September 19, 2016

TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U))

https://www.beynensonlaw.com/case-law/tam-med-supply-corp-v-21st-century-ins-co-2016-ny-slip-op51358u/

Court: Appellate Term, Second Department
Decided: September 19, 2016
Citation: 2016 NY Slip Op 51358(U) · 53 Misc 3d 129(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Fee schedule
Legal questions: Proving a fee schedule defense (see the maps)

Cite as

TAM Med. Supply Corp. v 21st Century Ins. Co., 53 Misc 3d 129(A), 2016 NY Slip Op 51358(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 that the provider's charges for supplies exceeded the workers' compensation fee schedule. In this action for assigned no-fault benefits, the insurer sought summary judgment dismissing the complaint on the ground that it had fully paid the provider under that schedule. The Civil Court, Queens County, granted the motion. On the provider's appeal, the Appellate Term, Second Department, found the insurer's motion papers insufficient to establish excessive charges as a matter of law, following Rogy Med., P.C. v Mercury Cas. Co. It reversed the order and denied the insurer's motion.

Reported in New York Official Reports at TAM Med. Supply Corp. v 21st Century Ins. Co. (2016 NY Slip Op 51358(U))

[*1]

TAM Med. Supply Corp. v 21st Century Ins. Co.

2016 NY Slip Op 51358(U) [53 Misc 3d 129(A)]

Decided on September 19, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 19, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2566 Q C

TAM Medical Supply Corp., as Assignee of CASSANDRA AMBROISSE, Appellant,
against
21st Century Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered November 18, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the supplies at issue in accordance with the workers’ compensation fee schedule. The Civil Court granted defendant’s motion.

Plaintiff correctly argues on appeal that defendant’s motion papers failed to establish, as a matter of law, that the fees that had been charged by plaintiff exceeded the amounts 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 Dept, 2d, 11th & 13th Jud Dists 2009]). Therefore, defendant was not entitled to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: September 19, 2016

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.

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's papers failed to establish as a matter of law that the supply charges exceeded the workers' compensation fee schedule, so it was not entitled to summary judgment.

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

Of the 285 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.

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.

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