June 1, 2005

Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50856(U))

https://www.beynensonlaw.com/case-law/triboro-chiropractic-acupuncture-p-l-l-c-v-new-york-cent-mut-fire-ins-co-2005-nyslipop-50856u/

Court: Appellate Term, Second Department
Decided: June 1, 2005
Citation: 2005 NY Slip Op 50856(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 3 later decisions (see Cited by)
Issues: Timeliness and preclusion Fee schedule
Legal questions: Claimant's prima facie case on motions · Proving a fee schedule defense (see the maps)

Cite as

Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 2005 NY Slip Op 50856(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2005)

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 obtained partial summary judgment on three untimely denied claims; timely fee schedule denials raised triable issues on the rest. The provider established submission of its claims and overdue payment under Insurance Law § 5106 (a). The insurer failed to pay or deny three claims within 30 days under 11 NYCRR 65.15 (g) (3), now 11 NYCRR 65-3.8 (c), precluding defenses to those claims. The remaining claims were timely denied as improperly no-fault rated and exceeding the workers' compensation fee schedule. The Appellate Term, Second Department, modified the order to award partial summary judgment, remanded for interest and attorney fees on that award, and left the remaining claims for further proceedings.

Reported in New York Official Reports at Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50856(U))

[*1]

Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co.

2005 NYSlipOp 50856(U)

Decided on June 1, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: June 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT : PESCE, P.J., PATTERSON and BELEN, JJ.
2004-1009 Q C

Triboro Chiropractic and Acupuncture P.L.L.C. a/a/o Andre Vincent, Appellant,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiff from so much of an order of the Civil Court, Queens County (J. Golia, J.), entered January 12, 2004, as denied its motion for summary judgment. Order unanimously modified by providing that plaintiff’s motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $4,117.18 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the facts and the amount of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Inasmuch as defendant failed to pay or deny claims in the sums of $1,800, $1,588.44 and $728.74 within the 30-day statutory period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it is precluded from raising most defenses with respect thereto (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 [*2]NY2d 274, 282 [1997]).
The remaining claims were timely denied on the ground that the bills submitted were “not properly no-fault rated” and that the fees charged were in excess of the Workers’ Compensation fee schedule. Such defenses raise triable issues of fact warranting the denial of plaintiff’s motion for summary judgment as to said claims.

Accordingly, partial summary is granted plaintiff in the sum of $4,117.18 and the matter is remanded to the court below for a calculation of the statutory interest and an
assessment of attorney’s fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: June 01, 2005

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider established prima facie entitlement by proof it submitted claims and payment was overdue, leading to partial summary judgment on the untimely denied claims.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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 (rules on the question, but another ground decided the case)

Held the timely fee schedule and rating denials raised triable issues of fact, so the provider's motion was denied as to those claims.

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

Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.

Cited by

A label shows how the later decision treated this one.

A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U)) FollowedA billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
Doctor of Medicine in the House, P.C. v Allstate Ins. Co. (2013 NY Slip Op 23357) FollowedThe physical medicine fee schedule's eight-unit daily reimbursement limit applies to each provider individually.
Bath Med. Supply, Inc. v Allstate Indem. Co. (2006 NY Slip Op 52273(U))The insurer's mailing affidavit was inadmissible under CPLR 2309 (c), precluding its medical-necessity defense for lack of timely denial proof.
Careplus Med. Supply Inc. v Allstate Ins. Co. (2005 NYSlipOp 51526(U))The former medical-equipment fee schedule caps reimbursement at 150 percent of cost and does not use local prevailing rates.

Similar decisions

Triboro Chiropractic v New York Cent. Mut. Fire Ins. Co. (2005 NY Slip Op 50110(U))An assignor's failure to attend IMEs requested before claim submission rebuts the claim forms' presumption of medical necessity.
Triboro Chiropractic & Acupuncture P.L.L.C. v Kemper Auto & Home Ins. Co. (2004 NY Slip Op 50905(U))The insurer's letters announcing delayed bills did not request verification or toll its time to pay or deny the provider's claims.
Triboro Chiropractic & Acupuncture P.L.L.C v Allstate Ins. Co. (2006 NY Slip Op 51740(U))The insurer failed to support its concurrent-care fee defense or prove mailing of the pre-claim IME scheduling letters.
Triboro Chiropractic & Acupuncture v Elec. Ins. Co. (2004 NY Slip Op 50215(U))The insurer's peer reviews and the assignor's apparent denial of receiving acupuncture raised factual issues barring partial summary judgment.
Triboro Chiropractic & Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51175(U))The provider lacked admissible billing proof, while the insurer failed to establish its IME nonappearance and fee-schedule defenses.