June 10, 2022
Sutphin Complete Med. Care, P.C. v Tri-State Consumer Ins. Co. (2022 NY Slip Op 50586(U))
https://www.beynensonlaw.com/case-law/sutphin-complete-med-care-p-c-v-tri-state-consumer-ins-co-2022-ny-slip-op50586u/
- Decided
- June 10, 2022
- Citation
- 2022 NY Slip Op 50586(U)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)
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.
Reported in New York Official Reports at Sutphin Complete Med. Care, P.C. v Tri-State Consumer Ins. Co. (2022 NY Slip Op 50586(U))
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
against
Tri-State Consumer Insurance Company, Appellant.
Law Office of Jason Tenenbaum, P.C. (Shaaker Bhuiyan of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered December 10, 2019. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon bills numbered one through five and seven through nine.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon bills numbered one through five and seven through nine.[FN1] Those branches of defendant’s motion had sought summary judgment on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and, alternatively, as to bill number eight, for services rendered on December 30, 2011, on the ground that plaintiff sought to recover an amount in excess of the amount permitted by the workers’ compensation fee schedule.
The affidavit defendant submitted in support of its motion for summary judgment failed to sufficiently establish that the IME scheduling letters had been timely generated and properly addressed pursuant to the standard practices and procedures of the IME scheduling vendor (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Moreover, the affirmations from the doctors who were scheduled to perform the IMEs did not [*2]establish that they possessed personal knowledge of the nonappearance of plaintiff’s assignor for the IMEs. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 52 Misc 3d 128[A], 2016 NY Slip Op 50922[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).
Furthermore, contrary to defendant’s contention, defendant is not entitled to summary judgment dismissing so much of the complaint as sought to recover upon bill number eight as defendant failed to establish its defense that the amount charged exceeded the amounts permitted by the workers’ compensation fee schedule (see Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY, 71 Misc 3d 131[A], 2021 NY Slip Op 50445[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).
Accordingly, the order, insofar as appealed from, is affirmed.
ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022
Footnotes
Footnote 1:The branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on the sixth bill, for $80.20 for date of service December 7, 2011, was granted.
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.
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's affidavit failed to establish that the IME scheduling letters were timely generated and properly addressed under the scheduling vendor's standard practices.
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.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Held the IME no-show defense unproved because the scheduling letters' mailing was not established and the doctors' affirmations showed no personal knowledge of the nonappearances.
Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.
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 (rules on the question, but another ground decided the case)
Held the insurer failed to establish that the amount charged on one bill exceeded the workers' compensation fee schedule, so summary judgment on that alternative ground was denied.
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.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604)An insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
- Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co. (2016 NY Slip Op 50922(U))The insurer failed to establish the assignor's IME nonappearance or receipt of notice of both scheduled IMEs. The provider appealed from summary judgment dismissing its assigned no-fault claims.
- Jodi Jacobs, D.C., PLLC v Global Liberty Ins. Co. of NY (2021 NY Slip Op 50445(U))The insurer proved IME nonappearances and nonreceipt of one claim, but failed to establish its fee-schedule defense to a partially paid claim.
- Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U))The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
Similar decisions
- Metropolitan Surgical Servs., P.C. v 21st Century Ins. Co. (2022 NY Slip Op 50606(U))An insurer need not comply with 11 NYCRR 65-3.6 (b) for IMEs scheduled before it receives the claim at issue.
- Sutphin Complete Med. Care v Hereford Ins. Co. (2016 NY Slip Op 50763(U))The record raised triable issues about whether the assignor failed to appear for scheduled IMEs. The insurer had established proper mailing of the IME notices to the assignor and the assignor's attorney, but that showing did not resolve nonappearance.
- Comprehensive Care Physical Therapy, P.C. v Allstate Ins. Co. (2018 NY Slip Op 50848(U))The insurer failed to establish timely mailing of denials supporting its IME nonappearance and fee schedule defenses.
- Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2016 NY Slip Op 50307(U))The insurer failed to establish IME nonappearance, excessive fees, duplicate billing, or nonreceipt, and timely claim submission remained disputed.
- Parisien v Tri State Consumers Ins. Co. (2022 NY Slip Op 50920(U))The provider obtained summary judgment on a claim denied for missing therapy instructions because the insurer sought no verification.