So you sued the TPA and not the insurance carrier – now what?

B&R Consol., LLC v Zurich Am. Ins. Co., 2014 NY Slip Op 06287 (2d Dept. 2014)

“The defendants’ contention that Zurich is not a proper party to this action under Insurance Law § 3420(b) because it did not issue the subject policy to Powell is without merit. Although the defendants made a prima facie showing that Zurich did not issue the subject policy by submitting a copy of the policy’s declaration page, which stated that the issuing company was American Guarantee, B & R established in opposition to the defendants’ motion and in support of its cross motion that an apparent agency relationship existed between Zurich and American Guarantee which extended potential vicarious liability to Zurich (see generally Hallock v State of New York, 64 NY2d 224, 231). In addition to the presence of Zurich’s logo on documents created and distributed by American Guarantee, B & R demonstrated that Zurich’s claims counsel was assigned to handle Powell’s case, that the assigned counsel was required to follow Zurich’s guidelines and to submit bills to Zurich, and that Powell was contacted by Zurich’s Customer Care Center regarding the claim and was directed to file his claim on Zurich’s website (see Fletcher v Atex, Inc., 68 F3d 1451, 1461-1462 [2d Cir]). This evidence of Zurich’s direct participation in the administration of Powell’s claim is sufficient to establish, prima facie, that an agency relationship existed between Zurich and American Guarantee such that Zurich may be held liable to B & R (see In re Parmalat Sec. Litig., 375 F Supp 2d 278, 295 [SD NY]). In opposition to B & R’s cross motion, the defendants failed to raise a triable issue of fact.”

Admittedly, this is an issue that never really concerned me personally.  I used to like watching a certain plaintiff attorney who has cluttered the Appellate Term with senseless appeals lose cases where he sued the TPA.  But the joy turned to anger when an insurance carrier called me on one of my Article 75 UM Petitions, demanded I discontinue against him because I sought to join a TPA as a proposed additional respondent and then demanded “costs” because I would not withdraw that branch of my Petition.

Alas, I will now have the last laugh :-)

Peer review of acupuncture not substantitated

Shirom Acupuncture, P.C. v Kemper Independence Ins. Co., 2014 NY Slip Op 51407(U)(App. Term 1st Dept. 2014)

“We agree that the peer review report relied upon by the defendant-insurer was insufficient to establish, as a matter of law, that the acupuncture services underlying plaintiff’s $2,175 no-fault claim lacked medical necessity. The report addressed the medical necessity of acupuncture services rendered to plaintiff’s assignor during a time frame prior to that covered by the bills sued upon here, with defendant’s peer reviewer basing his finding of a lack of medical necessity on narrow grounds, viz., the perceived vagueness of the provider’s initial acupuncture report and treatment notes. In such form, and since defendant’s peer reviewer stopped short of concluding that the assignor’s medical condition could never be shown to warrant further acupuncture treatments, his report cannot be read so broadly as to justify, without more, the denial of any and all future claims for acupuncture services rendered to the assignor. Thus, summary judgment dismissal of this claim was properly withheld.”

This one is interesting.  How many acupuncture cases have you seen where the insurance carrier denied all billing based upon a prior peer review?   I am surprised this was taken on appeal.  But what is interesting is that a peer review for an initial set of services can state broadly that all further services would not be medically necessary and the peer would (it appears) satisfy the initial burden of persuasion.

This case can definitely be used (with a proper peer review) to substantiate the denial of all pre-IME conservative therapeutic service.

Default not granted and a questionable appeal

Metropolitan Prop. & Cas. Ins. Co. v Braun, 2014 NY Slip Op 06283 (1st Dept. 2014)

“The motion court providently exercised it discretion in granting defendants’ cross motion for an extension of time to interpose an answer. Under the circumstances, although defendants’ assertion of law office failure “is not particularly compelling, it constitutes good cause for the delay” (Lamar v City of New York, 68 AD3d 449, 449 [1st Dept 2009] [internal quotation marks omitted]). There is no evidence that plaintiffs have been prejudiced, and the record shows that plaintiffs had previously agreed to an extension of time for defendants to answer. Contrary to plaintiffs’ contentions, a meritorious defense was not required for defendants to be granted an extension of time to answer (see Interboro Ins. Co. v Perez, 112 AD3d 483 [1st Dept 2013]; Cirillo v Macy’s, Inc., 61 AD3d 538, 540 [1st Dept 2009]).”

I read this and I asked myself why Plaintiff did not accept the answer and just move for summary judgment?  Interboro/Perez (my contribution) and the litany of other cases shows that a less than a compelling excuse is all that is necessary to defeat a motion for leave to enter a default.  Seems like a suicide march, and for no reason.

Submit order?

47 Thames Realty, LLC v Robinson, 2014 NY Slip Op 06051 (2d Dept. 2014)

“22 NYCRR 202.48, entitled “[s]ubmission of orders, judgments and decrees for signature,” states in pertinent part:

“(a) Proposed orders or judgments, with proof of service on all parties where the order is directed to be settled or submitted on notice, must be submitted for signature, unless otherwise directed by the court, within 60 days after the signing and filing of the decision directing that the order be settled or submitted.

“(b) Failure to submit the order or judgment timely shall be deemed an abandonment of the motion or action, unless for good cause shown.”

Here, the so-called 60-day rule set forth in 22 NYCRR 202.48 is not applicable because the Supreme Court’s direction that the defendants submit a proposed order with respect to an award of an attorney’s fee did not specify that the proposed order be settled or submitted on notice (see Farkas v Farkas, 11 NY3d 300, 309; Shamshovich v Shvartsman, 110 AD3d 975, 976-977; Matter of Village of Dobbs Ferry v Stanley Ave. Props., Inc., 95 AD3d 1027, 1029). Accordingly, the plaintiff’s contention that the defendants abandoned their claim for an award of an attorney’s fee by failing to comply with the 60-day rule is without merit.”

Just note the difference between the three directives that do not arise from a “decision/order”: (a) Submit order [not within gambit of 60-day rule]; (b) Settle order [within gambit of 60-day rule]; (c) submit order on notice [within gambit of 60-day rule].

Fee schedule in New Jersey

Epic Pain Mgt. & Anesthesia Consultants, LLC v New York Cent. Mut. Fire Ins. Co., 2014 NY Slip Op 51391(U)(App. Term 1st Dept. 2014)

“Defendant’s moving submission below relied exclusively on a worker’s compensation fee schedule defense, and failed to address, much less refute the applicability of Insurance Department regulation (11 NYCRR) § 68.6, which provides that where, as here, a reimbursable health service “is performed outside New York State, the permissible charge for such service shall be the prevailing fee in the geographic location of the provider.” Notably absent from defendant’s moving papers was any discussion of the proper “geographic location” of the plaintiff provider — which apparently maintains offices in both New York and New Jersey — or of the “prevailing fee” were such location determined to be in New Jersey”

What is the “prevailing fee”?  Is it the New Jersey fee schedule or something else?  Unsure.  I think Nassau Anesthesia Assoc. P.C. v Chin, 32 Misc.3d 282 (Dis. Ct. Nassau Co. 2011) is relevant on this point: “To the contrary, as recognized in Temple Univ. Hosp., Inc. v Healthcare Mgt. Alternatives, Inc. (832 A2d 501 [Pa Super Ct 2003]), the amounts “actually received” by medical providers from insurers are a far better indicator of the reasonable value of a provider’s services than the “full published charged” unilaterally set by the provider. (832 A2d at 508-510.)”

 

 

“All in one” debacle is not good law

Donoso v Motor Veh. Acc. Indem. Corp., 118 AD3d 461 (1st Dept. 2014)

This came out a few months ago and I meant to post it.  There was a case in 2014 where Judge Ciaffa (District, Nassau County) held that stipulated post-IME treatment notes were sufficient to rebut the testimony of an IME physician and to prove that the services were medically necessary.  Literally, one month after All in One was published, the First Department published Donoso which says otherwise.

Here are the facts and the law:

“Plaintiff claims that she suffered permanent consequential and significant limitations of use of her lumbar spine as a result of an accident involving a motor vehicle (see Insurance Law § 5102 [d]). At trial, she testified that she was knocked over by a car and thereafter suffered back pain and injuries for which she received physical therapy and epidural injections, and that she underwent surgery four years later. Ambulance and emergency room records admitted into evidence show that the then 65-year-old plaintiff complained of back pain following the accident, and medical records of the treatment about which plaintiff testified show, inter alia, that the surgical procedure was a laminectomy to address spinal stenosis. Plaintiff did not call any treating physician or medical expert to testify.

Defendant moved for a directed verdict at the close of plaintiff’s evidence, arguing that plaintiff could not prove causation without a doctor’s testimony (see CPLR 4401). Contrary to plaintiff’s contention, since defendant’s argument constituted a challenge to the sufficiency of the evidence, and indeed plaintiff opposed defendant’s motion on the ground that her medical records were sufficient, the issue whether plaintiff established prima facie that she suffered a serious injury causally related to the motor vehicle accident is preserved for review (see Geraci v Probst, 15 NY3d 336, 342 [2010]).

Plaintiff presented no evidence of a causal connection between the motor vehicle accident and her lumbar condition. The medical records do not contain an opinion given by a physician that there was a causal connection between the accident and plaintiff’s disc herniation or the spinal stenosis for which she underwent surgery four years later. Indeed, the impression of one of plaintiff’s treating physicians, according to his medical records, was “[d]egenerative disc disease of the lumbar spine.” However, if the records had contained an opinion, the trial court could not have considered them, because the opining physician was not available for cross-examination (see Rickert v Diaz, 112 AD3d 451 [1st Dept 2013]; **2 Daniels v Simon, 99 AD3d 658, 660 [2d Dept 2012]). Thus, defendant was correct that plaintiff could not prove causation without a doctor’s testimony, and its motion should have been granted because “there [was] no rational process by which the fact trier could base a finding in favor of [plaintiff]” (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]; see e.g. Ciocca v Park, 21 AD3d 671 [3d Dept 2005], affd 5 NY3d 835 [2005]).”

What’s the lesson of the story?  You must have an expert opine that the service was medically necessary.  I hope GEICO appealed All in one, but I am not holding my breath.

 

 

Disqualification not necessary on EUO no-show case

Lotus Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 2014 NY Slip Op 51315(U)(App. Term 2d Dept. 2014)

“In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). The motion was supported by, among other things, an affirmation from a partner in the law firm representing defendant, attesting to plaintiff’s failure to appear.  Plaintiff cross-moved to, among other things, disqualify the law firm representing defendant, pursuant to rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0), on the ground that a member of the firm was a necessary witness in this case. Plaintiff appeals from an order of the Civil Court entered August 3, 2012 granting defendant’s motion and denying plaintiff’s cross motion. A judgment was subsequently entered dismissing the complaint, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

“In light of the foregoing, plaintiff’s request that defendant’s law firm be disqualified based [*2]on the attorney/witness rule is “moot since, summary judgment having been granted, there will be no trial of this matter” (Quiros v Mount St. Michael Academy, 303 AD2d 185, 186 [2003]; see also Lombino v Town Bd. of Town of Rye, 206 AD2d 462 [1994]). In any event, plaintiff failed to establish that disqualification of defendant’s law firm was warranted (see S & S Hotel Ventures Ltd. Partnership v 777 S. H. Corp., 69 NY2d 437 [1987]; see also e.g. Magnus v Sklover, 95 AD3d 837 [2012]; Matter of Advent Assoc., LLC v Vogt Family Inv. Partners, L.P., 56 AD3d 1023 [2008]; Hudson Val. Mar., Inc. v Town of Cortlandt, 54 AD3d 999 [2008]; Daniel Gale Assoc., Inc. v George, 8 AD3d 608 [2004];Broadwhite Assoc. v Truong, 237 AD2d 162 [1997]; Matter of Cowen & Co. v Tecnoconsult Holdings, 234 AD2d 86 [1996]; Talvy v American Red Cross in Greater NY, 205 AD2d 143 [1994], affd 87 NY2d 826 [1995]; Kaplan v Maytex Mills, 187 AD2d 565 [1992]).”

Venue

Chehab v Roitman, 2014 NY Slip Op 05939 (2d Dept. 2014)

I have to give credit to Alla Kleban for locating this case.  Admittedly, I just scanned this one and did not pick up on any salient facts.  But there are many.

“To effect a change of venue pursuant to CPLR 510(1), a defendant must show that the plaintiff’s choice of venue is improper and that [his or her] choice of venue is proper” (Gonzalez v Sun Moon Enters. Corp., 53 AD3d 526, 526; see CPLR 511[b]; see also Lopez v K. Angle K Inc., 24 AD3d 422, 423). To succeed on his motion here, the defendant was obligated to demonstrate that, on the date that this action was commenced, neither of the parties resided in the county that was designated by the plaintiff (see Ramos v Cooper Tire & Rubber Co., 62 AD3d 773Baez v Marcus, 58 AD3d 585, 586; Corea v Browne, 45 AD3d 623, 624; see also Fiallos v New York Univ. Hosp., 85 AD3d 678, 678; Clarke v Ahern Prod. Servs., 181 AD2d 514, 515;Bradley v Plaisted, 277 App Div 620, 621). Only if the defendant made such a showing was the plaintiff required to establish, in opposition, via documentary evidence, that the venue he selected was proper (see Buziashvili v Ryan, 264 AD2d 797).

Here, the sole piece of evidence that the defendant submitted with respect to the issue of the plaintiff’s residence was the police accident report referable to the subject accident. This evidence merely showed that, at the time the accident occurred, the plaintiff had a residence in Texas. This evidence did not demonstrate that the plaintiff did not maintain a residence in Kings County at the time when the action was commenced, two months after the accident (see Ramos v Cooper Tire & Rubber Co., 62 AD3d at 773; Baez v Marcus, 58 AD3d at 586; Corea v Browne, 45 AD3d at 624; see also Fiallos v New York Univ. Hosp., 85 AD3d at 678; Clarke v Ahern Prod. Servs., 181 AD2d at 515; Bradley v Plaisted, 277 App Div at 621). Consequently, the defendant failed to meet his initial burden.

Although a plaintiff may choose venue based solely on a defendant’s address, as set forth in a police accident report (see Gonzalez v Weiss, 38 AD3d 492, 493; Furth v ELRAC, Inc., 11 AD3d at 510), a police accident report, standing alone, is not sufficient evidence to demonstrate that, on the date that an action is commenced, a plaintiff does not reside in the county where he or she elects to place the venue of trial. To the extent that this Court’s decisions in Samuel v Green (276 AD2d 687) and Senzon v Uveges (265 AD2d 476) may be read to indicate to the contrary, they should not be followed.

Accordingly, the Supreme Court properly denied the defendant’s motion to change the venue “

Supplemental affirmation on a DJ case acceptable and res judicata mandates dismissal of complaint

Great Health Care Chiropractic, P.C. v American Tr. Ins. Co., 2014 NY Slip Op 51324(U)(App. Term 2d Dept. 2014)

This was proudly mine and another example of why it pays to put up a good fight as well as to be proceduraly savvy.

“Great Health Care Chiropractic, P.C. (Great Health) commenced this action on February 14, 2012 to recover assigned first-party no-fault benefits for services provided to its assignor as a result of injuries sustained in a motor vehicle accident on December 10, 2010. After issue had been joined, plaintiff moved for summary judgment, and defendant opposed the motion on the ground that plaintiff had failed to establish its prima facie case. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Great Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath (EUOs) and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Great Health as assignee of Kareem Lindsay arising out of the December 10, 2010 accident. Great Health asserted in its answer in Supreme Court that American Transit did not demonstrate good cause for requesting an EUO. The Supreme Court initially denied a motion by American Transit for, among other things, summary judgment but, upon reargument, granted the motion, finding that American Transit had demonstrated that it had timely mailed EUO scheduling letters to Great Health’s assignor; that the assignor had failed to appear for scheduled EUOs; and that Great Health had failed to raise a triable issue of fact in opposition to the motion. The Supreme Court awarded American Transit a declaratory judgment, dated January 25, 2013.

After being awarded the declaratory judgment, American Transit submitted, in this action, a supplemental affirmation by its counsel, in opposition to plaintiff’s motion for summary judgment, in which he argued that plaintiff’s action is barred by res judicata. By order entered February 28, 2013, the Civil Court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice. This appeal by plaintiff ensued.

 “(1) Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claims within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment.”

(2) “Moreover, the Civil Court properly determined that the action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]).”

(3) Defendant’s failure to serve the Supreme Court’s order upon plaintiff with notice of entry is not fatal, in view of the binding and conclusive effect of the order (see All Boro Psychological Servs., P.C. v Travelers Prop. Cas. Co., ___ Misc 3d ___, 2014 NY Slip Op 24161 [App Term, 2d, 11th & 13th Jud Dists 2014]).

(4) While plaintiff argues that the Civil Court improvidently exercised its discretion in considering defendant’s untimely supplemental affirmation in opposition to plaintiff’s summary judgment motion, we reject this contention in view of the justification shown for the delay and plaintiff’s failure to demonstrate any prejudice arising therefrom (see Lawrence v Celtic Holdings, LLC, 85 AD3d 874 [2011]; cfMosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]). In view of the foregoing, we decline to disturb so much of the order as, upon a search of the record, granted defendant summary judgment dismissing the complaint with prejudice.”

Every time Rybak appeals, he just digs that hole a little deeper and a little wider.

 

Back when DJ’s roamed the earth

Ultimate Health Prods., Inc. v American Tr. Ins. Co., 2014 NY Slip Op 51321(U)(App. Term 2d Dept. 2014)

Good job to my colleague and friend James Sullivan on this one.

“Ultimate Health Products, Inc. (Ultimate Health) commenced this action in the Civil Court, Queens County, to recover assigned first-party no-fault benefits for supplies provided to its assignor as a result of injuries sustained in a motor vehicle accident. While this no-fault action was pending, defendant, American Transit Insurance Company (American Transit), commenced a declaratory judgment action in Supreme Court, New York County, against Ultimate Health and its assignor, among others, alleging that the assignor had breached the terms of the insurance policy by failing to appear for duly scheduled examinations under oath and that, as a result, American Transit is not obligated to pay any claims for first-party no-fault benefits submitted by Ultimate Health as assignee of Carlos Martinez arising from the car accident in question. In December of 2011, plaintiff moved in the Civil Court for summary judgment. On May 15, 2012, the Supreme Court awarded American Transit a declaratory judgment on default. American Transit subsequently cross-moved in the Civil Court, pursuant to CPLR 3211 (a) (5), to dismiss plaintiff’s action, contending that this action is barred by virtue of the declaratory judgment. Plaintiff opposed defendant’s cross motion and now appeals from an order of the Civil Court, entered January 18, 2013, which implicitly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion dismissing the complaint.

The Supreme Court determined that Ultimate Health’s assignor was not an eligible injured person entitled to no-fault benefits under the applicable policy, and that American Transit was not obligated to pay claims submitted by Ultimate Health as assignee of Carlos Martinez in any current or future proceedings arising under that policy from the car accident in question. In light of the declaratory judgment, the present action is barred under the doctrine of res judicata (see EBM Med. Health Care, P.C. v Republic W. Ins., 38 Misc 3d 1 [App Term, 2d, 11th & 13th Jud Dists 2012]; Ava Acupuncture, P.C. v NY Cent. Mut. Fire Ins. Co., 34 Misc 3d 149[A], 2012 NY Slip Op 50233[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; SZ Med., P.C. v Erie Ins. [*2]Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), as any judgment in favor of plaintiff in this action would destroy or impair rights or interests established by the Supreme Court declaratory judgment (see Schuylkill Fuel Corp. v Nieberg Realty Corp., 250 NY 304, 306-307 [1929]; SZ Med., P.C. v Erie Ins. Co., 24 Misc 3d 126[A], 2009 NY Slip Op 51221[U]). Plaintiff’s remaining arguments lack merit or were not preserved for appeal.”

This is from back when the good guys had the stage and providers had to earn their money.

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