August 6, 2015

Neomy Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51237(U))

https://www.beynensonlaw.com/case-law/neomy-med-p-c-v-praetorian-ins-co-2015-ny-slip-op51237u/

Court: Appellate Term, Second Department
Decided: August 6, 2015
Citation: 2015 NY Slip Op 51237(U) · 48 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Timeliness and preclusion Fee schedule
Legal questions: Proof of mailing · Proving a fee schedule defense (see the maps)

Cite as

Neomy Med., P.C. v Praetorian Ins. Co., 48 Misc 3d 140(A), 2015 NY Slip Op 51237(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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's summary judgment motion was denied for lack of proof of timely denial mailing and fees exceeding the applicable schedule. The Appellate Term, Second Department, affirmed denial of dismissal of both providers' claims. For one provider's bills, timely and proper denial mailing was unproved; for the other's, the insurer did not establish charges exceeding the workers' compensation fee schedule, under the cited precedents.

Reported in New York Official Reports at Neomy Med., P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51237(U))

[*1]

Neomy Med., P.C. v Praetorian Ins. Co.

2015 NY Slip Op 51237(U) [48 Misc 3d 140(A)]

Decided on August 6, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-509 K C

Neomy Medical, P.C. and PERFECT POINT ACUPUNCTURE, P.C. as Assignees of MICHAL WILLIAMS, Respondents,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered April 1, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

With respect to the bills sued upon by Neomy Medical, P.C., defendant failed to demonstrate that the denial of claim forms had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). With respect to the bills sued upon by Perfect Point Acupuncture, P.C., defendant failed to establish as a matter of law that the fees charged exceeded the amount set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). In view of the foregoing, the Civil Court properly denied defendant’s motion for summary judgment dismissing the complaint. Accordingly, the order is affirmed.

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

Decision Date: August 06, 2015

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.

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 insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to demonstrate that its denials of one provider's bills had been timely and properly mailed, so summary judgment on those bills was denied.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.

Proving a fee schedule defense

Open the full map

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 the insurer failed to establish as a matter of law that the acupuncture provider's fees exceeded the workers' compensation fee schedule, so its motion was properly denied.

Excess shownNot established; openDefense rejectedSplit by chargeThis decisionCites it or cited by itCited or followed

Of the 284 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.

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.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U)) FollowedThe insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.

Similar decisions

Neomy Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 51252(U))The insurer established timely denials and unrebutted defenses of lack of medical necessity and charges exceeding the fee schedule.
Neomy Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51653(U))The insurer proved timely IME notices and denials and the assignor's nonappearance, while the provider failed to raise a factual issue.
Neomy Med., P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50769(U))The provider's physician failed to rebut the insurer's peer review because the affidavit did not specifically justify the additional studies.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.
Five S & A Rehab Pt, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51724(U))The insurer's affirmed IME report established lack of medical necessity, and the provider failed to rebut that showing.