October 27, 2017

Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51450(U))

https://www.beynensonlaw.com/case-law/renelique-v-american-tr-ins-co-2017-ny-slip-op-51450u/

Court: Appellate Term, Second Department
Decided: October 27, 2017
Citation: 2017 NY Slip Op 51450(U) · 57 Misc 3d 145(A)
Posture: Other motion
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

Renelique v American Tr. Ins. Co., 57 Misc 3d 145(A), 2017 NY Slip Op 51450(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

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.

A motion for leave to reargue cannot introduce facts omitted from the original motion. The insurer initially sought summary judgment based on a fee-schedule reduction for CPT code 20553, supplying the relative value but neither the conversion factor nor an explanation. On reargument, it first supplied the conversion factor and asserted a calculation supported the reduction, without identifying any fact or law overlooked or misapprehended. Under CPLR 2221 (d) (2), those new facts were improper on reargument. The insurer neither sought renewal nor explained the omission as required by CPLR 2221 (e) (3). The Appellate Term, Second Department, reversed, denied reargument and reinstated the denial of the insurer's summary judgment motion.

Reported in New York Official Reports at Renelique v American Tr. Ins. Co. (2017 NY Slip Op 51450(U))

[*1]

Renelique v American Tr. Ins. Co.

2017 NY Slip Op 51450(U) [57 Misc 3d 145(A)]

Decided on October 27, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
NO. 2014-1842 Q C

Pierre Jean Jacques Renelique, as Assignee of Linda Thomas, Appellant,
against
American Transit Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 22, 2014. The order granted defendant’s motion for leave to reargue its prior motion for summary judgment dismissing the complaint, which had been denied in an order of the same court entered May 23, 2014, and, upon reargument, in effect, vacated the order dated May 23, 2014, and thereupon granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order entered July 22, 2014 is reversed, with $30 costs, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Defendant alleged that it had reduced the payment for CPT Code 20553 in accordance with the fee schedule, attaching the page of the fee schedule setting forth the appropriate relative value. However, it did not provide the conversion factor or provide an explanation for the reduction. By order entered May 23, 2014, the Civil Court denied defendant’s motion. Defendant subsequently moved for leave to reargue its prior motion and, upon reargument, for summary judgment dismissing the complaint. By order entered July 22, 2014, the Civil Court granted reargument and, upon reargument, in effect, vacated the May 23, 2014 order and granted defendant’s motion for summary judgment dismissing the complaint.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221 [d] [2]). Here, defendant did not allege that the Civil Court had overlooked or misapprehended any matters of fact or law in denying its motion for summary judgment. Rather, defendant’s attorney alleged, for the first [*2]time, that the fee schedule reduction had been based upon a calculation, and attached, for the first time, the page of the fee schedule setting forth the appropriate conversion factor. As this is not a proper basis for seeking leave to reargue, and defendant did not seek leave to renew its prior motion or provide an explanation for its failure to present the relevant facts on its prior motion (see CPLR 2221 [e] [3]), defendant’s motion for leave to reargue should have been denied.

Accordingly, the order entered July 22, 2014 is reversed, defendant’s motion for leave to reargue is denied, and the order entered May 23, 2014 denying defendant’s motion for summary judgment dismissing the complaint is reinstated.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 27, 2017

Cited by

Demas v State Farm Fire & Cas. Co. (2022 NY Slip Op 50250(U))The insurer failed to justify recoding cupping or applying a vasopneumatic-device valuation under the fee schedule.
Balance Art Acupuncture P.C. v MVAIC (2022 NY Slip Op 22061)MVAIC established proper payment at chiropractic acupuncture rates, and the provider failed to show that physician rates should apply.
Barakat P.T., P.C. v Progressive Ins. Co. (2021 NY Slip Op 50342(U))The insurer established a timely deductible denial even though it failed to substantiate its fee-schedule reduction.
Medalliance Med. Health Servs. v Travelers Prop. Cas. Ins. Co. (2021 NY Slip Op 50737(U))The insurer's misaddressed verification requests failed to toll the 30-day period to pay or deny the provider's claims.

Similar decisions

Renelique v Allstate Ins. Co. (2017 NY Slip Op 51141(U))The insurer established proper application of the workers' compensation fee schedule to CPT code 20553, and the provider did not rebut its showing.
American Tr. Ins. Co. v Barakat PT PC (2026 NY Slip Op 01751)The insurer failed to justify renewal or show grounds for reargument of the order striking its complaint for discovery noncompliance.
Renelique v Tri State Consumers Ins. Co. (2016 NY Slip Op 50866(U))The provider's challenge to the specificity of the insurer's fee schedule denial failed, and its calculation argument was unpreserved.
Renelique v State-Wide Ins. Co. (2016 NY Slip Op 50095(U))A default declaratory judgment precludes a no-fault recovery that would impair the rights established by that judgment.
Renelique v 21st Century Ins. Co. (2021 NY Slip Op 50521(U))The provider's request to correct its summons under CPLR 2001 was unpreserved because it was not raised in opposition to dismissal.