhausted prior to defendant’s receipt of the claims underlying those three causes of action. With respect to the first, second, fourth and sixth causes of action, which constituted the remaining causes of action, defendant claimed that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule.

Defendant failed to establish with admissible evidence that Florida law applies and, thus, [*2]that the amount available for no-fault reimbursement under the present policy was limited to $10,000. Moreover, even if defendant had established that Florida law applies, defendant relied upon a payment log to demonstrate that the policy limits had been exhausted; however, the affidavits submitted by defendant failed to establish that the annexed payment log constituted admissible evidence of exhaustion (see CPLR 4518; People v Kennedy, 68 NY2d 569, 579-580 [1986]; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331 [2009]; Speirs v Not Fade Away Tie Dye Co., 236 AD2d 531 [1997]; Charles Deng Acupuncture, P.C. v 21st Century Ins. Co., 61 Misc 3d 154[A], 2018 NY Slip Op 51815[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]). Consequently, defendant failed to make a prima facie showing of its entitlement to summary judgment dismissing the third, fifth and seventh causes of action.

The evidence proffered by defendant in support of the branches of its cross motion seeking summary judgment dismissing the first, second, fourth and sixth causes of action was sufficient to demonstrate that plaintiff was not entitled to be paid for those services pursuant to the workers’ compensation fee schedule. In opposition, plaintiff failed to raise a triable issue of fact. Plaintiff’s arguments which are made for the first time on appeal are not properly before us (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]), and we decline to consider them.

The branches of plaintiff’s motion seeking summary judgment on the third, fifth and seventh causes of action were properly denied, as the proof submitted by plaintiff failed to establish that those claims had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms 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 Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the third, fifth and seventh causes of action are denied.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 07, 2019

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.

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's proof failed to show the remaining claims had not been timely denied or that the timely denials were conclusory, vague or without merit, so its summary judgment motion was properly denied.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 247 (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 proved the billed amount exceeded the applicable fee schedule

Held the insurer's evidence showed the provider was not entitled to payment for four causes of action under the workers' compensation fee schedule, and the provider raised no triable issue, so those claims were dismissed.

Excess shownNot established; openDefense rejectedSplit by chargeThis decision

Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 146 (this one included) are in the same category.

Cited in this decision

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

Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51815(U))The insurer failed to prove that Florida law applied or that admissible payment records established exhaustion of policy limits.
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)The 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))The provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.

Similar decisions

Masigla v Travelers Ins. Co. (2017 NY Slip Op 51794(U))The insurer's attorneys' affirmations established the provider's EUO nonappearance, and its proof established proper mailing of denials.
Compas Med., P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51228(U))The insurer failed to establish a timely denial of the fourth claim but proved full fee-schedule payment of the first and fifth claims.
Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))The insurer's proof raised a presumption of proper mailing of the denials supporting its late-accident-notice defense.
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.
Masigla v ELRAC, Inc. (2017 NY Slip Op 51868(U))The defendant's summary judgment dismissal of the third, fifth and seventh causes of action was upheld on a presumption of timely denial mailing.