So the newest 2309(c) case now holds that this statute is irrelevent

U.S. Bank Natl. Assn. v Dellarmo, 2012 NY Slip Op 02481 (2d Dept. 2012)

“The plaintiff’s failure to comply with CPLR 2309(c) in submitting various documents, including, among others, the corrective assignment, which were notarized outside the state but not accompanied with a certificate in conformity with CPLR 2309(c), was not a fatal defect, as such certification may be provided nunc pro tunc”see CPLR 2001….”

Prima facie gone bad

Complete Radiology, P.C. v Progressive Ins. Co., 2012 NY Slip Op 50583(U)(App. Term 2d Dept. 2012)

“A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the 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]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff’s affidavit failed to state unequivocally that defendant’s denial of claim forms were either untimely or without merit as a matter of law.”
Cases like this make AAA a lot of money.

Another prima facie disaster in the second department

Flatlands Med., P.C. v Allstate Ins. Co., 2012 NY Slip Op 50582(U)(App. Term 2d Dept. 2012)

“Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law”

I just do not know how a Plaintiff in the Second Department can obtain 3212(g) relief.  It seems to me that prima facie may be an all or nothing proposition nowadays in the Second Department.

An attorney’s statement, i.e., “he did not show up” is sufficient to support EUO defense

Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 2012 NY Slip Op 50579(U)(App. Term 2d Dept. 2012)

“Defendant also submitted an affirmation from one of the attorneys who was responsible for conducting the EUOs at issue, which established that plaintiff had failed to appear at either of the duly scheduled EUOs”

The latest line of attack in the IME no show and EUO no show wars has been the allegation that the affiant did not set forth a sufficiently detailed affidavit, proving that the claimant failed to attend his EUO’s.

In the case where the partner at the law firm swears out an affidavit that the Claimant did not show based upon the firm’s business practices, this is correct.  Where the affidavit, however, is based upon the affidavit of the person hired to conduct the EUO or IME, this type of elaborate business practice is not necessary.  Rather, a perfunctory attestation that the affiant was there and the Claimant failed to show would be sufficient.

MVAIC failed to disprove that the accident was the cause of the injuries

Five Boro Psychological Servs., P.C. v MVAIC, 2012 NY Slip Op 50578(U)(App. Term 2d Dept. 2012)

“MVAIC contends that there is an issue of fact as to whether plaintiff’s assignor’s injuries were the result of a motor vehicle accident. MVAIC’s sole proof in support of its contention consisted of an uncertified copy of a police report, which merely recorded a hearsay statement. Contrary to MVAIC’s contention, this showing was insufficient to demonstrate the existence of a triable issue of fact…(cf. Matter of Manhattan & Bronx Surface Tr. Operating Auth. (Gholson), 71 AD2d 1004 [1979]).”

The first sentence from the above passage, along with the cite to Gohlson, leads me to believe that the hearsay statement consisted of a witness saying that the motor vehicle was not the proximate cause of the injuries, taking this case out of the realm of no-fault.  Since this hearsay statement was not (1) an admission, (2) a police officer’s observation, or (3) pedigree information that the police officer took , the record needed to be certified in order to contain admissible evidence, sufficient to withstand a summary judgment motion.

This was not done, and another loss scored against MVAIC

Five Boro Psychological Servs., P.C. v MVAIC

An IME no-show case from the 9th and 10th

East 75th St. Diagnostic Imaging, P.C. v New York Cent. Mut. Fire Ins. Co.
35 Misc.3d 126(A)

1) “The affidavit sufficiently established that the IME notices had been sent to plaintiff’s assignor in accordance with NCEI’s standard office practices and procedures”

2) “Defendant also submitted affidavits and an affirmation by the doctors who were to perform the IMEs, which established that the assignor had failed to appear [*2]for the duly scheduled IMEs”

3) “In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant’s standard office practices and procedures”

Compare this with a typical First Department per curiam construing Unitrin.

Judicial notice applies to e-court website

Alev Med. Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 50568(U)(App. Term 2d Dept. 2012)

“A review of the information on the New York State Unified Court System E-Courts public Web site, of which we may take judicial notice (see Matter of L & Q Realty Corp. v Assessor, 71 AD3d 1025 [2010]; Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 20 [2009]), reveals that, although no judgment has been entered, the complaint was dismissed subsequent to the entry of the order appealed from. In light of that dismissal, this appeal must be dismissed as academic”

Notice of Trial vacated based upon a “detailed” Mallela showing

VE Med. Care, P.C. v Auto One Ins. Co., 2012 NY Slip Op 50571(U)(App. Term 2d Dept. 2012)

“Because the notice of trial and certificate of readiness filed by plaintiff contained the erroneous statement that discovery had been completed, the Civil Court properly granted the branch of defendant’s motion seeking to vacate the notice of trial”

“Defendant’s moving papers set forth detailed and specific reasons for believing that plaintiff is ineligible to recover no-fault benefits because plaintiff fails to meet applicable state and local licensing requirements”

Leave denied

Mercury Cas. Co. v Encare, Inc., etc., 2012 NY Slip Op 69137 (2012)

Congratulations to my able adversary Howard Stern, Esq., who prevailed on this case, all the way from arbitration to my leave application to the Court of Appeals.  We shall say he earned every dollar he obtained for his client and begrudgingly I salute him.

I will dream up my next battle.  Any ideas?

More MUA – this one is over the top

Flatbush Chiropractic, P.C. v Metlife Auto & Home, 2012 NY Slip Op 50541(U)(Civ. Ct. Kings Co. 2012).

The Plaintiff, Dr. Super’s brother runs a law firm about 2 floors up from me in my building here in Garden City.  His firm probably handles the lion’s share of his MUA enterprise.  I had a conversation with one of the attorneys who told me that Dr. Super does not believe in the fee schedule for MUA.  Civil Kings, true to form, never surprises me.

There are three passages from this case that intrigue me.  I am ignoring the medical necessity portion of this opinion because that is a whole different issue.

Passage one: “Defendant’s claims examiner testified that pursuant to the Workers Compensation Board chiropractors should only be compensated at a rate of 68.4% of the Fee Schedule. Through the testimony of Dr. Super, Plaintiff refuted this position stating that the Fee Schedule makes no such distinction.”

Passage two: “The Court takes judicial notice of an opinion letter (dated August 14, 2009) from Kenneth J. Munnelly, General Counsel of the Workers’ Compensation Board, which concludes that chiropractors who perform MUAs should be compensated at a rate of 68.4% of the allowable rate for medical doctors who perform the same procedure given the relative experience and training of a medical doctor versus that of a licensed chiropractor.”

So, now that it has been established that Dr. Super is greedy, you would think it would end here.  Nope.

Passage three: “Also at issue was the applicability of Ground Rules 5 and 12 of the Fee Schedule. Ground Rule 5, the multiple procedure rule, stands for the proposition that when multiple procedures are performed payment for the first procedure is paid at 100% and payment for additional procedures is reduced by 50%. Ground Rule 12(d), which Defendant applied, covers the apportionment of payment between two attending surgeons. Here, Defendant reduced Plaintiff’s bill according to Ground Rules 5 and 12. Plaintiff argued that Ground Rule 5 does not apply to MUAs because MUAs of the shoulders, hips, and cervical, thoracic, and lumbar spine are each distinct, stand-alone procedures involving separate body parts and as a result it was not appropriate to reduce payment pursuant to Ground Rule 5. Dr. Super compared MUAs to regular chiropractic manipulation procedures, where each part of the spine is billed as a separate and distinct procedure. Dr. Super also stated that Ground Rule 12 does not apply because according to the “Introduction and General Guidelines” of the Fee Schedule and Modifier 62, each chiropractor is entitled to separate and full [*4]payment for their services when two chiropractors work together as primary chiropractors and perform distinct parts of a procedure. Dr. Super maintained that both he and Dr. Klass are entitled to 100% of the fee billed because MUA guidelines require MUAs to be performed by two doctors, and here both he and Dr. Klass were co-attending chiropractors who each performed co-primary functions throughout the MUAs which entitled them each to full payment for the procedures independent of each other.The Court agrees and credits Dr. Super’s testimony and finds that the Plaintiff did not bill in excess of the Fee Schedule. Dr. Super has performed and billed MUAs for the past thirteen years. He was trained in the Fee Schedule by certified coding experts and has conducted research on the Fee Schedule in order to ensure that he bills according to the services performed and pursuant to the Fee Schedule. As the treating chiropractor, Dr. Super is in the best position to assess the treatment rendered and bill accordingly. Dr. Super’s testimony that each of the MUAs he performed are separate and distinct procedures coupled with the fact that MUA guidelines mandates two chiropractors justifies full compensation for each chiropractor.”

It is comical.  The court established that Dr. Super does not acknowledge the validity of the fee schedule and trims down his billing by about 50% at least.  After this, the Court finds Dr. Super to be a coding expert and allows him to ignore the 50% ground rule and multiple surgeon ground rule.

Falso in uno, falso in omnibis?  PJI 1:75 anyone?

Just remember this adage: “Pigs get fat and hogs get slaughtered.”

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