American Tr. Ins. Co. v Leon, 2013 NY Slip Op 08124 (1st Dept. 2013)
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
“Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.
Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins., 31 Misc 3d 128[A], 2011 N.Y. Slip Op. 50473[U] [App Term 1st Dept 2011]).
Attendance at a medical examination is a condition of coverage. Accordingly, there is no[*2]requirement that the claim denial be timely made (see American Transit Ins. Co. v. Lucas, __ AD3d __, 2013 NY Slip Op 07273; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 ).”
By the way, this case now effectively overrules Infinity Health Prods., Ltd. v Redland Ins. Co., 2013 NY Slip Op 50751(U)(App. Term 2d Dept. 2013)(“ Furthermore, there is nothing in the record to suggest that plaintiff’s assignor was represented by the attorney to whom the IME scheduling letters were also sent. Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled.”)
Lotus Acupuncture, P.C. v MVAIC, 2013 NY Slip Op 51925(U)(App. Term 1st Dept. 2013)
“The affidavits submitted by defendant in support of its motion for summary judgment established that defendant timely denied (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 ) plaintiff’s claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker’s compensation fee schedule. In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant’s mailing of the denial or the calculation of the fee. Therefore, defendant’s motion for summary judgment dismissing the claim – which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule – should have been granted.”
This case does not seem to stand for much since we do not know if MVAIC paid the chiro or physician rate for the acupuncture services at issue.
Flatbush Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2013 NY Slip Op 51880(U)(App. Term 2d Dept. 2013)
“On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, that defendant lacked justification for its EUO requests, and that defendant’s motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant’s EUO requests.”
“Furthermore, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard”
This case is significant because now proof of “objective standards” will be deemed waived if a provider or EIP does not respond to EUO demands. In District Nassau, my research has divined that those judges requires”objective standards” as part of a prima facie showing. That hopefully will end.
Eagle Surgical Supply, Inc. v GEICO Ins. Co., 2013 NY Slip Op 51862(U)(App. Term 2d Dept. 2013)
“The abbreviated record now before us provides no justification for the trial court’s sua sponte determination precluding the defendant insurer from offering medical evidence in support of its defense of lack of medical necessity, based on its apparent failure to obtain a HIPAA-compliant authorization from plaintiff’s assignor. Even assuming, without deciding, that defendant is a “covered entity” subject to HIPAA (see 45 CFR § 160.103), an issue not addressed below, defendant should have been given the opportunity to establish that it was entitled to adduce the assignor’s medical records without the need of a HIPAA authorization pursuant to the “payment” and “health care operations” exceptions set forth in the governing federal regulations (see 45 CFR 164.506; 45 CFR 164.501; see also Ops General Counsel NY Ins. Dept. No. 03-07-10 [July 2003]).”
I think this will put an end to certain judges delaying no-fault trials in a certain venue (for HIPPA reasons) with a certain judge at a certain courthouse located between westchester county, new york county and queens county. That still does not mean that another reason for delaying these trials will not come to fruition.
Akita Med. Acupuncture, P.C. v Clarendon Ins. Co., 2013 NY Slip Op 51860(U)(App. Term 1st Dept. 2013)
“The complaint seeks the difference between the amount billed by plaintiff, $120 per session, and the amount paid by the defendant-insurer, $29.30 per session.” (This looks like an old 97780 case)
Defendant’s prima facie entitlement to summary judgment
“[defendant properly limited payment to "charges permissible for similar procedures under schedules already adopted or established by the superintendent" (11 NYCRR 68.5[b]; see Forrest Chen Acupuncture Servs, P.C. v Geico Ins. Co., 54 AD3d 996, 997 ), specifically, the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 ; Ops. Gen. Counsel NY Ins. Dept. No. 04—10—03 [Oct. 2004]).”
Plaintiff failed to raise an issue of fact
“Nor did plaintiff establish or raise a triable issue that the acupuncture work sued for did not constitute a “similar procedure” than the one defendant chose for comparison in arriving at the reimbursement rate.”
Note how the Appellate Term Second Department resolved the issues: “Accordingly, in light of the licensure requirements, we hold, as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services”. Yet, the Court is still allowing Plaintiff’s to present proof to vault Great Wall II. Interesting.
Preferred Mut. Ins. Co. v Donnelly, 2013 NY Slip Op 07283 (4th Dept. 2013)
(1) CPLR 4518 (a) challenge:
“We conclude that plaintiff met its initial burden of establishing that the lead exclusion was properly added to the policy and that notice of the lead exclusion amendment was provided to Donnelly. Contrary to Jackson’s contention, plaintiff submitted evidence in admissible form to support its motion. Although many of the documents appended to the attorney affirmation were not in admissible form (see KOI Med. Acupuncture v State Farm Ins. Co., 16 Misc 3d 1135[A], 2007 NY Slip Op 51705[U], *2; see generally CPLR 4518 [a]), we conclude that the affidavit from plaintiff’s Office Services Supervisor was sufficient to lay a proper foundation for the business records attached thereto (see CPLR 4518 [a]; cf. Unifund CCR Partners v [*2]Youngman, 89 AD3d 1377, 1378, lv denied19 NY3d 803; Palisades Collection, LLC v Kedik, 67 AD3d 1329, 1330-1331; see generally People v Kennedy, 68 NY2d 569, 579-580).”
(2) Mailing challenge:
This is interesting and should find its way in motions where mailing is challenged. Perhaps another dilution in the “art” of mailing litigation, and I would argue a significant lowering of the mailing hurdle
“With respect to the substance of the attachments, we conclude that the documents established as a matter of law that the lead exclusion was properly added to Donnelly’s insurance policy and that Donnelly was notified of that amendment. Although plaintiff did not submit evidence that the notice of the amendment was mailed to Donnelly and Donnelly could not recall receiving the notice, plaintiff submitted evidence in admissible form “of a standard office practice or procedure designed to ensure that items are properly addressed and mailed,” thereby giving rise to a presumption that Donnelly received the notice (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680; see Nocella v Fort Dearborn Life Ins. Co. of N.Y., 99 AD3d 877, 878). Contrary to the contention of Jackson, the evidence submitted by plaintiff established that the “office practice [was] geared so as to ensure the likelihood that [the] notice[s of amendment] . . . [were] always properly addressed and mailed” (Nassau Ins. Co. v Murray, 46 NY2d 828, 830; see Badio v Liberty Mut. Fire Ins. Co., 12 AD3d 229, 229-230; cf. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375). Specifically, the evidence established the procedure used by plaintiff for generating notices whenever an insurance policy was amended, and the documentary evidence established that a notice was generated for Donnelly’s policy during the year in which the lead exclusion was added to the policy. In addition, plaintiff submitted evidence that it placed the notices in envelopes with windows so that the address on the notice was the one used for mailing. The envelopes were then delivered to the mail room, where they were sealed and the appropriate postage was added. Thereafter, the mail was hand delivered to the post office that was located adjacent to plaintiff’s parking lot.”
“While we agree with the dissent that there was no evidence submitted of a practice to ensure that the number of envelopes delivered to the mail room corresponded to the number of envelopes delivered to the post office (see Clark v Columbian Mut. Life Ins. Co., 221 AD2d 227, 228-229; Matter of Lumbermens Mut. Cas. Co. [Collins], 135 AD2d 373, 375; cf. Matter of State-Wide Ins. Co. v Simmons, 201 AD2d 655, 656), we do not deem the absence of such evidence fatal to plaintiff’s motion in light of the detailed description of all of the other office practices geared toward ensuring the likelihood that the notices were always properly addressed and mailed (cf. Hospital for Joint Diseases, 284 AD2d at 375; L.Z.R. Raphaely Galleries v Lumbermens Mut. Cas. Co., 191 AD2d 680, 681-682; Lumbermens Mut. Cas. Co., 135 AD2d at 374-375). Additionally, “[a]s long as there is adequate [evidence from] one with personal knowledge of the regular course of business, it is not necessary to solicit testimony from the actual employee in charge of the mailing” (Lumbermens Mut. Cas. Co., 135 AD2d at 375). Here, plaintiff submitted evidence from someone with personal knowledge concerning the specific procedures used by plaintiff to ensure that the addresses on the envelopes were accurate and concerning the “office procedures relating to the delivery of mail to the post office” (id.). In opposition to the motion, Jackson failed to raise a triable issue of fact “that [the] routine office practice was not followed or was so careless that it would be unreasonable to assume that the notice was mailed” (Nassau Ins. Co., 46 NY2d at 830).”
People v Williams, 2013 NY Slip Op 07636 (4th Dept. 2013)
The Court in Rochester reduced a depraved indifference reckless endangerment charge t0 a misdemeanor when it state that HIV is at best a chronic disease and not the life threatening monster it was when many of us were growing up. Not sure if this is evolution of devolution.
“We further conclude that the grand jury evidence, viewed in the light most favorable to the People (see Jennings, 69 NY2d at 114), also did not establish that defendant’s conduct presented a grave risk of death to the victim (see Penal Law § 120.25; Lynch, 95 NY2d at 247). The victim’s physician, an infectious disease expert, testified that the ability to treat HIV has increased dramatically over the past 15 years, with over 20 different antiviral medications available for treatment. The expert testified that although an HIV positive diagnosis may have been tantamount to a death sentence in the past, with treatment, the prognosis today is “outstanding,” particularly when a patient promptly learns that he or she is infected and seeks treatment. Indeed, the expert testified that patients with HIV who take their medication, eat well, do not smoke, and reduce their alcohol intake can live a “very healthy, normal lifestyle,” and he expected a similar prognosis for the victim. We thus conclude that, under the circumstances of this case, the People failed to establish that defendant’s reckless conduct posed a grave or “very substantial” risk of death to the victim (People v Roe, 74 NY2d 20, 24). ”
Just something to think about.
Siemucha v Garrison, 2013 NY Slip Op 07608 (4th Dept. 2013)
Point #1: Unsworn to chiropractic report (affidavit?) was proper because it was unobjected to (nothing new) and was based upon otherwise admissible hearsay (something new?)
“Defendants failed to preserve for our review their contention that the affirmed report of the chiropractor was not in admissible form (see Toure v Avis Rent A Car Sys., 98 NY2d 345, 351 n 3; cf.Hartley v White, 63 AD3d 1689, 1690;Shinn v Catanzaro, 1 AD3d 195, 197-198). In any event, a plaintiff “may rely on unsworn reports and uncertified medical records if they were submitted by defendants . . . or were referenced in the reports of physicians who examined plaintiff on their behalf, and [defendants] submitted the reports of their experts” (Feggins v Fagard, 52 AD3d 1221, 1223; see Brown v Achy, 9 AD3d 30, 32). Here, defendants’ expert reviewed and referenced numerous [*2]medical records of plaintiff in his report, including the chiropractic records.”
Point 2: “objective proof of spasm in his cervical spine” is sufficient to demonstrate a serious injury
Point 3: A narrow 3101(d) can preclude otherwise relevent evidence.
“Defendants further contend that the evidence of plaintiff’s drug use was relevant to the claim of loss of enjoyment of life and plaintiff’s heart problems, but defendants’ expert disclosure did not include those topics, and the court therefore properly precluded defendants from presenting such evidence at trial (see generally Lidge v Niagara Falls Mem. Med. Ctr. [appeal No. 2], 17 AD3d 1033, 1035). Likewise, the court did not abuse its discretion in precluding defendants’ expert from testifying regarding his experience treating patients with pending litigation and a study concerning that subject matter inasmuch as those matters were not included in defendants’ expert disclosure ”
Point 4: Police Reports
“Facts stated in a police report that are hearsay are not admissible unless they constitute an exception to the hearsay rule, such as an admission (see Huff v Rodriguez, 45 AD3d 1430, 1432; Stevens v Kirby, 86 AD2d 391, 395). Here, however, inasmuch as “the source of the information was never identified,” the statement was not admissible as an admission (Huff, 45 AD3d at 1432)”
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa
Betancourt of counsel), for Empire Acupuncture, PC,
Amos Weinberg, Great Neck, for Multiple Medical Health
Services P.C. and Infinite Chiropractic, PLLC, respondents.
American Tr. Ins. Co. v Marte-Rosario, 2013 NY Slip Op 07416 (1st Dept. 2013)
“Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011],lv denied 17 NY3d 705 ).”
The address in this case for Assignor was “632 Faile Street, #1, Bronx, New York 10474.” It was noted in certain proofs that correspondences were sent to: “632 Failes Street, #1, Bronx, New York 10474.” Thus, a letter was presented showing that correspondence was returned if mailed to that address. The Court held that this did not matter, and would require an affidavit of non-receipt of Marte-Rosario on this score to defeat the motion.
Moreover, the court said that even if the letter was not received by Marte-Rosario, it was received by her personal injury attorney,The Law Offices of Barry Richard Feldman, LLC. Also, be aware that there was no proof in the record, i.e., a letter of representation, that Claimant was actually represented by Mr. Feldman. Under Appellate Term, and now Appellate Division jurisprudence, the burden is on the objectant – i.e. the medical provider or EIP – to demonstrate that the purported attorney was not counsel for Claimant when the letters were sent.
A very powerful case.
American Transit Ins. Co. v. Lucas, 2013 NY Slip Op 07273 (1st Dept. 2013)
|American Tr. Ins. Co. v Lucas|
|2013 NY Slip Op 07273|
|Decided on November 7, 2013|
|Appellate Division, First Department|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and subject to revision before publication in the Official Reports.|
Decided on November 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Richter, Feinman, JJ. 10975-
152409/12 10976 152413/12
The Law Office of Jason Tenenbaum, P.C., Garden City (Jason
Tenenbaum of counsel), for appellant.
Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis
of counsel), for respondent.
Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.
The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 ). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8[c]; Unitrin, 82 AD3d at 560). [*2]
” [A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).
Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], *3 [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A] [App Term, 2d Dept 2007]).
There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 ; Unitrin Advantage Ins. Co., 82 AD3d at 560).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 7, 2013