No Fault Defender – A Defense Attorney's Perspective on New York No-Fault Law

Upper E. Side Surgical, PLLC v State Farm Ins. Co., 2012 NY Slip Op 50184(U)(Dis. Ct. Nassau Co. 2012)

“Plaintiff does assert, however, that there is no requirement in the Regulations that NYS Public Health Law Article 28 licensure is a prerequisite to No-Fault Claims reimbursement. The current applicable law, New York’s Office Based Surgery (OBS) Law passed on July 14, 2007 (Public Health Law § 230-d), requires merely that an office-based surgery facility must obtain and maintain full accredited status by a national-recognized accrediting agency approved by the Commissioner of Health. As to proof of same, Plaintiff provides as its Exhibit A, its certification that it was accredited from 02/27/2010 to 02/27/2011 by the American Association for Accreditation of Ambulatory Surgery Facilities (AAAASF), which included the time period of this claim. Under PHL § 230-d, AAAASF, is one of three accreditation entities which has been approved by the Commissioner. No claim is made by the Defendant that the Plaintiff provider is not in full compliance with the required registrations, certifications or accreditations to conduct its office-based surgery business under the applicable laws of New York, particularly PHL § 230-d.”

…

“This Court finds that the Plaintiff is not authorized to be reimbursed for the medical/surgical services it provided to its assignor under the “facility fee” schedule in accordance with The Products of Ambulatory Surgery (PAS) classification system because it is not an Art. 28 facility. Plaintiff is, however, entitled to reimbursement under Insurance Law § 5102(a)(1) for the medical/surgical services it provided to its assignor”

..

“The next question for the Court to answer is, “What is the rate of reimbursement?”

“Accordingly, inasmuch as no proof has been submitted that the Superintendent of Insurance has adopted or established a fee schedule applicable to the plaintiff/provider, a question of facts exists as to the amount of the charge for services. Moreover, no proof has been submitted as to the local geographic prevailing fee, which plaintiff provider would be entitled to be reimbursed for its services. While in certain instances, the workers’ compensation fee schedules have been utilized to established local prevailing fees, such is not the case with regard to a facility fee for office based surgery facilities, at least as far as the Court can discern. Thus, a trial of the issue is necessary.”

…

My answer is that 68.5(b) is satisfied through finding what a nearby Article 28 facility would be compensated and pegging that amount to the compensation that would be due and owing to an accredited office based surgical center.  So, a trial is probably not needed since Plaintiff would be entitled to the fee an Article 28 near its location is receiving.  Another way of saying this is that the case should settle for the amount that would be paid to a nearby Article 28 facility.

All Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 50137(U)(App. Term 2d Dept. 2012)

Point I: “The case was tried on December 8, 2010. At trial, plaintiff and defendant stipulated in writing to plaintiff’s prima facie case, defendant’s timely denials, admission of the expert witness disclosure package, which included the peer review report and medical records reviewed, and that the only issues for trial were lack of medical necessity and fees not in accordance with fee schedules.”

Point II: “Plaintiff rested, relying on the stipulation that it had established its prima facie case. Defendant’s witness was unavailable, and defendant moved to adjourn the trial to a later date to call a witness. Since defendant failed to show good cause, the application to adjourn was denied (NY City Civ Ct Act § 1302 [a]). Plaintiff then moved for a directed verdict on the ground that defendant was not ready to proceed and could not establish its defenses (CPLR 4401). Relying on the stipulation, defendant opposed plaintiff’s motion and cross-moved for a judgment in its favor on the ground that it established timely and proper denials, and that the peer review report and medical records were in evidence.”

(At this point court cites to the Nir test of medical necessity)

“The court acknowledges there are circumstances where a live witness would be required to embellish defendant’s position. Here, the court finds defendant was not required to present an expert witness to testify at trial, particularly since plaintiff did not offer a witness or any evidence whatsoever on rebuttal. Accordingly, the court finds defendant successfully proved lack of medical necessity for four of the tests administered and the related explanation and interpretation of results.”

A true trial on papers….  Remember when the Court in S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 2008 NY Slip Op 51537(U)(App. Term 2d Dept. 2008) granted judgment in favor of Defendant based upon a deposition of Defendant’s expert?  Interesting nuance.

Lee v Guzman, 2012 NY Slip Op 50144(U)(App. Term 2d Dept. 2012)

“At the outset, it is noted that this court has jurisdiction to hear the appeal from the 2004 Supreme Court order, as the notice of appeal from that order was filed after the case had been transferred to the Civil Court pursuant to CPLR 325 (d) (Pollack v Anh Thanh Pham, 27 Misc 3d 28 [App Term, 2d, 11th & 13th Jud Dists 2010]). However, both parties concede that the 2004 order did not decide a motion made on notice. As the order was either entered on consent, from which no appeal would lie (see CPLR 5511; Matter of D’Imperio v Putnam Lake Fire Dept., 262 AD2d 410 [1999]; Matter of Reynolds v Spanakos, 196 AD2d 798 [1993]), or was decided sua sponte or in response to an oral application, from which no appeal lies of as of right (see CCA [*2]1702 [a]; CPLR 2211; Sholes v Meagher, 100 NY2d 333 [2003]) and leave to appeal has not been granted (see CCA 1702 [c]), the appeal from the September 14, 2004 order is dismissed.”

How many appeals are being filed by a certain attorney based upon consent orders?

FIA Card Servs. v Savino, 2012 NY Slip Op 50141(U)(App. Term 2d Dept. 2012)

“We find that plaintiff failed to establish its prima facie entitlement to judgment as a matter of law based on a breach of a credit card agreement since plaintiff failed to provide proof of, among other things, the various purchases or transactions allegedly made with the credit card”

Forgot the credit card bills…

B.Y., M.D., P.C. v Global Liberty Ins. Co. of N.Y., 2012 NY Slip Op 50156(U)(App. Term 2d Dept. 2012)

This would normally win the Mr. Five Boro award, but Eagle v. Progressive took that title today.  This comes in a very close second.  Read the first two paragraphs.

Point 1: The order, insofar as appealed from, denied without prejudice plaintiffs’ motion for summary judgment and held the action in abeyance pending an application to the Workers’ Compensation Board for a determination of the parties’ rights under the Workers’ Compensation Law.”

Point 2: ORDERED that the order, insofar as appealed from, is modified by striking the provision denying without prejudice plaintiffs’ motion for summary judgment and by remitting plaintiffs’ motion to the District Court for a new determination after final resolution of a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law. In the event plaintiffs fail to file proof with the District Court of such application within 90 days of the date of the order entered hereon, the District Court shall deny plaintiffs’ motion and grant reverse summary judgment in favor of defendant dismissing the complaint unless plaintiffs show good cause why the complaint should not be dismissed.

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50151(U)(App. Term 2d Dept. 2012)

If it could go wrong it did.  There was probably no point of appealing this one.  Ask yourself this question: If you had to pay $1,500 to create a reproduced record, would you spend your client’s money on these facts?  The answer is probably obvious.

“However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.”

I am waiting for Mitch Lustig’s comment about how these courts refuse to learn their lesson…

Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50149(U)(App. Term 2d Dept. 2012)

“Contrary to the determination of the Civil Court, defendant was not required to annex to its motion papers copies of the medical records which were reviewed by defendant’s peer reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; [*2]A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

…”plaintiff “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).”

New Life Med., P.C. v Geico Ins. Co.,2012 NY Slip Op 50150(U)(App. Term 2d Dept. 2012)(run of the mill medical necessity case)

Total Equip., LLC v Praetorian Ins. Co., 2012 NY Slip Op 50155(U)(App. Term 2d Dept. 2012)(District Nassau County reversed)

Elmont Open MRI & Diagnostic Radiology, P.C. v Tri-State Ins. Co., 2012 NY Slip Op 50170(U)(App. Term 2d Dept. 2012)(District Nassau County reversed).

Radiology Today, P.C. v Mercury Ins. Co., 2012 NY Slip Op 50148(U)(App. Term 2d Dept. 2012)

“In opposition to the motion, plaintiff submitted a doctor’s affirmation and the claim forms, which identified the doctor as plaintiff’s owner. In its reply papers, defendant objected to the affirmation on the ground that it failed to comply with CPLR 2106. Plaintiff’s submission of the doctor’s affirmation was improper because the doctor is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; Slavenburg Corp. v Opus Apparel, 53 NY2d 799 [1981]; Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Even if the affirmation of plaintiff’s doctor could properly be considered, plaintiff nevertheless failed to raise an issue of fact, as the doctor’s affirmation did not meaningfully refer to, let alone rebut, the conclusions set forth in defendant’s peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App [*2]Term, 2d, 11th & 13th Jud Dists 2009]).”

I am pretty sure this was my appeal.

Neomy Med., P.C. v Geico Ins. Co., 2012 NY Slip Op 50145(U)(App. Term 2d Dept. 2012)

“In opposition to defendant’s cross motion, plaintiff submitted an affidavit of its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Quality Psychological Servs., P.C. v Mercury Ins. Group, 27 Misc 3d 129[A], 2010 NY Slip Op 50601[U] [App Term, 2d, 11th & 13th Jud Dists 2010]”

I seem to recall losing Quality the opposing evidence was a boiler plate “letter of medical necessity.”

First Help Acupuncture, P.C. v General Assur. Co., 2012 NY Slip Op 50142(U)(App. Term 2d Dept. 2012)

“An action that has been marked off the trial calendar, whether by consent of the parties or stricken by the court, which is not restored to the calendar within one year, may only be restored thereafter if the plaintiff demonstrates, inter alia, a meritorious cause of action and a reasonable excuse for the delay in moving to restore the case”

Since the Appellate Division, Second Department has held that 3404 can never serve as a means to dismiss these cases, this matter like many will be held in limbo forever.  Thus, the reserves will also be remaining tied up forever.