June 14, 2024

Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))

https://www.beynensonlaw.com/case-law/pak-hong-sik-md-med-care-p-c-v-mid-century-ins-co-2024-ny-slip-op50804u/

Court: Appellate Term, Second Department
Decided: June 14, 2024
Citation: 2024 NY Slip Op 50804(U) · 83 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Fee schedule Policy issues
Legal questions: Exhaustion of policy limits (see the maps)

Cite as

Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co., 83 Misc 3d 130(A), 2024 NY Slip Op 50804(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024)

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 challenge to the insurer's fee-schedule defense was raised for the first time on appeal and was not considered. The Appellate Term, Second Department, affirmed summary judgment dismissing the provider's assigned no-fault claims. Civil Court had granted the insurer's motion on policy-exhaustion and fee-schedule grounds. The insurer failed to lay a sufficient foundation under CPLR 4518 (a) for its payment log to prove that the listed payments to the provider had been made. Nevertheless, the provider's challenge to the alternative fee-schedule ground was unpreserved, and its remaining contention lacked merit.

Reported in New York Official Reports at Pak Hong Sik, MD, Med. Care, P.C. v Mid-Century Ins. Co. (2024 NY Slip Op 50804(U))

[*1]

Pak Hong Sik, MD, Medi. Care, P.C. v Mid-Century Ins. Co.

2024 NY Slip Op 50804(U) [83 Misc 3d 130(A)]

Decided on June 14, 2024

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2024

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

PRESENT: : WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
2023-647 RI C

Pak Hong Sik, MD, Medical Care, P.C., as Assignee of Israel Perez, Jr., Appellant,

against

Mid-Century Insurance Company, Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. The order granted defendant’s motion for summary judgment dismissing the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) which granted defendant’s motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.

Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 NY2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc 3d 145[A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 AD3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]) and we do not consider it.

Plaintiff’s remaining contention lacks merit.

Accordingly, the order is affirmed.

TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 14, 2024

Legal questions

A question 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.

Exhaustion of policy limits

Open the full map

Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Insurer's proof did not establish exhaustion (or compliance with 65-3.15); defense fails on this record (rules on the question, but another ground decided the case)

Agreed the insurer failed to lay a business-record foundation for the payment log relied on to prove exhaustion, but dismissal stood on the unchallenged fee-schedule ground.

Limits exhaustedCoverage left when dueExhaustion not provedTriable issue / hearingDefense not heardThis decisionCites it or cited by itCited or followed

Of the 68 decisions on this question in the Second Department courts and the Court of Appeals, 34 (this one included) are in the same category.

Cited in this decision

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

JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co. (2024 NY Slip Op 50203(U)) FollowedThe insurer failed to prove policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
Healthplus Surgery Ctr., LLC v American Tr. Ins. Co. (2022 NY Slip Op 02252)The insurer proved fee-schedule overbilling but failed to support its medical-necessity defense with a factual basis and medical rationale.

Similar decisions

Metro Pain Specialists, P.C. v Mid-Century Ins. Co. (2023 NY Slip Op 51394(U))The insurer's affidavits established that the unpaid portion of the provider's claim exceeded the workers' compensation fee schedule.
PFJ Med. Care, P.C. v Hereford Ins. Co. (2021 NY Slip Op 50637(U))The insurer's summary judgment motion asserting that it had issued no automobile policy covering the accident was granted on appeal.
Merrick Med., P.C. v A Cent. Ins. Co. (2019 NY Slip Op 51264(U))The insurer established proper fee schedule payment of one claim and lack of medical necessity for the remaining claims.
Pain Med., PLLC v Tri State Consumer Ins. Co. (2022 NY Slip Op 50567(U))The insurer's appeal from the denial of fee-schedule summary judgment was dismissed because the insurer was not aggrieved.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50946(U))The insurer proved outstanding verification and proper fee-schedule reductions; a challenge to mailing of payment was unpreserved.