It's No-Fault of NY

How do you spell "Pyrrhic victory"?

2010-12-16T15:29:00.003-05:00

A new post. It's only been like a year and a half. Anyway, there's a new Appellate Division case you should read.

Matter of Carothers v GEICO Indem. Co., __ A.D. 3d, __, 2010 NY Slip Op 09256 (2d Dep't, 2010).

So Carothers did not get their bills into evidence because the sole witness at trial worked for a third-party billing company, and said billing company did not create the bills. Instead, the medical office would create the bills, the billing company would access them online, print them out, and mail them. The Appellate Division now affirms the holding of the Appellate Term that this is insufficient to establish the admissibility of the bills.

This is probably the correct outcome.

BUT...

The Appellate Division now holds (and this ain't dicta, this is essential to the holding) that "although a proper foundation can be established by a recipient of records who does not have personal knowledge of the maker's business practices and procedures, there must still be a showing that the recipient either incorporated the records into its own records or relied upon the records in its day-to-day operations." (Emphasis mine.)

Thus, where a third-party biller witness lacks personal knowledge of the medical provider's procedures, the biller can still get the bills into evidence so long as:
1) the information received from the medical office was incorporated in the billing company's records, OR
2) the information received from the medical office is used in the billing company's day-to-day operations.

In the standard scenario of a third-party biller witness (or affiant, for that matter) who creates the bills based on information received from the medical office, the biller should now be able to get the bills into evidence even if the biller has no personal knowledge of the medical office's procedures, so long as at least one of the elements of Carothers is satisfied.

This just so happens to overrule every Appellate Term decision that held that a third-party biller cannot get the bills into evidence solely on the basis that the biller lacks personal knowledge of the procedures of the medical office. See, e.g.,, Raz Acupuncture, P.C. v Travelers Prop. Cas. Ins. Co., 26 Misc 3d 132(A) (App. Term, 2d Dep't, 2010).

Merry Christmas.

Coverage Counsel

2009-07-30T16:42:00.003-04:00

I'm not sure how it's possible, but apparently I never, before now, had a link in my blogroll to Roy A. Mura, Esq.'s wonderful blog Coverage Counsel. Mr. Mura's posts deal with no-fault issues, as well as a much wider range of insurance law matters.

Provider EUOs

2009-07-23T14:43:00.002-04:00

David M. Gottlieb, Esq. has previously covered this issue at No-Fault Paradise, but it seems to me that it's worth some additional attention.

On June 24, 2009, the NYS Insurance Department issued an opinion letter entitled "Examinations Under Oath of Assignees". The short question/answer summary is as follows:

"Question:
May an insurer, when requesting verification in the form of an examination under oath of an assignee of no-fault personal injury protection (“PIP”) benefits, require a corporate assignee to designate a specific person to be examined?

Answer:
No. Neither the Insurance Law nor the regulations promulgated thereunder permit an insurer to require that a corporate assignee of no-fault benefits designate a specific person of the insurer’s choice to submit to an examination under oath."

As the Insurance Department noted, "nowhere does the regulation address whether an assignee that is a corporate entity or partnership must submit a person for examination that is specifically identified by an insurer in its examination under oath notice." The Department therefore reasoned that there is, in fact, no allowance for the insurer to request the production of a specific person at an EUO. However, the Department opined that, if the provider does produce someone for the EUO, and that person is unable to provide the information sought, "the insurer may request additional examinations of the assignee until a person is submitted for examination by the assignee who can provide the items necessary to verify the claim." (Internal quotation marks omitted).

In his post, Mr. Gottlieb asked what is presumably the most important and immediate question for practitioners: "Would EUO requests, where they demanded that a specific person appear for the EUO, be defective as a matter of law?"

I'm not sure that there's an easy answer here, but it seems to me that if an insurer requests that a specific person (presumably, a professional shareholder) appear at an EUO, and only requests the appearance of that person, the request is invalid. It would seem that it would be invalid, ab initio, for an insurer to request something that it is simply not entitled to. To the extent that a provider could choose to produce a different person in response to such a request, the provider would be under no duty to do so given the specific nature of the request. As such, non-attendance (by anyone from the provider) at such a requested EUO should not constitute a failure to provide verification or to otherwise cooperate, as the insurer had no authority to make such a request in the first place.

It therefore appears to me that requesting that a provider produce a specific person at an EUO is no more valid than an insurer requesting an EUO at all under the Old Regulations (which contained no specific provision whatsoever allowing for EUOs as a form of verification). See King's Med. Supply v. Progressive Ins., 3 Misc.3d 126(A) (App. Term, 2d Dep't, 2004), holding that "[s]ince there was no provision authorizing such a procedure, defendant's request that plaintiff submit to an EUO did not toll the 30-day period within which it was required to pay or deny the claim."

An Addition to the Blogroll

2009-07-21T16:19:00.004-04:00

I've been meaning to add it in for a while, but now that I finally got around to updating the layout of the blog (which shouldn't look much different to the reader, hopefully), I've added a link to No Fault Law - A Defense Attorney's Perspective. It's worth taking a look at.

The Death of the Assignment of Benefits?

2009-07-16T13:01:00.004-04:00

In 2007, the Court of Appeals reaffirmed the longstanding Appellate Division case law "that a carrier's failure to seek verification or object to the adequacy of claim forms pursuant to 11 NYCRR 65-3.5 precludes it from interposing any defenses based on such deficiencies." Hospital for Joint Diseases v. Travelers Property Cas. Ins. Co., 9 N.Y.3d 312, 318 (2007). The Appellate Division had long held that this rule precluded defenses related to, inter alia, the assignment of benefits form. The Court of Appeals therefore held "that the failure by Travelers to seek verification of the assignment in a timely manner prevents the carrier from litigating the issue now." Id. at 319.

Left open was the question of whether proof of the assignment is a part of a no-fault plaintiff's prima facie case. Travelers contended before the Court of Appeals that proof of the assignment was, indeed, a necessary component of a plaintiff's proof. The Court avoided the issue by holding that, "[e]ven assuming that this is true, we conclude that an assignment form stating that the patient's signature is 'on file' satisfies that burden where the carrier does not timely take action to verify the existence of a valid assignment." Id. at 320.

The Appellate Term, 2d Dep't, has since taken the Hospital for Joint Diseases decision and run with it. In Westchester Neurodiagnostic, P.C. v. Allstate Ins. Co., decided last month, the App. Term held that "proof of the assignment of benefits form is not an element of plaintiff's prima facie case." ___ Misc.3d ___, 2009 NY Slip Op 51385(U) (App. Term, 2d Dep't, 2009). I believe this is the first time an appellate court has explicitly announced this rule.

This month, in Davydov v. Progressive Ins. Co., the Appellate Term dealt with the situation of an assignment form existing, but not actually naming the proper parties. ___ Misc.3d ___, 2009 NY Slip Op 29299 (App. Term, 2d Dep't, 2009). In that case, the assignee was misidentified as "Dr. Albert Davydov, DDS, P.C. rather than Dr. Albert Davydov, DDS." Id. Nevertheless, citing to Hospital for Joint Diseases, and over a dissent by Justice Golia, the Appellate Term held that even this issue was waived.

I wouldn't be surprised if the carriers in Westchester Neurodiagnostic and Davydov try taking their arguments to the Appellate Division, but these decisions represent the current state of the law on assignments. It would thus appear now that, without having made verification requests, no assignment-related defense will hold any water. Indeed, in such situations, the assignment form should not even be subject to production through the discovery process, as discovery demands related to precluded defenses are palpably improper. See Midborough Acupuncture, P.C. v. State Farm Ins. Co., 21 Misc.3d 10, 12 (App. Term, 2d Dep't, 2008).

On the other hand, I have no question in my mind that many trial court judges will continue to consider the assignment a necessary part of a plaintiff's burden. Some judges still continue to hold that an assignor's signature on the assignment form must be authenticated in order for a plaintiff to make out its prima facie case, even though the Appellate Term has held otherwise for years. See A.B. Medical Services PLLC v. Prudential Property & Cas. Ins. Co., 7 Misc.3d 14 (App. Term, 2d Dep't, 2005). That being said, any judge reading this would necessarily be too well-informed to make such an error.

And, of course, many defense attorneys who know better still continue to make such frivolous arguments while feigning ignorance of the last decade of no-fault jurisprudence. I've had defense attorneys tell me, with a straight face, that Hospital for Joint Diseases doesn't preclude them from questioning the validity of the language of the assignment form for the first time at trial.

If anyone believes that, in the absence of relevant verification requests, any assignment-related defenses still survive, please feel free to share.

State Farm v. Langan

2009-06-25T11:40:00.002-04:00

In State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281 (2d Dep't, 2008), the Appellate Division, 2d Department, held that, regarding no-fault benefits, a loss is "accidental" where the incident is "unexpected, unusual and unforeseen" from the point of view of the injured person. Generally speaking, this struck a blow against insurers who seek to disclaim coverage where only one person intentionally caused the loss. Thus, for example, where insurers previously sought to disclaim no-fault coverage for an occupant of a vehicle that was intentionally struck (but where said occupant played no role in the scheme), Langan provides that such a disclaimer would be invalid. The disclaimer would only be appropriate where the insurer can demonstrate that the injured person in question was a party to the intentional conduct.

It thus bears noting that, on June 11, 2009, the Court of Appeals dismissed State Farm's further appeal in that matter. See State Farm Mut. Auto. Ins. Co. v. John Robert Langan,etc., 2009 NYSlipOp 74754 (Ct. of App., 2009), which dismissed the appeal sua sponte on the basis that the App. Div.'s order "does not finally determine the action within the meaning of the Constitution." As a result, the App. Div.'s holding will apparently remain settled law (at least in the 2d Dep't) for the foreseeable future.

Practitioners citing to Langan in briefs may consider noting in the citation that the appeal was dismissed (e.g., State Farm Mut. Auto. Ins. Co. v. Langan, 55 A.D.3d 281 (2d Dep't, 2008), app. dismissed, 2009 NYSlipOp 74754 (Ct. of App., 2009)).

EUO No-Show by Patient Subject to Preclusion

2009-04-03T14:39:00.004-04:00

I'll have a post regarding the unsurprising result in LMK later, but there's a new decision from the Appellate Division, Second Department that requires some attention.

The decision in Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 2009 NY Slip Op 02589 (App. Div., 2d Dep't, 2009) has just been posted.

The decision has a few holdings. The ostensible main holding is that letters "advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant's involvement in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts" are not valid verification requests. Id. This holding is nothing groundbreaking.

The much more interesting holding comes later: "Where, as here, the defendant's denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff's assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider's right to recover no fault benefits or to toll the 30-day statutory period. Rather, such denial was subject to the preclusion remedy." Id. (internal citations omitted).

So, in short, EUO no-shows by patients require timely denials. Presumably this holding also applies to other policy conditions, such as attendance at IMEs. If so, this would extinguish any hope raised by the last sentence of Fogel that such a no-show is a coverage defense because "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs." Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720 (2d Dep't, 2006). Clearly, now, such defenses are not based upon a lack of coverage, and must be denied within 30 days. Presumably, timely and valid requests for EUOs and IMEs still toll the 30 days, but the eventual denial must be timely, as well. So, whatever a "retroactive" denial mentioned in Fogel is, it's still something that must be timely.

MVAIC & Qualified Persons

2009-03-03T13:05:00.003-05:00

Judge Noach Dear's decision in Kipor Medicine P.C. v. MVAIC, 2009 NY Slip Op 29085 (Civ. Ct., Kings Cty., 2009) was published today on the Slip Opinion site. This was published as a Decision of Interest in the New York Law Journal last week and will be published in the official Miscellaneous Reports.

As noted in the version published in the Law Journal, I handled this trial of counsel to the Law Offices of Bruce Newborough for Plaintiff.

In the case, MVAIC alleged that it had never received proof of the assignor's residency in New York and that, therefore, the assignor was not a "qualified person" under Insurance Law § 5202(b). As noted by the Court, however, the definition of "qualified person" is not limited to New York residents. Moreover, the fact that MVAIC had not received proof of residency was not sufficient proof that the assignor did not meet the definition of a "qualified person." MVAIC likewise submitted no other proof to demonstrate that the assignor was not qualified.

Timeliness of EUO Requests

2009-02-18T12:58:00.002-05:00

This morning brings us the Appellate Term, 2d Department's decision in Great Wall Acupuncture, P.C. v. New York Central Mutual Insurance Company, 2009 NYSlipOp 50224(U) (App. Term, 2d Dep't, 2009).

In a summary judgment motion, "defendant asserted that it timely denied plaintiff's claims based on plaintiff's owner's failure to appear for scheduled examinations under oath (EUOs)." Id. However, the Appellate Term found that "defendant failed to timely request the EUO after receiving plaintiff's bills." Id. As a result, they held that "defendant is precluded from, inter alia, relying upon plaintiff's failure to appear at an EUO as a defense to this action." Id.

The App. Term has thus established a sharp contrast between EUO requests and IMEs. As the App. Div. held in Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 A.D.3d 720 (2d Dep't, 2006), "an insurer may deny a claim retroactively to the date of loss for a claimant's failure to attend IMEs when, and as often as, the insurer may reasonably require." (Internal quotation marks omitted). Such retroactive denial is not available for EUOs that are not requested under the verification time frames, and a failure to attend untimely-requested EUOs is apparently not a coverage issue.

LMK Update

2009-02-12T14:33:00.004-05:00

The newly-shaven David M. Gottlieb, Esq. has a great post over at No-Fault Paradise about the oral arguments before in the Court of Appeals in LMK Psychological Servs., P.C. v. State Farm Mut. Auto. Ins. Co., 46 A.D.3d 1290 (3d Dep't, 2007)

Based on David's post, both State Farm/Rivkin Radler and the Insurance Dep't. appear to be in The Twilight Zone. When it comes to interest, the argument is that providers should file suit immediately once a claim is denied and/or overdue. When it comes to attorney's fees, however, providers should apparently wait until all treatment is finished to consolidate all bills into a single suit to avoid exhausting the attorney's fees.

And, really, let's be honest: the concept of "exhaustion" of attorney's fees is just made up. They invented it out of nowhere for this litigation. Just look at the provisions concerning attorney's fees in the Regs:

11 NYCRR § 65-4.6(b)(1) provides that, in a specific scenario, "[i]f the resolved claim was initially denied, the attorney’s fee shall be $80." § 65-4.6(b)(2) provides "[i]f the resolved claim was overdue but not denied, the attorney’s fee shall not exceed..." The word "claim" in these provisions only makes sense if a claim is an individual bill. Otherwise, each "claim" could have a mixture of bills that were denied and not denied, and these provisions would write themselves out of existence.

Moreover, § 65-4.6(e) provides that "[f]or all other disputes subject to arbitration, subject to the provisions of subdivisions (a) and (c) of this section, the attorney’s fee shall be limited as follows: 20 percent of the amount of first-party benefits, plus interest thereon, awarded by the arbitrator or court, subject to a maximum fee of $850." Thus, at a minimum, each time a court or arbitrator resolves a matter and grants payment to the provider, there is a maximum of $850. There is no "coverage limit" of $850 in attorneys per patient, per provider. This appears nowhere in the Insurance Law, the Mandatory PIP Endorsement, or anywhere else in the Regs.

It is disappointing, but not surprising, that a carrier would attempt to fabricate a new category of coverage limit where none actually exists.

Fraud in the Procurement, Part 2

2009-02-06T15:21:00.002-05:00

The Appellate Division, 4th Department has issued a decision today that is relevant to my post last week regarding the defense of fraudulent procurement.

At the end of that post, I noted that "procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued." I failed to give a citation for this proposition, but the 4th Department has given me a fresh case to cite to.

In Rafi v Rutgers Cas. Ins. Co., the Court holds that "in order to prevail on its affirmative defense, defendant was required to submit proof concerning its underwriting practices with respect to applicants with similar circumstances in order to meet its burden of establishing that it would not have issued the same policy had the correct information been included in the application." 2009 NYSlipOp 00905 (4th Dep't, 2009) (internal quotation marks omitted).

Do note, though, that Rafi does not appear to concern an automobile insurance policy. As such, the reference in that decision to the policy being "void ab initio" due to material misrepresentation is inapplicable to no-fault (and other automobile insurance) litigation. That said, the definition provided in Rafi of what qualifies as a material misrepresentation made in the procurement of the policy should still apply to auto policies.

Where the misrepresentation concerns the insured's state of residence, as is typical allegation in no-fault litigation, this is presumably a simple burden for the carrier to meet. That is, where the insured lives in Queens, but procures an automobile insurance policy with the carrier by falsely stating that she lives in Pennsylvania, the carrier should easily be able to produce an affidavit from underwriting stating that the carrier would never have issued a Pennsylvania policy (which has its own set of specific provisions that comply with PA law) to a New York resident. Instead, the affidavit would presumably allege, had the carrier known the truth, the carrier would have either issued a different policy (that complied with New York law) or no policy at all.

Verification

2009-02-05T16:58:00.002-05:00

The Appellate Term's decision in A.B. Med. Servs., PLLC v. Country-Wide Ins. Co., 2008 NYSlipOp 52651(U) (App. Term, 2d Dep't, 2008) was posted today.

The decision is kind of messy, covering various issues briefly, but there's one interesting point. The Appellate Term found the following: "Since the affidavit of defendant's no-fault litigation supervisor lacks specificity to support the assertion that defendant did not receive the verification it requested, it was insufficient to establish that the verification was still outstanding and, thus, that defendant's time to pay or deny the claims was tolled."

I'm not sure what this means, and I can't find this language in prior no-fault decisions. What level of specificity is now required in a claim rep's affidavit to establish that requested verification was not received? Is it not enough for the rep to simply state that the verification was never received?

In any event, it appears that the Appellate Term has opened up a new avenue of attack on insurers' affidavits.

Excuses, Excuses

2009-01-30T10:29:00.007-05:00

This morning brings us the Appellate Division's decision in Westchester Med. Ctr. v. Hartford Cas. Ins. Co., 2009 NY Slip Op 00528 (App. Div., 2d Dep't, 2009).

There is nothing groundbreaking here, although it does potentially add to the insurance carriers' roster of what counts as a "reasonable excuse" for the purposes of vacating a default. Here, Hartford's "employee reasonably believed that the action had been discontinued after she advised the plaintiff's counsel's office that no-fault benefits had been exhausted, thereby demonstrating a reasonable excuse for the short period of time in which they failed either to appear or to answer the complaint." Id.

I'm not exactly sure how one could reasonably believe an action was discontinued based upon merely communicating a defense to plaintiff's counsel, especially where there does not seem to have been a stipulation of discontinuance ever executed, or even an overt communication by plaintiff's counsel that one would be forthcoming. This seems to me to fall somewhere short of being "reasonable." In any event, the vacatur of the default might still be proper, given the apparent "short" delay and, perhaps more importantly, the issue of policy exhaustion.

Footnote: after having vacated the default, the Supreme Court ordered that the matter be transferred to the District Court ("325(d)-ing" the case, in the parlance), as the damages failed to meet the minimum required for Supreme Court jurisdiction.

Fraud in the Procurement

2009-01-29T16:05:00.003-05:00

Today, we turn to a fundamental aspect of New York's insurance laws. The basic question is: can an insurance carrier cancel a New York automobile insurance policy retroactively? The basic answer is: no. As we'll see, the legal acrobatics involved in getting to that answer have an important impact on no-fault litigation.

Vehicle and Traffic Law ("VTL") § 313(1)(a) provides that "[n]o contract of insurance…shall be terminated by cancellation by the insurer until at least twenty days after mailing to the named insured at the address shown on the policy a notice of termination..."

Thus, "[i]t has long been recognized that this provision supplants an insurance carrier's common-law right to cancel a contract of insurance retroactively on the grounds of fraud or misrepresentation, and mandates that the cancellation of a contract pursuant to its provisions may only be effected prospectively." Liberty Mut. Ins. Co. v. McClellan, 127 A.D.2d 767, 769 (2d Dep’t, 1987). See also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc.3d 8 (App. Term, 2d Dep’t, 2006).

Even where there is an allegation that fraud was committed in the procurement of the insurance policy, "Vehicle and Traffic Law § 313 places the burden on the insurer to discover any fraud before issuing the policy, or as soon as possible thereafter, and protects innocent third parties who may be injured due to the insured’s negligence." Insurance Co. of North America v. Kaplun, 274 A.D.2d 293, 298 (2d Dep’t, 2000). Thus, where a carrier has failed to properly cancel an insurance policy in accordance with VTL § 313 prior to an accident, the carrier "is responsible to any innocent third parties injured in the accident, despite the proof adduced...that [the insured] obtained the policy by misrepresentations." Id.

Nevertheless, "[w]hen the insured brings an action to recover benefits under a policy, the insurance carrier may assert as an affirmative defense that the insured's misrepresentations and/or fraud in obtaining the policy precludes any recovery by the insured." Id. at 298-299.

In no-fault matters, medical providers who treat patients through an assignment of benefits do not qualify as "innocent third parties" for this purpose. See A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., supra.

However, in order to assert such a defense in a no-fault matter, the carrier must present "evidence that plaintiffs' assignors participated in the fraudulent scheme." D.A.V. Chiropractic, P.C. v. GEICO Indem. Co., 21 Misc.3d 138(A) (App. Term, 2d Dep’t, 2008). Where the carrier fails to demonstrate that the assignor was a party to the fraudulent procurement, the carrier fails to even create a triable issue of fact sufficient to defeat a provider’s motion for summary judgment, no less satisfy the burden for the carrier’s own motion for summary judgment. Id.

For the purposes of typical no-fault litigation, either on a motion or at trial, the core issue of this defense will be whether the carrier has submitted sufficient admissible evidence to demonstrate that the assignor was a party to a scheme to fraudulently procure an insurance policy. The procurement is fraudulent where there are material misrepresentations and, had the carrier had known the truth, the policy would not have otherwise been issued.

Happy Holidays

2008-12-23T19:09:00.003-05:00

Thanks for all the kind feedback on my last post. One of my goals for 2009 is to actually dedicate some time to reviving this, so wish me luck.

Happy and healthy holidays to everyone. I hope you made the most of the office holiday parties...

Appealing, to Infinity and Beyond

2008-12-19T15:11:00.002-05:00

Earlier this week, the Appellate Division, 2d Department, granted defendant's leave to appeal from the decision of the Appellate Term in Infinity Health Prods., Ltd. v Eveready Ins. Co., 21 Misc.3d 1 (App. Term, 2d Dep't, 2008).

You'll recall that this decision involved, inter alia, a question as to whether a follow-up verification request done only 27 days after the first request is proper. You'll also further note that the No-Fault Regulations, as per 11 NYCRR § 65-3.6(b), require that a follow-up request be made between 30 to 40 days following the initial request: "At a minimum, if any requested verifications has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was requested..."

Presumably, the appeal is intended to deal with this issue, and particularly the differing interpretations offered by the majority and the dissent concerning New York & Presbyterian Hosp. v. American Transit Ins. Co., 287 A.D.2d 699 (2d Dep't, 2001). In sum, a majority of the Appellate Term (Pesce and Steinhardt, in particular) in Infinity Health Prods. found that the Am. Transit decision "does not permit defendant to disregard the regulation governing the timing of a follow-up request for verification."

Justice Golia, ever a contrarian, dissented in Infinity Health Prods. and opined that in Am. Transit, the Appellate Division found that an early follow-up verification request (27 days later, not 30-40) was proper.

I think Golia missed the mark this time. It appears to me that the issue of the follow-up request's earliness was simply not litigated. The following sentence makes this clear to me: "Here, the defendant timely requested additional verification of the claim from the respondent by letter dated October 5, 1999, and when such verification was not received within 30 days, it sent a timely follow-up letter dated November 1, 1999." 287 A.D.2d at 700. This sentence makes no sense, as November 1, 1999 is obviously less than 30 days from October 5, 1999. Since 30 days had not elapsed, neither the Court nor American Transit could properly come to the conclusion that the "verification was not received within 30 days."

The only way the Appellate Division can get away with making such illogical statements is that they are limited to what issues are actually being litigated and have been preserved for appeal. The plaintiff in the case may not have ever, either before the Supreme Court or the Appellate Division, raised the issue of the follow-up request being too early. Indeed, Golia's states in his Infinity Health Prods. dissent that the issue was never raised by the parties in Am. Transit. 21 Misc.3d at 5. If so, then the App. Div. really had no place raising this issue sua sponte, and so it is no surprise that they didn't.

In short, the effect of early follow-up verification requests was never litigated in New York & Presbyterian Hosp. v. American Transit Ins. Co. The Appellate Term was thus not bound by this "precedent" in deciding Infinity Health Prods., and, in my opinion, the majority came to the proper conclusion upon doing so. For whatever reason, Justice Golia chose to act as if the Am. Transit is binding, but this is entirely illusory.

There's simply no need to second-guess the fact that the Insurance Department put an explicit timeframe on follow-up verification requests. Under the Regulations, they must be made from 30 to 40 days after the first request, assuming the verification was never received. A failure to abide by the timeframe on the side of lateness should have the same effect as being too early: a waiver of the request. There's no logical reason that a violation in one direction should be treated differently than a violation in the other direction.

Let's hope that the Appellate Division uses this opportunity to give effect to the Regulations as written and clear up a piece of outdated and misunderstood case law.

--

P.S. My thanks to David Barshay, Esq., for shaming me into coming out of blogging retirement every once in a while.

An Appeal of Interest

2008-07-01T09:59:00.000-04:00

This morning, the Court of Appeals has granted State Farm leave to appeal the decision of the Appellate Division, Third Department in LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co., 46 A.D.3d 1290 (3d Dep't, 2007).

The Highest Court

2007-11-20T12:00:00.000-05:00

Where a carrier fails to timely request verification of an assignment of benefits, that carrier is precluded from contesting the validity of the assignment. Even when the assignment lacks the signature of the assignor. So sayeth the Court of Appeals today in Hospital for Joint Diseases v. Travelers Prop. Cas. Ins. Co., 2007 NY Slip Op 09067 (Ct. of App., 2007). While The Hon. Eugene F. Pigott, Jr. offers a dissent, six other Judges on the Court side with the majority opinion. The opinions serve as a concise primer on both sides of the issue.

This is, to be sure, a rather extreme result of the line of thinking originally set down by the Court of Appeals in Presbyterian Hosp. in City of N.Y. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997). Nevertheless, the Court has obviously looked into the abyss of the last 10 years and still hasn't blinked.

D'oh-shi

2007-11-16T15:14:00.000-05:00

On March 16, 2007, the Appellate Term, 2d Department issued its decision in Doshi Diagnostic Imaging Servs. v State Farm Ins. Co., 16 Misc.3d 42 (App. Term, 2d Dep't, 2007). In sum, the Court held that, where timely claim verification requests are made to a third party, and such verification is never supplied, a provider's suit for reimbursement of such a claim remains premature.

On August 21, 2007, the App. Term denied Doshi Diagnostic's application for leave to appeal to the Appellate Division. See Doshi Diagnostic Imaging Servs. As Assignee of Laticia Vazquez v State Farm Ins. Co., 2007 NYSlipOp 76290(U) (App. Term, 2d Dep't, 2007).

Now, on November 14, 2007, the Appellate Division has likewise denied Doshi Diagnostic's application for leave to appeal. See Doshi Diagnostic Imaging Services v State Farm Insurance, 2007 NYSlipOp 83478(U) (App. Div., 2d Dep't, 2007).

D'oh!

In other news, the App. Div., 2d Dep't also recently issued its decision in Westchester Med. Ctr. v Countrywide Ins. Co., 2007 NY Slip Op 09024 (App. Div., 2d Dep't, 2007). The decision reads as a basic cut-and-paste of various other App. Div. no-fault decisions, containing standard holdings regarding the sufficiency of proof of mailing and waiver of defenses related to assignments of benefits. In the typical fashion of no-fault appellate decisions, without the benefit of seeing the record on appeal, the holding is rather worthless in a vacuum.

Edwards Nofaulthands

2007-11-09T15:49:00.000-05:00

New York City Civil Court, Kings County Judge, the Honorable Genine D. Edwards, has had two no-fault trial decisions from this week picked up for publication today by the NYS Law Reporting Bureau.

All-Boro Med. Supplies, Inc. v Progressive Northeastern Ins. Co., 2007 NY Slip Op 27458 (Civ. Ct., Kings Cty., 2007), which will be published in the Miscellaneous Reports, concerns EUO requests and also touches on a carrier's burden in proving a lack of medical necessity. Judge Edwards comes to the conclusion that EUO request letters must be sent out within thirty (30) days of receipt of a bill for treatment. Since it seems that the patient actually appeared for the EUO, it's a much tougher call to make than the more often litigated situation of an EUO no-show where non-compliance vitiates coverage.

Delta Diagnostic Radiology, P.C. v MVAIC, 2007 NY Slip Op 52143(U) (Civ. Ct., Kings Cty., 2007), which will not be published in the Miscellaneous Reports, concerns the situation where a carrier issues a proper denial based on a provider's failure to submit a timely claim, containing the requisite language informing the provider that the untimeliness will be excused for reasonable justification, but the provider never actually bothers to submit such information. It appears that the Plaintiff did attempt to submit written justification one month prior to trial, but presumably this would not avoid the conclusion that the Complaint itself remains premature.

FWIW, now might be as good a time as any to mention that I began operations of Law Offices of Damin J. Toell, P.C. a few months ago. For the most part, I'm currently handling no-fault cases on behalf of providers. The business contact info is as follows:

Law Offices of Damin J. Toell, P.C.
P.O. Box 245112
Brooklyn, New York 11224
516-204-4775 (phone)
516-394-0855 (fax)

Business-related email should be directed to: djtoellpc @ gmail . com

Have a good weekend, all.

Fraudulent Fraud

2007-09-25T13:25:00.000-04:00

At the suggestion (almost a threat, really) of David M. Gottleib, Esq., I'm reposting a comment of mine from the previous entry. An anonymous insurance defense attorney asked: "Provider fraud should NEVER be waived. When did fraud stop being fraud?" I said:

The better question is actually: when did fraud start being fraud? Answer: when catchphrases got the better of good lawyering.

You won't find the word "fraud" anywhere in the majority or concurring opinions in Central General Hosp. v. Chubb, 90 N.Y.2d 195 (1997). You'll find a single variation of the word, namely "fraudulent" in Presbyterian Hosp. v. Maryland Cas. Co., 90 N.Y.2d 274 (1997), but only in the majority opinion, and not in the way carriers like: "The tradeoff of the no-fault reform still allows carriers to contest ill-founded, illegitimate and fraudulent claims, but within a strict, short-leashed contestable period and process designed to avoid prejudice and red-tape dilatory practices." New York's seminal no-fault cases don't create a solid foundation for anything that should be referred to as a "fraud defense."

Indeed, "fraud" isn't the word you want to use if you're a good insurance defense attorney. You want to say "lack of coverage." The Appellate Division, Second Department has reminded us a few times of this distinction, but it still goes basically unnoticed. Then again, "lack of coverage" isn't a catchphrase that instills fear in anyone's heart.

All of that said, I think there's a solid lack-of-coverage argument to be made in the carriers' favor in Fair Price. Nevertheless, the defense bar is getting itself wrapped up too much in the language of fraud, and to the detriment of their clients' interests.
--
As an addendum to those comments, I'd recommend that eager defense attorneys begin their research with App. Div. decisions such as Matter of Eagle Ins. Co. v. Davis, 22 A.D.3d 846 (2d Dep't, 2005). There, regarding an allegation, made as part of a petition to stay a UM arbitration, that an alleged collision was fraudulent in nature, the Court held: "When a petition raises an issue of fact as to whether the automobile collision giving rise to the underlying request for arbitration was deliberate or intentional, the issue of fraud is subsumed under the coverage issue. Evidence of such fraud should be considered in determining the broader coverage issue." Id. (internal citations omitted).

More and More Appealing

2007-09-22T22:23:00.000-04:00

In a move that likely fell under most radars, the Appellate Division, 2d Department has granted the defendant's motion for leave to appeal their decision in Fair Price Medical Supply Corp. v. Travelers Indem. Co., 42 A.D.3d 277 (2d Dep't, 2007) to the Court of Appeals. The App. Div. has posted the motion decision.

I have a feeling that the judges are going to get less and less sympathetic to the defendant's position the higher up the appeal goes on the food chain. Personally, I don't see the Court of Appeals reconsidering the underlying rationale of Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 (1997), no matter how much some of us would like that to occur in light of the state of things ten years on.

I Always Feel Like Somebody's Watching Me

2007-08-28T17:28:00.000-04:00

In Delta Diagnostic Radiology, P.C. v Chubb Group of Ins, 2007 NYSlipOp 27345 (App. Term, 2d Dep't, 2007), the Appellate Term has finally made explicit, as I previously argued on this blog, that a party need not produce an affidavit from someone whose duty it is to ensure compliance with standard procedures when attempting to create a presumption of mailing. Rather than expressly overturning their own prior decisions on the matter, the App. Term simply stated that such prior decisions "should not be interpreted" as saying what they obviously say. In any event, I'm glad that the issue was finally presented for appeal. We'll see how long it takes for this ruling to filter its way down to the Civil and District Courts.

Shock the Conscience

2007-07-24T13:31:00.000-04:00

In a decision of likely interest to defense counsel, Judge Howard S. Miller of the District Court, Nassau County, Hempstead Part issued a Decision/Order concerning settlement stipulations often done by the law firm of Israel, Israel & Purdy, LLP. See Omega Diagnostic Imaging, P.C. v State Farm Mut. Ins. Co., 2007 NY Slip Op 51405(U) (Dist. Ct., Nass. Cty., 2007). Typically, Israel puts a clause in their settlement stips that provide that, should the settled-for amount not be paid within 30 (or however many) days, judgment will be entered for the full amount demanded in the Complaint, including full statutory interest, et al.

Judge Miller held (correctly, in my opinion) that there is no basis to stay enforcement of the portion of the stipulation in question. The Court cited to ABCO Refrigeration Supply Corp. v Designs by Keiser Corp., 239 A.D.2d 165 (1st Dep't, 1997) for the proposition that, there being no allegation of fraud, mistake, etc., there is no basis to vacate a stipulation that essentially calls for the defendant to pay the full amount of the Complaint.

State Farm, by Picciano & Scahill, P.C., cited to some Second Department case law for the proposition that unconscionable stipulations should not be enforced. Judge Miller found State Farm's cited case law to be distinguishable and/or sui generis. In any event, Judge Miller found that $2,578, the difference between the settled-for amount and the amount of the judgment, did not shock the Court's conscience.

Those Israel settlement stips are potentially dangerous, to be sure, but things would work a lot more smoothly on a lot of fronts if the carriers made payments quickly, anyway.

Barnes & No-fault

2007-07-18T14:12:00.000-04:00

According to the sidebar on David M. Gottlieb, Esq.'s blog, No-Fault Paradise, he's currently re-reading David Foster Wallace's 1996 novel 'Infinite Jest'. I admire that Mr. Gottlieb is still able to get any reading done; I have had a tough time of keeping at it since law school. I also admire that he has been able to finish 'Infinite Jest' (more than once?) and wants to go back for more. I tried starting it a few times, the most recent being August 14, 2003, when the Northeast had a blackout. Somehow it fails to grab me enough. I found Wallace's debut novel, 1987's 'The Broom of the System,' to be a bit more agreeable. I think I finished it, or at least came close.

As to my avoidance of 'Infinite Jest,' I would confess that I am afraid of Big Important Novels, but I don't think it's true. I spent much of my law school years (and tapering off thereafter) chewing up books like 'J R' and 'A Frolic of his Own' by William Gaddis (I think I got through the first chapter or two of 'The Recognitions' at one point), most everything by Don DeLillo, Thomas Pynchon's 'V.', most of the core works of Thomas Bernhard (which I guess don't quite qualify as 'big'), and even wannabe fare like Jonathan Franzen's 'The Corrections.' Then again, despite owning perhaps several hundred books, I can no longer seem to sit down and actually read any. Oddly enough, the subway commute I had during most of law school (Williamsburg<-->Greenwich Village) provided an ideal, structured time for plowing through books at a decent pace.

Carsherchesputin

2007-07-18T13:03:00.000-04:00

I just wanted to bring to the top a comment posted last night to an old post on this blog:

At Tuesday, July 17, 2007 8:45:00 PM, Anonymous said...

Things have been heating up in the Carothers, Sher, Chess and Rasputin arena as the connections we all know exist are surfacing so ever slightly...What an industry this No Fault Insurance is Very challenging to prosecutors and law enforcement..sometimes too challenging LOL

While one of those references may seem a bit obtuse, it does all fit together, one way or another. I have no clue who our anonymous commenter is, but he/she is more than welcome to continue contributing, preferably to more recent and visible posts. :)

Giving Someone a Widgie

2007-06-15T12:17:00.001-04:00

Below please find a new widget I have created for the blog. Feel free to click "copy me" (which can be found when you mouseover the widget's title bar) and embed on your own site or blog. (Don't worry, I'm not holding my breath.)

Thanks to Thomas Swartz, Esq. for the tip.

Schepp, Part X_X

2007-06-11T18:55:00.000-04:00

The Appellate Term, Second Department released its long awaited decisions today in Boston Post Rd. Med. Imaging, P.C. a/a/o Adrian Black v. Progressive Ins. Co., 2007 NYSlipOp 51173(U) (App. Term, 2d Dep't, 2007) and Boston Post Rd. Med. Imaging, P.C. a/a/o Ira Bright v. Progressive Ins. Co., 2007 NYSlipOp 51174(U) (App. Term, 2d Dep't, 2007). Judge Gianelli of District Court, Nassau County, Hempstead Part had granted Progressive, represented by McDonnell & Adels, summary judgment as to their contention that the provider was not a properly licensed entity under the meaning of State Farm v. Mallela, 4 NY3d 313 (2005), and hence not entitled to no-fault benefits.

Justices Rudolph, McCabe, and Tanenbaum don't see it that way. In their estimation, the evidence proffered by Progressive was insufficient to satisfy Mallela. Of course, they give no guidance as to why the evidence was insufficient or what evidence would actually be sufficient.

Very interestingly, the App. Term does implicitly hold that, if proven, the fact that a provider sold its accounts receivable would constitute a defense to no-fault payment. Compare, Andrew Carothers, M.D., P.C. v GEICO Indem. Co., 13 Misc 3d 549 (Civ. Ct., Kings Cty., 2006; Battaglia, J.). Somehow, though, an executed contract selling said accounts receivable (along with an admission of such contract by provider's counsel, but with a differing interpretation) does not prove same. The App. Term's evidentiary rationale is too weak to suffice as a explanation for their decision; we still live under the rule that allegations made in a motion are deemed admitted unless rebutted. Kuehne & Nagel v. Baiden, 36 NY2d 539 (1975); Schneider Fuel Oil, Inc. v. DeGennaro, 238 A.D.2d 495 (2d Dep't, 1997). It has also been true since at least 1899 that "[i]n a civil action[,] the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever or to whomsoever made." Reed v. McCord, 160 N.Y. 330, 341 (1899). Perhaps the Appellate Term is waiting for an opportunity to physically observe the execution of said contract.

Either way, despite that one glimmer of hope, at this point the rulings do not bode well for the carriers in the ongoing litigation with Dr. Schepp in Supreme Court, Nassau County or the numerous suits involving Andrew Carothers, M.D., P.C. (which was the successor entity to Dr. Schepp's Boston Post Road Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Deajess Medical Imaging, P.C.). Presumably the carriers are hoping that the judges overseeing those matters will not be as gun-shy as the App. Term was in the decisions released today.

A Lifelong Swan Song

2007-06-05T17:22:00.000-04:00

For what its worth, the BG&S website has some articles I've authored, each of which should have been published by now in "The Suffolk Lawyer," which is put out by The Suffolk County Bar Association:

All of the articles should be of interest to readers of this blog. Enjoy.

A Short Notice

2007-06-05T13:14:00.000-04:00

Please be advised that I am no longer associated with the office of Bruno, Gerbino & Soriano, LLP. I can still be contacted at djtoell @ gmail.com. A resume is available upon request for any interested persons. For the immediate future, I will be in Civil Court, Kings County for per diem appearances.

Let's Get Ready To Humble

2007-04-27T19:12:00.000-04:00

The App. Div., 2d Dep't has some very spiffy PDF files available for the three decisions discussed yesterday, in case you happen to like attaching such spiffy-looking documents to your motion papers (or if you're Skip Short, Esq. and deservedly want to frame them): A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007).

I also can't wait to see who throws the next punch in the battle royale occurring in the comments section of my previous post. Can anyone top a slapdown from David M. Barshay, Esq.? I'm thinking it will take another named partner. Then again, the looming spectre of Skip Short, and the results he got in the aforementioned cases, may provide the ultimate trump card...

Hell: Experiencing Intermittent Flurries

2007-04-26T16:32:00.000-04:00

Three highly important decisions were put out today by the Appellate Division, Second Department: A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 2007 NY Slip Op 03636 (App. Div., 2d Dep't, 2007); A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 2007 NY Slip Op 03635 (App. Div., 2d Dep't, 2007); and New York Univ. Hosp. Rusk Inst. v Government Employees Ins. Co., 2007 NY Slip Op 03671 (App. Div., 2d Dep't, 2007). These decisions reverse (both specifically and in practical terms) a host of Appellate Term, Second Department cases whereby it was held that a no-fault denial of claim form (NF-10) would be legally insufficient if it merely stated that said denial was based upon the results of a peer review or IME. That is, if a denial were based upon the results of a peer review or IME, the Appellate Term repeatedly held that a carrier had to issue a denial that either attached the peer/IME report or otherwise included the medical rationale of said report.

The Appellate Division's decision from today in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. sets out the thrust of their reversal of the Appellate Term:

"To the extent the Appellate Term's order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8[b][4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4[c][11]), it would have so provided."

This is a seismic change with a level of force far beyond the Richter Scale in the realm of no-fault medical necessity litigation and arbitrations. It also solidifies a trend by the Appellate Division to pull back the reins on some of the more "creative" Appellate Term decisions.

I expect to see a legion of defense attorneys waving these decisions around in court tomorrow...

Gimme Gimme Gimme (Amendments After Midnight)

2007-03-27T12:17:00.000-04:00

Please note that on March 14, 2007, the Third Amendment to Regulation 68-C (11 NYCRR § 65-3) and the Fourth Amendment to Regulation 68-D (11 NYCRR § 65-4) went into effect. The amendments concern arbitration procedures when disputes arise as to which insurance carrier is required to cover a given claim. My, how the New Regs have grown up since April 2002!

Whole Wheat Rollin'

2007-03-23T10:06:00.000-04:00

Please take notice of the recent addition to my NY blawg roll on the left side of your screen: New York Legal Update by Thomas Swartz, Esq., a former court attorney with the App. Div., 2d Dep't. After only a few weeks, Mr. Swartz has developed an entertaining and informative blawg, so let's hope it becomes a fixture for NY practitioners (i.e., so that Mr. Swartz can't take it with him when his lease runs out).

Having One's Priorities in Order

2007-03-22T19:23:00.000-04:00

Just when you thought it was safe to do online research on New York No-Fault Law, I make my triumphant return. Many thanks to the likes of David Barshay, Esq., Vincent Pirro, Esq., and many others who have accosted me in public for my failure to keep the blog updated. I could give you some excuses, but a) they don't even sound believable to me, and b) you wouldn't care, anyway, would you?

Onto the important stuff.

The Court of Appeals issued its decision yesterday in Nyack Hosp. v General Motors Acceptance Corp., 2007 NY Slip Op 02439 (Ct. of App., 2007) (There is also a PDF version available).

Oral arguments were heard back on Feb. 8. Your humble blogger was lucky enough to discuss the matter with both Joseph Henig, Esq. (counsel for Appellant-Plaintiff) and Craig J. Freiberg, Esq. (counsel for Respondent-Defendant). Both expressed valid concerns over the outcome of the case, and it is interesting to see how the Court worked out such a seemingly bland technical matter; they also seem to me to have come to the correct conclusion.

In sum, the Court held that a claim is not considered received for purposes of attaining priority of payment until all requested verification has been provided. Priority of payment is crucial where, as in Nyack v. GMAC, the policy is or is about to be exhausted, and the carrier therefore either cannot pay the claim at all or can only pay a portion thereof. Nyack Hospital, through Mr. Henig, contended that they should have received an additional $15,009.21, representing the difference in basic economic loss coverage available as of the day their claim was received by GMAC as opposed to the day on which GMAC received their responses to the verification requests.

Still, all is not perfect for the carriers. The Court held that a claim acquires priority status even if the eligible injured person has not yet submitted their OBEL ("Optional Basic Economic Loss") coverage election (see, if you want to fall asleep, the prescribed OBEL coverage endorsement at 11 NYCRR § 65-1.2), at least with respect to those claims or portions of claims that can still be paid out under the core $50,000 of basic economic loss coverage. So, while GMAC was justified in waiting some amount of time to give Nyack's claims priority, it should not have waiting for the OBEL election.

In hard numbers on the facts of this case, this means that Nyack will be getting a judgment for $863.21, representing the amount of basic economic loss coverage that GMAC paid out on other claims from the time that Nyack provided verification for its claim and GMAC received the eligible injured person's OBEL election. Attorney's fees will be a whopping $172.64.

Even if the final outcome in this matter was more or less trivial in comparison to the dollar amount being sought, I have little doubt that the impact of today's decision will be wide-reaching. Hospitals often submit the no-fault claims with the largest monetary value as to any given EIP (Nyack's claim alone was in excess of the coverage limits), and determining priority of payment can easily be a difference of tens of thousands of dollars.

--

Generally speaking, it is a rarity for the Court of Appeals to take up a no-fault case. However, yesterday they granted leave for appeal in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. See the App. Div., 2d Dep't's original decision at Hosp. for Joint Diseases v. Travelers, 34 A.D.3d 532 (App. Div., 2d Dep't, 2006). The decision is too vague to really set down the nature of the dispute, so any commentary from those familiar with the case would be appreciated.

--

Dr. Andrew Carothers, M.D. is scheduled to be deposed this coming Tuesday, March 27 with regard to Matter of Andrew Carothers, M.D., P.C. v Insurance Cos. Represented by Bruno, Gerbino & Soriano LLP and Freiberg & Peck, LLP, 13 Misc.3d 970 (Civ. Ct., Richmond Cty., 2006) and numerous other matters pending in Richmond Cty.

No-Fault Song Parody Contest. (Seriously.)

2007-01-30T13:45:00.000-05:00

I'm inclined to question the fitness to practice law of my friend Matthew S. Lerner, Esq. of the New York Civil Law blawg.

Today, he announced a no-fault-based song parody contest. He also points out that Deney Terrio's last name rhymes with the last name of former NYS Insurance Department Superintendent Gregory V. Serio (as in Med. Soc'y v. Serio, 100 N.Y.2d 854 (2003)). I'm a bit frightened to even mention that he (allegedly) makes something else rhyme with the last name of Dr. Robert Chandran Mallela, M.D. (as in State Farm v. Mallela, 4 N.Y.3d 313 (2005)).

I may just close down this blog entirely if anyone starts rhyming Frances J. Roggio (as in Roggio v. Nationwide Mut. Ins. Co., 66 N.Y.2d 260 (1985)); Karen DeGuisto (as in Presbyterian Hosp. a/a/o DeGuisto v. Maryland Cas. Co., 90 N.Y.2d 274 (1997)); or Pamela Mandresh (as in Central Gen. Hosp. a/a/o Mandresh v. Chubb Group of Ins. Cos., 90 N.Y.2d 195 (1997)).

Which Judicial District's Grievance Committee should I be contacting for Matthew? ;)

We've Gone on Holiday by Mistake

2007-01-29T19:11:00.000-05:00

Sorry about the recent lull in updates. Between the holidays, and then a post-holiday excursion to Vegas (and the post-excursion crush of work that followed it), things have been a bit diffuse. Anyway, with some luck, more regular updates will be resuming.

As far as the pending matters involving the EBT of Andrew Carothers, M.D. as ordered by Civil Court, Richmond County last year (see order here), another decision and order is pending, and an update on same will come at the appropriate time.

And five points to whoever spots the source of the quote for this post's title. ;)

Bring the Beat Back

2007-01-26T14:13:00.000-05:00

Perhaps the Appellate Division, Second Department is reading this blog. Probably not. Either way, though, the App. Div. has overturned the decision by Justice Phelan of Supreme Court, Nassau County wherein it was held that insurance carriers were precluded from raising the defense of a lack of medical necessity as against a no-fault claim brought by an MRI provider. See Long Is. Radiology v Allstate Ins. Co., 2007 NY Slip Op 00496 (App. Div., 2d Dep't, 2007). You can see Justice Phelan's original order here.

As one might suspect, I think the App. Div. got it very, very right. And while they're surely not reading this blog, they did cite to two different cases I've discussed on the topic (see West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006), and Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 (Civ. Ct., Kings Cty., 2005)).

The core of the App. Div.'s new decision is as follows:

An assignee stands in the shoes of an assignor and thus acquires no greater rights than its assignor. Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits. (Citations and internal quotation marks omitted.)

The various insurance defense firms who prosecuted the Long Is. Radiology appeal should be commended for their fine work.

2007: What the *%$! is Going On?

2006-12-27T02:11:00.000-05:00

The reader is directed to No-Fault Paradise, a new entry in the highly-specific genre of New York no-fault automobile insurance law blogs from David M. Gottlieb, Esq., an attorney at Edward Shapiro, P.C., a prolific no-fault plaintiff's firm. Mr. Gottlieb's Civil Court, Queens County, Room 101 Seating Chart is both completely accurate and incredibly funny.

Thanks much also to a recent anonymous poster for some lively debate on the recent Appellate Division, 2d Dep't decision in Fogel v. Progressive.

In a bit of housekeeping news, please note that Erik B. Lutwin, Esq. has moved on in his professional career. Your humble blawger wishes Mr. Lutwin well. For the time being, I am the sole contributor to this blawg, but Mr. Lutwin was the one who got the ball rolling here, and he also devised the catchy title. Not having a fellow contributor makes the device of using the royal "we" that much more of a contrivance, so you'll forgive me if I continue to do so now and again.

Happy various holidays to all, and a Happy New Year, as well. Thanks especially to the two biggest long-running supporters of my site, Matthew S. Lerner, Esq. of New York Civil Law and Nicole L. Black, Esq. of Sui Generis. They provide much more traffic my way than the other way around, I'm sure, and I'm grateful for how often they feature my posts.

--

It's that time again, right
Kick out the old, welcome the new
Make your New Year's resolutions now!

...Go!

(And a very Happy New Year from BBC1)

Fogel: Out

2006-12-20T19:30:00.000-05:00

As 2006 draws to a close, the Appellate Dvision, 2d Department has given us one of the most important no-fault decisions of the year. In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 2006 NY Slip Op 09604 (App. Div, 2d Dep't, 2006), a unanimous Court overturned that portion of the prior Appellate Term, 2d Dep't decision that held that an assignor's failure to appear for an independent medical examination ("IME") prior to the subject services having been rendered results only in a rebuttal of the presumption of medical necessity in the favor of the plaintiff provider. Instead, although agreeing with the concurrence/dissent of Golia, J. in the App. Term Fogel case and the Appellate Term, 1st Department decision in Inwood Hill Med., P.C. v General Assur. Co., 2005 NYSlipOp 25437 (App. Term, 1st Dep't, 2005), the App. Div. has gone even further. They now hold that failure to appear at an IME is a violation of a condition precedent to no-fault coverage, regardless of when the no-show occurred as compared with the date(s) of service of a given claim. Indeed, the App. Div. now holds that a carrier may deny claims "retroactively to the date of loss" when a no-show occurs.

This has numerous potential implications. A denial of coverage retroactive to the date of the loss should render the defense one that survives preclusion regardless of whether it is preserved in a timely denial of claim form. See generally, Central General v. Chubb, 90 N.Y.2d 195 (1997). Other explicit conditions precedent to coverage listed in the PIP Endorsement (11 NYCRR § 65-1.1) should also be subject to the same rule.

Misunderestimated

2006-12-12T13:50:00.000-05:00

A special thanks to JDjive for passing along a bunch of traffic this morning to my incredibly lame blog. Many of the visitors who clicked over here have spent a significant amount of time looking at various posts, reading the cited case law, etc. I'm thinking the intended insult had the opposite effect, but I'm sure I'm too lame to understand the difference...

In other news, the Appellate Division, Second Department will hear the appeals in Fair Price a/a/o Novelo v. Travelers on 12/14/06 and Mandarino v. Travelers on 12/19/06.

Keeping It Real, Part II

2006-12-05T19:16:00.000-05:00

By way of a long-overdue sequel in this occasional series of posts, the reader is directed to the recently-published decision in Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 26483 (App. Term, 2d Dep't, 2006) as the latest example of the Appellate Term applying real law rather than fashioning some other rule purportedly designed to conform to the legislative intent of no-fault.

In particular, the Dan Med. decision stands for the proposition that a motion for summary judgment must be supported by evidence in admissible form sufficient to demonstrate the absence of any triable issues of fact. As a result, in order to demonstrate prima facie entitlement to summary judgment, a no-fault plaintiff must proffer the relevant claim forms in a manner that complies with the business record exception to hearsay in CPLR R. 4518. Upon a failure to proffer such evidence in support of plaintiff's motion for summary judgment, same is to be denied. This is true regardless of whether plaintiff has proven that such forms were submitted to and received by the insurance carrier; while something may have been submitted and received, that something must also be put forth in admissible form.

Note that, in order for the issue to be preserved for appeal, a defendant must raise those defects in plaintiff's proof in their written opposition. Should defendant fail to raise such defects on the record, an appellate court is unable to review a lower court's determination that plaintiff's motion was sufficient. See Bath Med. Supply, Inc. v Allstate Indem. Co., 2006 NYSlipOp 52273(U) (App. Term, 2d Dep't, 2006), concurring opinion of Weston Patterson, J.

On the other hand, in certain circumstances, the Appellate Term still continues to impose artificial (unreal?) law that appears to have no particular basis in statutory law or the regulations, and indeed may even be contrary to the plain text of such. See, e.g., Boai Zhong Yi Acupuncture Servs. P.C. v Progressive Cas. Ins. Co., 2006 NYSlipOp 26485 (App. Term, 2d Dep't, 2006). The reader is directed in particular to the lengthy (purported) concurrence therein of Golia, J.

'Blawg' sounds somewhat onomatopoeic

2006-11-29T01:50:00.000-05:00

The reader is directed to the search engines at Blawg.com and Justia Blawg Search, both of which have been kind (smart? gullible?) enough to list us.

I hope everyone had a nice Thanksgiving, but sadly it's time to hunker down and deal with a month's worth of rush items until things quiet down once again at the end of December. Of course, we'll continue to provide all relevant updates, but there has not been much to report as of late.

Updates on the ongoing litigation in Matter of Carothers v Insurance Cos. Represented by Bruno Gerbino & Soriano LLP & Freiberg & Peck LLP will be forthcoming as appropriate.

Yeah, well, you know, that's just, like, your opinion, man.

2006-11-20T13:00:00.000-05:00

The reader is directed to an Opinion Letter from the Office of the General Counsel to the NYS Insurance Department, entitled "Electronic Record Retention of No-Fault Insurance Claim Forms," and dated October 25, 2006.

The following is an excerpt from the Opinion, and presents the basic issues involved:

Questions Presented:

1. Do the New York State Electronic Signatures and Records Act ("ESRA") and the federal Electronic Signatures in Global and National Commerce Act (E-Sign) obligate an insurer to accept electronic records and signatures in connection with No-Fault insurance claim forms?

2. May a digitally reproduced NF-AOB serve as an original document for purposes of a verification request by an insurer under Section 65-3.11(c) of N.Y. Comp. Codes R. & Regs. tit. 11, Part 65 (Regulation 68)?

Conclusions:

1. No. Neither E-Sign nor ESRA obligates an insurer to accept electronic records or signatures.

2. Yes, provided that it is accurate and accessible as required under Section 7001(d)(1) of E-Sign and the insurer consents to the use of an electronic record as an original document.

The Opinion is rather thorough, so all interested are recommended to read it in full. Note that the question is presented on behalf of "MRI Corporation X" and that particular entity uses digital signatures of its doctors to 'sign' various documents. "MRI Corporation X" basically appears to be asking for permission to use scanned-in signatures of its doctors, a practice it is already admittedly employing. One can only wonder who "MRI Corporation X" is.

On what is surely an entirely unrelated matter, here is an update for all those interested regarding Andrew Carothers, M.D., P.C. Please note that the plaintiff in Matter of Carothers v Insurance Cos. Represented by Bruno Gerbino & Soriano LLP & Freiberg & Peck LLP, 2006 NY Slip Op 26372 (Civ. Ct., Richmond Cty., 2006) recently brought a motion, by Order to Show Cause, described therein as one to renew and reargue said decision. Prior to the return date (this past Friday, November 17, 2006 at 2:30 PM), however, plaintiff withdrew the motion. Both a Notice of Appeal and a purported Amended Notice of Appeal are currently pending. No stay has been granted either by the Appellate Term or the Civil Court. Under the terms of the subject Order, today is the final day by which Dr. Carothers is to be produced for an EBT. Anyone taking bets?

Far to Go

2006-11-16T16:06:00.000-05:00

Sorry for the lack of recent updates, but the undersigned has been swamped this week, and there haven't been any developments of note. The Appellate Term, 2d Department, for example, hasn't published any decisions since October 25. Wherefore art thou, Golia? (And Pesce, and McCabe, and Weston Patterson, and Belen, and Rudolph, and...)

Direct Access to Physical Therapy

2006-11-10T18:52:00.000-05:00

Currently, physical therapy treatment (as rendered by a licensed physical therapist) must be provided pursuant to a referral by a licensed physician, dentist, podiatrist or nurse practitioner. See Education Law § 6731(c). Effective November 23, 2006, however, § 6731(c) is being amended, and subsection (d) is being added, to read as follows, allowing patients some limited direct access to P.T.:

"c. Such treatment shall be rendered pursuant to a referral which may be directive as to treatment by a licensed physician, dentist, podiatrist or nurse practitioner and in accordance with their diagnosis, except as provided in subdivision d of this section.

d. Such treatment may be rendered by a licensed physical therapist for ten visits or thirty days, whichever shall occur first, without a referral from a physician, dentist, podiatrist or nurse practitioner provided that:

The licensed physical therapist has practiced physical therapy on a full time basis equivalent to not less than three years.

Each physical therapist licensed pursuant to this article shall provide written notice to each patient receiving treatment absent a referral from a physician, dentist, podiatrist or nurse practitioner that physical therapy may not be covered by the patient's health care plan or insurer without such a referral and that such treatment may be a covered expense if rendered pursuant to a referral. The physical therapist shall keep on file with the patient's records a form attesting to the patient's notice of such advice. Such form shall be in duplicate, with one copy to be retained by the patient, signed and dated by both the physical therapist and the patient in such form as prescribed pursuant to regulations promulgated by the commissioner."

However, and most importantly for readers of this blog, it should be noted that the Insurance Law is being modified in such a way as to make P.T. rendered without a referral ineligible for no-fault reimbursement. § 5102(a)(1)(ii) currently defines "basic economic loss" (that which is reimbursable under no-fault) as, inter alia, necessary expenses incurred for "psychiatric, physical and occupational therapy and rehabilitation." Effective November 23, 2006 (the same date as the above-mentioned amendment to the Education Law), however, § 5102(a)(1)(ii) is amended to refer to necessary expenses incurred for "psychiatric, physical therapy (provided that treatment is rendered pursuant to a referral) and occupational therapy and rehabilitation." The end result is that, for no-fault reimbursement purposes, P.T. will still require a referral. Providers, patients, claims examiners, and attorneys should all be aware of these changes and protect their interests accordingly.

You Keep Me Hangin' On

2006-11-08T12:51:00.000-05:00

Following up with yesterday's post, it appears, from vote tallies released in the media, that the following Civil and District Court judges have been elected to the Supreme Courts in the following counties:

Civil/Kings:
Hon. Karen B. Rothenberg
Hon. Jack M. Battaglia

This leaves the role of Supervising Judge of Civil/Kings open, as Judge Rothenberg currently holds that position. Note also that Hon. Delores J. Thomas appears to have not been elected, and two Republicans actually won seats on the Court.

Civil/Queens:
Hon. Kevin J. Kerrigan
Hon. Howard G. Lane

District/Nassau:
Hon. Joel Asarch
Hon. Randy Sue Marber

In District/Nassau, Hon. Valerie J. Bullard and Hon. Scott Fairgrieve have been re-elected to the seats they currently hold.

If I have missed the election results pertaining to any other judges that commonly handle no-fault matters, please let me know.

The Supremes

2006-11-07T14:37:00.000-05:00

Today, of course, is Election Day. Please be advised that various New York City Civil Court and County District Court judges from Long Island are running for the Supreme Court. Please be further advised that, if elected, they will rarely handle any further no-fault matters. One is tempted to suggest that you vote accordingly... ;)

The Two Ships Peerless

2006-11-03T09:59:00.000-05:00

Although not a no-fault matter, the decision in Egon J. Salmon, Inc. v Tamarin, 2006 NY Slip Op 26443 (Civ. Ct., Richmond Cty., 2006) may be of interest to NYC no-fault practitioners. In a show of jurisprudential fortitude that would surely overcome a lesser jurist, Hon. Philip S. Straniere has analyzed New York City Civil Court Act § 1815. It should be pointed out that there are actually two entirely different sections numbered 1815 in the NYCCCA. Lexis, for example, has a footnote pointing out this fact if you attempt to retrieve it. It should also be noted that this is the least of the absurdities involved with that section.

Long story short, Judge Straniere found the section unconstitutional.

And, in a no-fault-related matter, this is not the first time that Judge Straniere has held a section of the NYCCCA to be unconstitutional. See Richmond Pain Mgt. v State Farm Mut. Auto. Ins. Co., 2004 NY Slip Op 50288(U) (Civ. Ct., Richmond Cty., 2004). Although causality is difficult to determine (just ask an engineer preparing a low-impact study for a no-fault case), Article 4 of the NYCCCA was eventually amended by the Legislature. Perhaps Judge Straniere's opinion in Egon J. Salmon, Inc. v Tamarin will remind the Legislature that § 1815 (one of them, anyway) is also ripe for amendment.

Form of a...

2006-11-01T16:51:00.000-05:00

Many visitors to this blog come here in search of the no-fault forms promulgated by the Insurance Department. To that end, please refer to this PDF file at the Ins. Dep't's website. It contains the following (titles are provided for the more commonly-used ones): NF-1A, NF-1B, NF-2 (Application for Benefits), NF-3 (Verification of Treatment), NF-4 (Verification of Hospital Treatment), NF-5 (Hospital Facility Form), NF-6 (Employer Wage Verification), NF-7 (Verification of Self-Employment), NF-8, NF-9, NF-10 (Denial of Claim Form), NF-11, NF-12, NF-13, and NF-AOB (Assignment of Benefits). For litigation purposes, at least, the typical no-fault medical claim will require an NF-2, NF-3 (or NF-4/5 if a hospital rendered treatment), NF-10 (if the claim was denied), and an NF-AOB. Beware of providers who modify the NF-3 and NF-AOB forms.

Re: the title of this entry: kudos to anyone who can come up with the most appropriate Wonder Twins power.

Chewing Away at the Basic Fabric of Civilization

2006-11-01T02:38:00.000-05:00

As usual, the late Long Island-native author William Gaddis puts it all in perspective. In A Frolic of His Own, a 1994 novel consisting of deposition transcripts, court opinions, etc., the main protagonist, Oscar Crease, provides us with the following tirade. His words are directed at an adjuster from his insurance carrier and describe his frustration with his carrier's professed immunity from liability for non-economic damages after, somehow, Oscar made his own car drive over himself. I'll leave that mystery, and many more treasures, for the adventurous among us.

The protection of the No Fault statutes do you think I can't see through that? They're not protecting me they're protecting you insurance people with this No Fault idea it's not even an idea, it's a jerrybuilt evasion of reality of course someone's at fault. Someone's always at fault. It's all a cheap dodge chewing away at the basic fabric of civilization to replace it with a criminal mind's utopia where no one's responsible for the consequences of his actions, isn't that what the social contract is all about?
* * *
I see all around us the criminal mind at large appropriating, literally stealing the fruits of the creative mind and the dedicated labours of others without even blinking, isn't that what's at the heart of this cancerous No Fault epidemic? this license for delinquency? Society created the criminal, society's responsible and so no one's responsible, isn't that the size of it? demolishing the pillar civilization rests upon, each individual's responsibility for the consequences of his own actions? and the natural law which frames the concept of negligence, let alone deliberate transgression goes out the window and the Constitution with it, are you aware of that? Are you aware that you're toying with one of the first laws of physical nature itself?
- pgs. 222-3, New York: Scribner (trade edition, 1995) (all spelling, punctuation, capitalization, etc. as in the original).

So, dear readers, fellow attorneys, insurance company representatives, judicial staffers, medical providers and management companies, factoring (and 'secured loan') company employees, and others: have fun today as you toy with one of the first laws of physical nature itself. And, please, be careful.

Dr. Butcher, M.D. (Medical Deviate)

2006-10-31T12:33:00.000-05:00

So am I the only one who dressed up as a no-fault-related character for Halloween? Three guesses as to which doctor I am portraying as a zombie...

And, yes, Dr. Butcher, M.D. is a real movie title.

Will Wisdom Prevail?

2006-10-29T23:23:00.000-05:00

Sources tell me that a decision in Fair Price v. Travelers should be expected early next year. What do you think the decision will be? You can let us know by clicking below or commenting to this post.

Marvelous Shlomo S. Hagler

2006-10-27T12:18:00.000-04:00

The reader is directed to the October 13, 2006 edition of the New York Law Journal for an article entitled 'The Thicket of First-Party No-Fault Benefits Actions' by The Hon. Shlomo S. Hagler of the Civil Court, New York County. I recommend it highly.

Judge Hagler was also the author of the decision in Inwood Hill Med. v Allstate Ins. Co., 2004 NY Slip Op 50565(U) (Civ. Ct., New York Cty., 2004). I still give copies of the decision to new associates as a primer on no-fault.

In other news, Fair Price Medical Supply Corp., a/a/o Nivelo v Travelers is still in the briefing stage before the Appellate Division, Second Department. Respectfully, the Appellate Term decision in Fair Price Med. Supply Corp. v Travelers Indem. Co., 2005 NYSlipOp 25343 (App. Term, 2d Dep't, 2005) is a perhaps the most frustrating example of that Court overreaching in applying the preclusion rule. In short, the idea that no-fault requires a carrier to pay a claim where the very submission of such constitutes a Class E felonly (see Penal Law § 176.15, as the bill in Fair Price was $1,628.98) simply cannot be correct, and requiring carriers to seek restitution after the fact is, as dissenting Judge Joseph G. Golia points out, "[c]old comfort indeed." Moreover, services never rendered cannot have treated any injuries that were causally related to a covered incident, and thus preclusion cannot apply. Indeed, given that (the relevant portion of) no-fault only covers necessary medical expenses, unrendered services are not subject coverage. It would make no sense to hold that Central General v. Chubb allows a carrier to avoid preclusion where services are rendered but does not treat an injury causally related to a loss, but requires preclusion where no services are rendered at all - the latter has more fatal defects than the former in terms of coverage, not fewer. There simply is "no contractual relationship" with respect to unrendered services. Zappone v. Home Ins. Co., 55 N.Y.2d 131, 137 (1982).

The preclusion rule is designed to penalize carriers for stalling in their duty to pay or deny a claim within 30 days, but penalizing a carrier for failing to realize through psychic powers that a claim was false in its entirety serves no public policy. Indeed, it hurts the public by raising insurance premium rates and providing an incentive for criminal activity.

But I digress. Perhaps I will post a larger analysis of Fair Price once the time for oral argument comes closer.

More...than the simple words I try to say...

2006-10-25T16:53:00.000-04:00

(With apologies for the title to Ortolani/Oliviero/Newell.)

Further punctuating yesterday's post, the Appellate Term, 2d Dep't posted an opinion today in SpineAmericare Med., P.C. v State Farm Mut. Auto. Ins. Co., 2006 NYSlipOp 52035(U) (App. Term, 2d Dep't, October 5, 2006). Therein, the Court held that "plaintiff's moving papers were insufficient to establish the mailing of the appended forms to defendant. Plaintiff's corporate officer did not state that he actually mailed the claims to the defendant nor did he describe his office's standard practice or procedure designed to ensure that items are properly addressed and mailed." Id., citing to New York & Presbyt. Hosp. v Allstate Ins. Co., 29 A.D.3d 547 (2d Dep't, 2006). Once again, there was no mention of an "ensured compliance with" requirement, although perhaps it was unnecessary to mention same, as there was no description of the practice or procedure, anyway.

More on Mailing

2006-10-25T12:05:00.000-04:00

I've discovered that, on October 2, 2006, NYLJ published an article entitled 'Proper Proof of Mailing Under N.Y. No-Fault Law' by Mitchell S. Lustig and Jill Lakin Schatz. Although quite well-written, I think the authors missed the boat on the quiet death of the "ensured compliance with" requirement, as discussed in yesterday's post, although the authors do cite to and discuss Ava Acu. and Gribenko. I also think, respectfully, that the authors are out of their cotton-pickin' minds to suggest that the carriers obtain a USPS Certificate of Mailing for every NF-10. It's one thing for a carrier to do so for VTL § 313 policy cancellation, as the volume there is surely a tiny fraction of the number of NF-10s that get processed and mailed throughout New York on a daily basis. I think the Certificate of Mailing idea is so impractical as to be of no utility. Nevertheless, I certainly do appreciate the effort put into the article and the opportunity to hear differing opinions.

Dissed Miss1

2006-10-24T19:36:00.000-04:00

On May 30, 2006, the Appellate Term, 2d Dep't, dismissed the plaintiff's appeal of the February 7, 2006 order in AVA Acupuncture P.C. v ELCO Admin. Servs. Co., 2006 NY Slip Op 50158(U) (Civ. Ct., Kings Cty., 2006). For whatever reason, on October 4, 2006 (and just published online today), the App. Term reiterated the previous dismissal.

It is perhaps a shame that Ava Acupuncture was untimely in their appeal. Judge Battaglia's February 7 order is quite interesting, and it tackles two recurring no-fault disputes: the level of proof required to create a presumption of the mailing of a no-fault denial of claim form (NF-10) by a carrier and the issue of the lack of a fee schedule for acupuncture performed by a licensed acupuncturist.

Click here to toggle viewing the rest of the post...

Taking them in order, the specific dispute on proof of mailing in Ava Acu. was whether a presumption of mailing could be created by the affidavit of one who, although having knowledge of the standard practice and procedure of mailing by an office, was not in a supervisory position with regard to same. The problematic App. Term case law, relied upon by the plaintiff in Ava Acu., was Contemp. Med. Diag. & Treatment, P.C. v Government Employees Ins. Co., 2005 NY Slip Op 50254(U) (App. Term, 2d Dep't, 2005 and Gribenko v Allstate Ins. Co., 2005 NYSlipOp 52201(U) (App. Term, 2d Dep't, 2005).

The Court in Contemp. Med., in holding that the defendant carrier failed to prove the mailing of its denial, noted that the affidavit of the claims examiner "was conclusory and failed to specify either that it was the duty of the claims examiner to ensure compliance with said office procedures or that the claims examiner had actual knowledge that said procedures were complied with." Out of sympathy to the Court, I'll decline to criticize the use of a preposition to end a sentence. However, there is a bigger problem. Shortly after the sentence I've just quoted, the App. Term cited generally to Residential Holding Corp. v. Scottsdale Ins. Co., 286 A.D.2d 679 (2d Dep't, 2001). The problem is, though, Residential Holding says nothing about proof of mail coming from a deponent whose position it is to ensure compliance with the relevant practices and procedures. The App. Div. formulated the rule as being that "[t]he presumption [of mailing] 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." Id. at 680, citing to Tracy v. William Penn Life Ins. Co., 234 A.D.2d 745 (3d Dep't, 1996) and Pardo v. Central Coop. Ins. Co., 223 A.D.2d 832 (3d Dep't, 1996).

The App. Term seemingly compounded the error in Gribenko by noting, when holding that the plaintiff had failed to create a presumption of the mailing of its claim forms, "the affidavits [did not] state that it was the duty of the affiants to ensure compliance with said office procedures or that the affiants had actual knowledge that said office procedures were complied with." 2005 NYSlipOp 52201(U), citing to Contemp. Med.

Subsequent to Gribenko, the Appellate Division issued its decision in New York & Presbyt. Hosp. v. Allstate Ins. Co., which quoted Residential Holding directly and held that "[t]he presumption [of mailing] 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." 29 A.D.3d 547 (2d Dep't, 2006). Since that time, the App. Term has, curiously and without explicitly mentioning it, dropped the "ensure compliance with" rule from Contemp. Med. and Gribenko. Interestingly, the last time that the App. Term cited to Contemp. Med. or Gribenko, they found simply that "[t]he affidavit submitted by defendant's no-fault specialist was sufficient to establish that defendant followed a standard office practice or procedure designed to ensure that denial of claim forms were properly addressed and mailed," and failed to address the "ensured compliance with" rule at all. A.M. Med. Servs., P.C. v New York Cent. Mut. Ins., 2006 NYSlipOp 51662(U) (App. Term, 2d Dep't, 2006).

In Ava Acu., Judge Battaglia eloquently described the "ensured compliance with" issue and proof of mailing in general, and ultimately (and understandably) concluded that such a requirement did, indeed, exist. Judge Battaglia also found the affidavit submitted by the defendant carrier to be conclusory, anyway, so presumably the same result would have been reached whether or not the requirement existed. So, too, on appeal, the App. Term could have avoided even tackling the issue by finding it to be insufficient under any standard. Nevertheless, it would have been nice to have the App. Term explicitly disavow Gribenko, as plaintiffs' attorneys still argue for it throughout the Civil Courts with some success. See, e.g., Judge George Silver's opinion in Y&J Intertrade v. Utica Mut. Ins. Co., 236 N.Y.L.J. 41 (Civ. Ct., Kings Cty., 2006).

As for the second interesting portion of the Ava Acu. decision, the issue of the lack of a fee schedule for acupuncture performed by an acupuncturist has been a troubling one for some time. This is especially true in Civil Court, Kings County in acupuncture cases where plaintiff's counsel is the Law Offices of Gary Tsirelman, attorneys for Ava Acu. In short, Mr. Tsirelman's clients, along with many other acupuncturists, would have it that licensed acupuncturists are allowed to charge a rather substantial amount per modality, usually somewhere in the neighborhood of $120. However, there is a fee schedule for acupuncture rendered by chiropractors and physicians, and the resultant fees, at the high end, are about $43. Unfortunately for the acupuncturists, the Insurance Department issued an opinion letter on October 6, 2004 in which they opined that "licensed acupuncturists do not have a right to reimbursement at the prevailing regional fee rate in effect" prior to the physician and chiro fee schedules being put into effect, and that "it would be consistent with the regulation for an insurer to limit the reimbursable fee for necessary services provided by a licensed acupuncturist to the rates established for doctors and chiropractors performing a similar service."

Although he avoided doing so in Ava Acu., Judge Battaglia later tackled this issue on the merits in Power Acupuncture P.C. v State Farm Mut. Auto. Ins. Co., 2006 NY Slip Op 50393(U) (Civ. Ct., Kings Cty., 2006). I'm not quite sure how he pulled it off, but he both acknowledged the October 6, 2004 opinion letter and concluded that it "was wrong" for State Farm to reduce the bills submitted to a lower "fee [that] was calculated according to the...Schedule for Medical Fees." Id. I'm still mystified by the Power Acu. decision, and especially in light of the fact that Ava Acu. had its appeal dismissed, I hope that State Farm chose to prosecute an appeal in that matter.

--
¹ The title of the post explained: it's a cheap pun, as Ava Acu. is owned by Valentina Anikeyeva. Actually, given that she is married to Andrey Anikeyev, I might have more approrpiately titled the post 'Dissed Mrs.,' but that misses (mrs.?) the point. Then again, I could have gone neutral - and also avoided embarrassing myself in case the pair has split - and called it 'Dissed Ms.' I chose not to use this version, as it removed the subtle reference to 'Swiss Miss,' but I digress. For more fun adventures with the Anikeyevas, I direct the reader to Circle Intl. Group, Inc. v Anikeyeva, 2005 NY Slip Op 50979(U) (Sup. Ct., Kings Cty., 2005).

Quis custodiet ipsos custodes?

2006-10-24T10:22:00.000-04:00

Many judges throughout the New York City Civil Court system - and possibly beyond - have been out yesterday and today for conferences. There is no truth to the rumor that the Courts have been issuing better decisions as a result of the absence. ;)

Schepp, Part XLVLCLVXIVM

2006-10-17T12:15:00.000-04:00

Your humble affirmant is currently knee-deep (quite literally, were you to see my office) entrenched in the ever-ongoing litigation between various no-fault insurance carriers and the medical facilities purportedly owned by Dr. Robert Scott Schepp, M.D.: Deajess Medical Imaging, P.C., Boston Post Road Medical Imaging, P.C., and Preferred Medical Imaging, P.C. As noted recently on this blog in "Carothers, Part CLXXXVI," those 3 Schepp facilities eventually became Andrew Carothers, M.D., P.C. The Schepp facilities have recently filed suit against approximately 25 insurance carriers seeking a declaration that, inter alia, they were and are in compliance with the "Business Corporate Law" [sic] and thus entitled to no-fault reimbursement. The suit is Deajess Medical Imaging, P.C., et al., v. AIG Insurance Company, et al. (Sup. Ct., Nassau Cty., Index No. 013569/06). The action is related to a previously-commenced Nassau Cty. action, AIU v. Deajess, which is described in the prior post here concerning Carothers.

Anyway, I say all of this in apology for the lack of substantial updates thus far this week. The irony is not lost on me that I am unable to make posts of any value while holed up at my computer, yet am able to do so when engaging in a more vigorous schedule of appearances.

Your condolences for my plight will be accepted by PayPal, etc. ;)

Save the Date

2006-10-16T09:32:00.000-04:00

For what it's worth, the appeal in Long Is. Radiology v Allstate Ins. Co., 2006 NY Slip Op 51090(U) (Sup. Ct., Nassau Cty., 2006) is set to be heard before the Appellate Division, 2d Dep't on November 2, 2006.

Oh, and Happy Monday to all. ;) There seem to be quite a few silent readers out there, so please drop a line (or anonymous comment, if need be) and inform us as to whether or not you found this prior week's posts to be useful/readable/etc.

Edit @ 2:22PM - I've realized I might've had my settings goofed up for commenting. If you tried and failed previously, give it another shot. :)

Facts and Amounts

2006-10-13T12:04:00.000-04:00

I've spoken with a number of attorneys who have expressed confusion to me as to whether a plaintiff's prima facie burden for a summary judgment motion (the subject of most Appellate Term decisions) differs from the applicable burden at trial. According to the App. Term, 2d Dep't, they are identical.

As to motions, the landmark App. Term decision on the matter is Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701(U) (App. Term, 2d Dep't, 2003). As per the most recent App. Term decisions, the rule has now boiled down to the following: "In an action to recover first-party no-fault benefits, a plaintiff establishes its prima facie entitlement to summary judgment by proof of the submission of a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." Delta Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 51877(U) (App. Term, 2d Dep't, 2006) (citations omitted).

In Damadian MRI in Canarsie, P.C. v General Assur. Co., 2006 NYSlipOp 51048(U) (App. Term, 2d Dep't, 2006), the Court was called upon to determine the plaintiff's burden at trial, and they held that "[i]t is well settled that a health care provider establishes its prima facie entitlement to judgment as a matter of law by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue." (Citations omitted).

Thus, although methodology of proof will necessarily differ due to the procedural mechanics of each, plaintiff maintains the same burden at trial as it does when seeking summary judgment.

Keeping It Real, Part I(a)

2006-10-12T22:18:00.000-04:00

As implied yesterday, the decision in West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006) will be interesting in light of the decision just a few months prior in Long Is. Radiology v Allstate Ins. Co., 2006 NY Slip Op 51090(U) (Sup. Ct., Nassau Cty., 2006). I know my posts are getting a bit long as of late, so I'll provide a cut for quicker readability of the front page here.

Click here to toggle viewing the rest of the post...

Indeed, in Long Is. Radiology, Justice Phelan made explicit his understanding that West Tremont was under appeal. Moreoever, West Tremont is not binding authority upon the Supreme Court, the latter being a court of original jurisdiction. See, e.g., Westchester Med. Ctr. v. Liberty Mut. Ins. Co., 2006 NY Slip Op 50382U (Sup. Ct., Nassau Cty., 2006).

Nevertheless, at the very least, a split amongst courts has been presented to the Appellate Division, as Long Is. Radiology is currently under appeal. See, e.g., App. Div. Motion No. 2006-05943.

In his decision, Justice Phelan explains the background of the case as follows:

Plaintiff is a radiology office that performs MRI testing for persons involved in motor vehicle accidents and allegedly eligible for no-fault benefits. MRI testing is done pursuant to a prescription issued by the injured person's independent treating physician. For payment plaintiff receives an assignment of no-fault benefits from the injured person, and submits claims directly to one of the defendants. Defendants deny numerous claims for payment on the ground of an alleged "lack of medical necessity."

On this motion defendants argue that in the context of the no-fault statute and the regulations thereunder, "medical necessity" is a prerequisite for payment. They conclude therefore, that they have every right to deny plaintiffs' claims on the ground of "lack of medical necessity." This Court agrees with defendants' argument, but not their conclusion. 2006 NY Slip Op 51090(U).

The final sentence is not as hopeful for the carriers as it might appear. Although it was found that carriers could, indeed, defend the claims on the basis of a lack of necessity, it was held that they cannot do so against the radiology facilties directly. Instead, "[a]n insurer who can prove that a radiology test is unnecessary or duplicative, should be able to challenge through subrogation the treating physician or medical provider who prescribed the test." Id.

The Supreme Court based its holding upon the following rationale:

It is this Court's opinion that the results in West Tremont and Omega Diagnostic comport with the underlying intent of the no-fault statute, that claims be processed quickly and efficiently, and that economic losses be fully compensated. As noted in West Tremont, there is no statutory or regulatory pre-approval requirement for radiology tests requested by treating physicians in no-fault cases. Furthermore it makes no sense to argue "lack of medical necessity" against radiologists, because they do not assess medical necessity. Radiologists neither examine the no-fault patient, nor render a pre-test diagnosis. Any diagnostic opinion is based on the radiological test. To require radiologists to render a pre-test diagnosis would cause significant delay in treating the injured.

Under this rationale, if a no-fault patient (who we will assume is a layperson with no medical training) paid for her medical treatment out-of-pocket and then submitted timely and proper claims thereafter seeking reimbursement for same, a carrier could never defend on the basis of a lack of medical necessity. One can imagine the formulation of the argument: it makes no sense to argue "lack of medical necessity" against lay patients, because they do not assess medical necessity; that's why they go to doctors in the first place. This is an absurd conclusion that cannot stand without taking the entirety of the no-fault scheme down with it.

It also seems odd to your affirmant that the Court would give an ultimate finding that would, if implemented, double the amount of litigation in certain massive categories of no-fault claims while, as a predicate, recognizing that "[t]he court system is inundated with no-fault claims litigation." Id. Presumably, if the Long Is. Radiology decision became the rule, the court system would then be inundated with both no-fault claims litigation and subrogation claims litigation.

Can Long Is. Radiology withstand appeal? I either can't imagine so, don't want to imagine so, or both. To the extent that West Tremont is a factor, it should serve as a succinctly damning argument in favor of reversal. The Appellate Term said it all when they noted that "while it may be argued that a diagnostic center is in no position to establish the medical necessity of a prescribed MRI, it is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor. If a claim is not assigned, and is submitted to the insurer directly by the eligible injured person, the insurer may assert a defense of lack of medical necessity which, if established, will shift the burden to the eligible injured person to provide his or her own evidence of medical necessity. If the defense may be asserted against the eligible injured person, it follows that it may be asserted against the provider as well." 2006 NYSlipOp 51871(U). Vague appeals to the underlying goals of no-fault, which could easily be molded to reach any conclusion under the sun,¹ pale in comparison to the actual law.

Really, it's a shame that radiologists don't independently assess medical necessity and yet still face the lack thereof as a defense. It's also a shame that doctors also usually don't assess whether a patient's injuries were the result of an intentional collision,² yet the appellate courts of this state have repeatedly held that they still must face the defense that such a thing occurred. See, e.g., Central General v. Chubb, 90 N.Y.2d 195 (1997); Metro Medical Diagnostics, P.C. v. Eagle Insurance Company, 293 A.D.2d 751 (2d Dep't, 2002).

Does a no-fault fact pattern get any more heartbreaking than the following?:

On August 31, 2000, Aferdita Suljovic, a passenger in a vehicle operated by her husband, was injured when her husband intentionally caused the vehicle to go over an embankment while he exited the driver's side of the vehicle. Mr. Suljovic was indicted, inter alia, for attempted murder and ultimately pleaded guilty to assault in the second degree.[³]

Mrs. Suljovic was hospitalized at Westchester Medical Center (hereinafter WMC). As her assignee, WMC sought to recover no-fault benefits from the defendant, Mr. Suljovic's automobile insurer, for the services it rendered. The defendant issued a denial of coverage on the grounds, insofar as relevant to this appeal, that the occurrence was not an "accident" within the meaning of the no-fault endorsement in the policy and that Mrs. Suljovic's injuries did not arise out of the "use or operation" of a motor vehicle. Westchester Med. Ctr. v. Travelers Prop. Cas. Ins. Co., 309 A.D.2d 927, 928 (2d Dep't, 2003).

The poor woman was almost murdered in a horrific manner and the hospital did the very thing hospitals are supposed to do. To be sure, the hospital had no part in the attempted murder, and it would have been cruel (and possibly some other things) for them to have refused to treat as soon as they found out her injuries were the result of an intentional act. But do they get reimbursed through no-fault? No. "The assault, committed through the use of a vehicle, was an intentional act, not an accident. Consequently, the...cause of action should have been dismissed." Id. The ability of a no-fault claimant or her assignees to assess a potential defense their claims has no relationship to the properness of a carrier employing such defenses. If the claims do not qualify, and the carrier has proven such in accordance with the applicable laws for proving a defense, that is the end of the judicial inquirty.

No-fault isn't just something where money gets tossed around for equitable reasons. It is based upon a contract, the terms of which are promulgated by the government. The contract has provisions. Those provisions are to be followed. The contract does not provide reimbursement for unnecessary services. The contract does not get changed around depending on whether those provisions would kinda sorta stink a little bit for an assignee of one of the parties thereto. Is this a revelatory stance? I think not, given decisions such as Westchester Med. Ctr. v. Travelers. And while the Appellate Term, 2d Dep't is no stranger to such wholesale no-fault contract re-writing,⁴ as I said yesterday, recent decisions appear to reverse that trend, or at least provide some balance. And, really, regardless of which party one is representing in a no-fault suit, is strict adherence to the laws and regulations really that bad of an idea?

MRI facilities giving a no-fault patient three MRIs a week after an accident are in no more of a sympathetic position than Mrs. Suljovic and Westchester Medical Center, and, in reality, are surely far less sympathetic. To hold that medical necessity defenses should be unavailable as against such MRI facilities due to unfairness is simply untenable in light of the result in Westchester Med. Ctr. and innumerable similar Appellate Division holdings. Well, it ain't keeping it real, at least.

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1. Really, does requiring subrogation against the referring provider after losing a no-fault suit shorten or lengthen the claim procedure? One could argue for the opposite result of Long Is. Radiology without changing the rationale.

2. Though maybe psychologists can if they broach that subject.

[3. Presumably, Justice Phelan would have the carrier subrogate against Mrs. Suljovic's incarcerated husband.]

4. "While the holding of the majority results in a plenary trial on the issue of lack of medical necessity, the insurer will have no evidence to present on the issue of 'medical necessity,' as the eligible injured person never appeared for the IME and consequently the company never examined that person. The eligible injured person would not be entitled to summary judgment but the insurer has no possibility to defend at trial. This, of course, ignores 11 NYCRR 65-1.1 (d) which provides that "No action shall lie against the Company..." Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins., 7 Misc. 3d 18, 25 (App. Term, 2d Dep't, 2004), dissent of Golia, J.

Almost Infamous

2006-10-11T14:46:00.000-04:00

Much thanks for Nicole L. Black, Esq., she of the Sui Generis blawg, not only for pointing out to us that we are linked in a post today on PointofLaw.com, but also apparently for providing the method by which we got noticed in the first place.

Also a hearty welcome to the 3 people in the world that will read the PointofLaw.com post and be unable to resist checking out "a blog on New York no-fault auto law." ;)

Keeping It Real, Part I

2006-10-11T11:16:00.000-04:00

The Appellate Term, 2d Department has been in engaging in some rather groundbreaking decision-making as of late: the application of "real" law (as opposed to solipsistic citation to prior no-fault decisions that had no particular basis in law on their own). For your consideration, we present the decision in West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 2006 NYSlipOp 51871(U) (App. Term, 2d Dep't, 2006). The "real" rule of law in question: "[I]t is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor." Id., citing to Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121 (1975).

In the trial court opinion, Judge Judith R. McMahon held that "in a matter, such as the instant case, wherein the usual and customary medical procedure was utilized by the examining physician in referring a patient involved in a motor vehicle accident for radiological tests after a physical examination, and the patient assigned her rights to the diagnostic radiological establishment for reimbursement of No-Fault benefits, the affirmative defense of lack of medical necessity should not be available as the diagnostic center does not make an independent medical evaluation of the patient and the denial of benefits to the diagnostic establishment is in derogation of the intent of the Insurance Law 5106." West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 8 Misc. 3d 423, 427 (Civ. Ct., Richmond Cty., 2005). In sum, a carrier cannot deny MRI bills based upon a lack of medical necessity. This conclusion was based on that most vague and useless of arguments: that "the purpose and intent of the Insurance Law No-Fault Benefits statute which is expedient payment of benefits to automobile victims." Id.

The meat of the App. Term's rationale for overruling the Civil Court's order is as follows:

Under the Comprehensive Motor Vehicle Insurance Reparations Act (Insurance Law art 51), more commonly known as the No-Fault Law, "first party benefits" are available to reimburse persons for "basic economic loss" resulting from injuries "arising out of the use or operation of a motor vehicle" (Insurance Law § 5102 [b]). Insurance Law § 5102 (a) (1) defines "basic economic loss" as including, inter alia, "[a]ll necessary expenses incurred for: (i) medical, hospital . . ., surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services" and "(iv) any other professional health services." The Mandatory Personal Injury Protection Endorsement (11 NYCRR 65-1.1 [d]) defines "medical expenses" as consisting of "necessary expenses" for the services which are enumerated in the statute. Nowhere in the statutory or regulatory scheme is there any suggestion that services rendered by diagnostic centers or, for that matter, medical equipment suppliers, laboratories, or radiological facilities, all of which rely upon prescriptions or referrals from treating or examining medical providers, be exempt from the requirement that said services be "medically necessary." While it may be argued that a diagnostic center is in no position to establish the medical necessity of a prescribed MRI, it is well settled that the assignee stands in no better position than its assignor, and has no more right or claim than the assignor (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121 [1975]). If a claim is not assigned, and is submitted to the insurer directly by the eligible injured person, the insurer may assert a defense of lack of medical necessity which, if established, will shift the burden to the eligible injured person to provide his or her own evidence of medical necessity. If the defense may be asserted against the eligible injured person, it follows that it may be asserted against the provider as well. Moreover, "[t]o permit medical providers to receive reimbursement even when the insurer has proven that the service provided was not medically necessary would encourage fraud, rather than combat it . . . . In fact, the construction urged by plaintiff would require insurers to pay for MRIs of the entire spine when the insured suffered a broken toe, or for full body scans for broken arms" (Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435, 439 [2005]). 2006 NYSlipOp 51871(U).

This makes sense for a number of reasons, not the least of which is that the limitation of basic economic loss in § 5102 to "necessary [medical] expenses" doesn't have a subsection containing an exemption for instances where it would stink for the provider. To be sure, no one ever wants to write in a general exception to the laws and regulations when application of same would stink for the carrier.

Also, I think the end result of such a rule would be even worse than what the Civil Court posed in Precision Diagnostic: a no-fault applicant could have a single examination by a physician at which everything under the sun was prescribed, and then the resulting tens of thousands of dollars of no-fault claims would not be defensible on the basis of lack of necessity.

Indeed, I think the Court of Appeals has actually already decided the matter, anyway. The factual basis of Central General v. Chubb, 90 N.Y.2d 195 (1997) was as follows:

Central General Hospital provided medical treatment to Pamela Mandresh on four separate occasions for injuries allegedly sustained in an automobile accident. Chubb insured the automobile Mandresh was driving at the time she was allegedly injured. The hospital submitted standard requests for payment of no-fault billings totaling $ 2,403.50. Chubb rejected them on the grounds that the injuries were not related to the accident and the treatments were excessive. Chubb insists that Mandresh's injuries were sustained in a separate work-related accident about a year prior to the automobile accident. Id. at 198.

Although there was an allegation by Chubb that Ms. Mandresh had treated with the same physician for both injuries, this appears to be unrelated to the services rendered by the hospital. Either way, when a patient presents injuries and a given explanation to a physician, unless the injuries are somehow so blatantly unrelated that they cannot possibly have arisen as explained, the physician is in no position to determine the causality of the injuries. Nevertheless, the Court of Appeals concluded that "an insurer...may assert a lack of coverage defense premised on the fact or founded belief that the alleged injury does not arise out of an insured incident." If Judge McMahon's conclusion in the West Tremont trial decision was the correct rule, Central General should have held that carriers are precluded from raising the defense of lack of causality (unless the medical provider was actually a personal witness to the event that caused the injuries, I suppose).

Possibly more later on the potential effects of the App. Term's decision in West Tremont on the pending litigation in Long Is. Radiology v. Allstate Ins. Co., 12 Misc. 3d 1167A (Sup. Ct., Nassau Cty., 2006).

Fee, Fi, Ho, Hum

2006-10-07T17:30:00.000-04:00

As Matthew S. Lerner, Esq. of the New York Civil Law blawg recently posted¹, Judge Peter Paul Sweeney of Civil Court, Richmond County has issued an opinion on the proper calculation of attorney's fees. See Marigliano v NY Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 26395 (Civ Ct., Richmond Cty., 2006).

Judge Sweeney (now sitting once again in Civil Court, Kings County, and in fine spirits concerning the move as per conversations between His Honor and the undersigned yesterday) adopted the interpretation of the attorney's fees portions of the Regulations opined upon by the NYS Insurance Department on October 8, 2003. As the Ins. Dep't concluded therein:

The minimum amount of attorney's fees awarded to an assignee health provider who has prevailed in a court action brought against a No-Fault insurer is based upon the aggregate amount of payment required to be reimbursed based upon the amount awarded for each bill which had been submitted and denied. The minimum attorney fee amount of $60 is not due and owing for each bill submitted as part of the total amount of the disputed claim sought in the court action.

In Marigliano, plaintiff favored a calculation whereby each individual bill would be entitled to a separate fee calculation, each with its own $60/$850 boundaries (actually, plaintiff probably argued for a minimum of $80, but that's a recurring issue for a future post on No-Fault Urban Legends). Given that there were three (3) assignors in the suit, the Court's ruling will result in three (3) separate fee calculations, with the same $60/$850 bounds. Without having seen the underlying briefs, I am guessing that plaintiff's preferred calculation would have led to attorney's fees in excess of $1,200. Using the calculation set forth by the Ins. Dep't, attorney's fees probably didn't even exceed $850 (although the theoretical maximum for fees in a suit with three separate assignors would actually be $2,550, it is unlikely that the bills for each assignor reach that level).

This has been a pressing issue for some time, and I almost hope that the plaintiff appeals so that we can get a an on-point determination from the Appellate Term. Plaintiffs often break up very small bills into multiple causes of action in a Complaint in order to multiply their attorney's fees (and plaintiff's counsel in Marigliano is certainly no exception). Any bill lower than $300 will bring in attorney's fees at the $60 minimum, so sometimes plaintiffs will have 20+ causes of action per assignor, each with bills of around $150, in order to greatly boost the fees. Whereas using the calculation on which the Ins. Dep't has opined might not even result in fees that hit the $850 ceiling, using the plaintiffs' preferred calculation can far exceed $850, as seen in my rough guesses re: Marigliano above. It's obviously very frustrating when negotiating on behalf of a carrier that is otherwise dead in the water on their defense in a given action - a carrier either must face paying the full amount of the bills plus interest, fees (with a calculation likely done by the plaintiff and accepted by the clerk, anyway), and costs or give in to a demand that flouts regulatory limits. This often hardly constitutes a "settlement."

I am inclined to believe that if the Appellate Term of the 2d Dep't hears this matter, faced with a very clear opinion letter from the Insurance Department and no contrary and on-point Appellate Division holdings, they will be likely to uphold the Civil Court determination and memorialize the opinion letter as binding common law. In the absence of contrary Appellate Division holdings, the Appellate Term appears to favor adopting the opinions of the Ins. Dep't, as seen on the matter of whether providers can be reimbursed for services performed by independent contractors. See A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc. 3d 36 (App. Term, 2d Dep't, 2005).² The Appellate Term also seems concerned of late with systemic abuses by no-fault medical providers and their attorneys, another factor weighing in the carriers' favor. See, e.g., the fairly recent scheduling of sanctions hearings by the Appellate Term for Marylou A. Paolucci, Esq. and Alden Banniettis, Esq.³ Of course, the Appellate Term is highly unpredictable, and I have surely been wrong before.

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1. The post at bar is a modified version of a comment I posted to the subject New York Civil Law post.

2. However, the Appellate Term has never paid any attention to Ins. Dep't opinions that conflict with established appellate case law. For example, the Appellate Term has never given any weight to the January 11, 2000 opinion letter that medical necessity may be part of a plaintiff's prima facie burden (even where a carrier is precluded from raising the lack of medical necessity as a defense), as this is surely contradicted by the seminal Court of Appeals holding in Presbyterian Hospital v. Maryland Casualty Co., 90 N.Y.2d 274 (1997) and numerous appellate decisions holding that a plaintiff need only prove that it submitted claim forms to the carrier on which it stated the fact and amount of the loss sustained and that such claims have not been paid or properly denied.

3. Although the Appellate Term has published a motion decision whereby they declined to sanction Ms. Paolucci, I have not yet seen a decision either way concerning Mr. Banniettis.

Ready or Not

2006-09-29T23:00:00.000-04:00

Today's entry at U.S. District Judge Jerry Buchmeyer's legal humor blog (taken from the archives of his column for the the Texas Bar Journal) presents the classic scenario of the strategizing one attempts at a court's calendar call. Choosing the perfect moment to let the court and your adversary know you're not ready to proceed is, indeed, an art.

The Court: Okay. Do y'all want a hearing today after 11 then?

Mr. George: No. I'm not ready today your honor.

The Court: Okay. Y'all want to put it off till next Monday.

Mr. Shumate: I can't be ready today either.

The Court: Okay.

Mr. George: Well, then I may be ready.

Have a good weekend.

Law & Order: SIU

2006-09-26T22:09:00.000-04:00

One of the initial goals for this blog was to intersperse posts on recent news with a background primer on no-fault. Of course, this concept presumes that there exists a class of persons who are both a) reading this blog with sufficient interest to revisit periodically, and b) not very well-versed in no-fault. It is perhaps my own inherent self-deprecating nature that makes me inclined to believe that, to the extent that this blog is read at all (assuming that, say, Matthew Lerner, Esq. and Nicole L. Black, Esq. are real persons and not robots with high marks on their Turing tests), only those so masochistic as to already know no-fault rather well would be interested in visiting. This probably leads to postings here that assume too much with regard to the reader's knowledge. We are open to any commentary as to whether the blog is indeed too insular, what types of postings would be most useful (e.g., basic educational, statutory and case law reportage, issue-specific practice notes, etc.).

All of that being said, it has occurred to me that the previous posting assumed too much on the part of the reader's knowledge of the existence, structure, and entrenchment of no-fault fraud. To that end, an NYS OAG press release from July 31, 2006 concerning seventeen (17) grand jury indictments relative to a particular investigation may be of some value. The factual basis of the some of the charges is enlightening:

In the first indictment, three defendants, including a doctor and a medical clinic owner, are charged with Enterprise Corruption, a class "B" felony. The defendants allegedly earned millions of dollars through their operation and control of AR Medical Art, P.C. (AR Medical), a medical clinic in the Midwood section of Brooklyn that "treated" persons purportedly injured in car accidents. Other charges in the indictment include scheme to defraud, money laundering, grand larceny, insurance fraud, falsifying business records, and offering a false instrument for filing.
* * *
In the two other indictments unsealed today, 14 people were charged with staging car accidents throughout New York City and attending clinics, including AR Medical, for treatment of their feigned injuries. These two staged accident ring indictments charged the defendants with scheme to defraud, insurance fraud, larceny, falsifying business records, and offering a false instrument for filing.
* * *
The enterprise corruption indictment alleges that although the owner of record of AR Medical was Dr. Alexander Rozenberg, a physician specializing in physical rehabilitation, he did not control the operations or the financial affairs of the clinic. Instead, Inna Polack, who lacks a health provider license, secretly owned the clinic and decided what medical and health services were to be provided to patients. The defendants acquired patients through a network of "steerers," who were paid to refer patients to AR Medical. Steerers solicited patients by staging motor vehicle accidents and by offering the clinic’s "services" to real car accident victims.
* * *
The indictment further alleges that, following referrals of patients to AR Medical, Rozenberg conducted cursory medical evaluations, fabricated patients’ symptoms, falsely diagnosed extensive soft tissue injuries, and referred patients for prolonged, unnecessary treatment and testing. This treatment included months of physical therapy, chiropractic care, acupuncture, and psychological counseling, as well as MRIs, x-rays, and nerve testing.

The AR Medical situation brings together many of the various defenses often described collectively as "fraud" or as relating to an "SIU" issue (SIU being an acronym for Special Investigations Unit, which carriers in New York are required by regulation to operate). For example, both of the following are complete defenses to a no-fault personal injury protection ("PIP") claim: a) the monies earned by a professional medical corporation are being directed to the true lay operators of the facility rather than the licensed person who is involved on paper only (see State Farm Mut. Auto Ins. Co. v Mallela, 4 N.Y.3d 313 (2005)), and b) the alleged motor vehicle loss was not accidental (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 N.Y.2d 195 (1997); Metro Medical Diagnostics, P.C. v. Eagle Insurance Company, 293 A.D.2d 751 (2d Dep't, 2002); State Farm v. Laguerre, 305 A.D.2d 490 (2d Dep't, 2002)). In practical litigation terms, these defenses lead to the submissions of the lengthiest motion and opposition papers, as well as the lengthiest jury trials.

Carothers, Part CLXXXVI

2006-09-25T22:52:00.000-04:00

The latest (and surely most wide-reaching) event in the saga of the no-fault claims of Andrew Carothers, M.D., P.C. has come courtesy of Judge Peter Paul Sweeney (formerly of Civil Court, Richmond County, up until this past Friday - he has now returned to his former home of Civil/Kings). See Matter of Carothers v Insurance Cos. Represented by Bruno Gerbino & Soriano LLP & Freiberg & Peck LLP, 2006 NY Slip Op 26372 (Civ. Ct., Richmond Cty., 2006). At least Judge Sweeney has gone out with something of a bang (relative to no-fault, at least).

All of this may seem very trite (even moreso to those who aren't practicing in the no-fault world and hence aren't shocked that a court would order that a party would actually have to appear for an EBT), but it has consumed much of this past summer for the no-fault defense bar, including your humble correspondent, and most New York City Civil Court motion clerks. For example, BG&S submitted a brief in the matter (as if same was not contextually obvious from the caption), which is more or less all that I can recall about the month of June this year.¹

See also, Andrew Carothers, M.D., P.C. v. GEICO Indem. Co., 2006 NY Slip Op 26326 (Civ. Ct., Kings Cty., 2006; Battaglia, J.)

Sadly, there is not much information available online addressing the background of the Carothers situation, or of the prior facilities, Deajess Medical Imaging, P.C., Preferred Medical Imaging, P.C., and Boston Post Road Medical Imaging, P.C. Judge Sweeney describes the situation a little bit, and I have a PDF of the decision in AIU Ins. Co. v. Deajess Medical Imaging, P.C., 235 NYLJ 28, p. 22, col. 1 (Sup. Ct. Nassau Co. 2/10/06). Additional information is summarized in Preferred Med. Imaging, P.C. v Liberty Mut. Ins. Co., 2006 NY Slip Op 50437(U) (Dist. Ct., Suffolk Cty., 2006).

To really get a feel for the entire affair, the truly dedicated might be inclined to visit the Supreme Court, Kings County and copy the pleadings in Medical Capital Corporation, et al., v. MRI Global Imaging, Inc. (Index No. 41099/04). That lawsuit concerned Deajess, Preferred, etc. suing their management company after their relationship went sour.

Anyway, stay tuned to this space in 2007 or so for a report on the results of the Appellate Term decision on the inevitable appeal.

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1. The Joint Brief submitted on behalf of the defendants represented by Bruno, Gerbino & Soriano, LLP & Freiberg & Peck, LLP was authored by Craig J. Bruno, Esq., with noted contributions by Vincent F. Gerbino, Esq., Damin J. Toell, Esq., Brian M. Martin, Esq., and Craig J. Freiberg, Esq.

Just to Show We're Alive

2006-09-24T07:09:00.000-04:00

Summer is finally technically over, so presumably we have no further excuses left for our failure to maintain this blog. In a show of good faith, please to enjoy a new link in our blogroll to Small Town Lawyer. Joel H. Seachrist, Esq., of Beckman & Seachrist, has been kind enough to link to us in his wonderfully useful (and, not to mention, disturbingly more frequently-updated than the blog at bar) blog.

While we rev up further postings, we should all be chewing over the decision in New York & Presbyt. Hosp. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 05336 (App. Div., 2d Dep't, July 5, 2006). In a very short decision, the following two (2) sentences are (potentially) the most important: "The defendant correctly contends that the plaintiff hospitals lacked standing. The proof adduced at trial included unsigned assignment of benefit forms." Id., citing to Leon v Martinez, 84 NY2d 83 (1994).

To be sure, the lack of a signature is a very deep defect in an assignment. However, with standing now being brought into the game as a necessary result of the operation of a no-fault assignment, one can only wonder what other defects might also preclude standing. Indeed, given that the Appellate Division cites to a non-no-fault case (what Hon. Philip S. Straniere formerly referred to as "real cases"), does this mean that general contract law applies to the determination of the validity of a no-fault assignment? How far can this all go? Have we perhaps entered a Twilight Zone-esque world in which even such outlandish laws and rules as those embodied within the CPLR (gasp!) apply to no-fault?! The mind boggles and the heart quivers.

On a more realistic note, what is the remaining force of the decision in Presbyterian Hosp. v. Aetna Cas. & Sur. Co., 233 A.D.2d 433 (2d Dep't, 1996)? In particular, compare the sentences quoted from New York & Presbyt. Hosp. v New York Cent. Mut. Fire Ins. Co., supra, with the following: "[The carrier] failed to allege any deficiency in the plaintiff hospital's assignment in its denial of claim. As a result, it waived any such defense." 233 A.D.2d at 433 (citations omitted). Does the newer decision overrule the older one? Or should we perhaps create a meta-rule of "a carrier waives any defense premised upon any deficiency in an assignment of benefits if it fails to allege such deficiency in a timely denial of claim form, unless such deficiency works to preclude standing"? Most pressingly, should we resolve all of this prior to the 10th anniversary of Presbyterian Hosp. v. Aetna Cas. & Sur. Co. on November 18 of this year?

Anyhow, I'm open to suggestions as to where we'll all have drinks to celebrate Presbyterian Hosp. v. Aetna Cas. & Sur. Co.'s birthday (and/or to use the occasion to celebrate/mourn its demise). November 18, 2006 is a Saturday, after all.

Through No Fault of Mine - On Hiatus

2006-07-10T07:12:00.000-04:00

In case you have not noticed, we're on hiatus for a while for the summer slow down. There have been some developments that we hope to cover in the coming weeks.

A pressing project must take precedence for the next week or so, but after that look back here for fresh posts.

Thanks for stopping by.

To Prove Staged Accident in Judge Velasquez' Courtroom, the Standard is Preponderance of Evidence

2006-05-28T17:39:00.000-04:00

In Universal Open MRI of the Bronx, P.C. v State Farm Mut. Auto Ins., decided on May 11, 2006, Judge Velasquez at Civil Court, Kings County ruled evidence defendant presented insufficient to prove a staged accident. While unremarkable by itself, he goes into a detailed analysis as to the standard of proof required. He ultimately adopts the standard of preponderance of evidence. The decision is worth reading.

An Example of An Effective Peer Review Defense - Where Plaintiff Does Not Produce a Witness

2006-05-28T17:30:00.000-04:00

In Expo Med. Supplies, Inc. v Clarendon Ins. Co., 2006 NY Slip Op 50892(U), decided May 15, 2006 in Civil Court, Kings County, Judge Delores J. Thomas held that defendant's Peer Review Doctor Ronald A. Csillag's testimony was sufficient to carry their burden to prove that the supplies were not medically necessary. Plaintiff did not produce a witness, but instead relied upon the report of Dr. Barshay. The court found that no evidence was presented to refute defendant's testimony.

Affidavit Re Proof Of Mailing Must Be Specific to be Sufficient

2006-05-28T17:23:00.000-04:00

In A.B. Med. Servs. PLLC v Specialty Natl. Ins. Co., 2006 NYSlipOp 50810(U), decided April 28, 2006, the appellate term second department vacated a judgment against defendant since among other things, plaintiff's affidavit was insufficient to prove mailing. In his affidavit, plaintiffs' "practice and billing manager" alleged that he "issued all of the billings," that he "personally billed out the claim," and that "[a]ll billing of plaintiff was sent to defendant." The court said this was not enough.

Amazing - IME No Show = No Pay

2006-05-28T17:18:00.000-04:00

In two cases, Amaze Med. Supply Inc. v Allstate Ins. Co. and Amaze Med. Supply Inc. v General Assur. Co., the appellate department confirmed the viability of the defense that plaintiff's assignor failed to appear for IMEs. In the second case, the court also states that an affidavit by a supervisor with knowledge of the mailing procedures is enough to prove mailing of the IME letters.

Never Mind that the Regulation Requires the Endorsement, Prove to Us It's There

2006-05-28T17:10:00.000-04:00

In yet another set-back for the defense bar, the appellate division second department held in Dilon Med. Supply Corp. v Progressive Cas. Ins. Co., 2006 NYSlipOp 50908(U), decided May 17, 2006 that requests for examinations under oath did not toll the thirty day rule as defendant failed to provide proof that the policy endorsements mandated by the new regulations were made a part of the applicable policy.

First, every policy issued or renewed is required by law to include the endorsement. Second, the claim involved appears to have arisen right when the new regulations went into effect, so it dealt with a situation where a plaintiff could call into question whether the new endorsement controlled. If plaintiff raised such an issue, defendant should have been afforded an opportunity to respond rather than ruling against them by fiat.

A Nurse's Peer Review Not Enough

2006-05-28T17:05:00.000-04:00

In SZ Med. P.C. v Country-Wide Ins. Co., 2006 NYSlipOp 26194, decided May 17, 2006, the appellate term second department held in part that a nurse's unsworn peer review was not enough to establish lack of medical necessity,absent some proof of the ability of that nurse to give a medical opinion. I think I know at least one nurse who would disagree with the latter part of the court's reasoning.

180 Rule Viable But You Need Proof

2006-05-28T17:00:00.000-04:00

In Continental Med., P.C. v Travelers Indem. Co. , 2006 NYSlipOp 50841(U), decided May 11, 2006, the appellate term, first department reversed summary judgment for defendant on the 180 day rule, in effect saying that insufficient proof was put forward as to the date of receipt of the notice of loss.

Track and Confirm Receipt Alone Is Not Proof of Mailing

2006-05-28T16:45:00.000-04:00

In New York and Presbyterian Hospital, a/a/o Richard Udland, et al., v. Allstate Insurance Company, (Index No. 6510/04), 2006 NY Slip Op 03558, the Appellate Division, Second Department upheld denial of summary judgment on a cause of action where plaintiff sought to prove mailing solely based upon a Track and Confirm receipt without adequate support. "Here, no presumption of mailing was created because the affidavit of the plaintiffs' billing service representative did not state that he actually mailed the particular claim alleged in the second cause of action to the defendant ... or describe his office's practice and procedure for mailing no-fault claims to insurers."

And now for something off topic

2006-05-03T23:05:00.000-04:00

Chanler v David Letterman Show

Who is suing David Letterman, and why? Does it involve no-fault?
Is Dick Schaefer involved?

Plaintiff's Affidavits Must Be Specific

2006-05-03T23:02:00.000-04:00

In A.B. Med. Servs. PLLC v Allstate Ins. Co., 2006 NYSlipOp 50746(U) decided April 27, 2006, the Appellate Term, Second Department held that plaintiff's billing manager's affidavit was not specific as to which of the provider companies he was a billing manager, and denied plaintiff's motion for summary judgment.

No Summary Judgment Before Discovery Complete

2006-05-03T22:51:00.000-04:00

Congratulations to Jeremy Kosin of Bruno Gerbino for his win in SK Medical v. New York Central Mutual, 2006 NY Slip Op 50721(U), decided April 5, 2006 in Civil Court, Richmond County by Judge Sweeney.

Judge Sweeney held that plaintiff was not entitled to summary judgment because discovery as to non-precluded defenses was still outstanding. Judge Sweeney expanded on a ruling in A.B. Medical Services PLLC v. Utica Mut. Ins. Co., 2006 NY Slip Op. 26068[App. Term, 2nd & 11th Jud. Dists.]

Out of State Insurers Off the Hook?

2006-05-03T22:29:00.000-04:00

If you have occasion to handle claims being made against an out of state insurer who has not filed with the insurance department to offer coverage in New York, you might want to check out Marshall v. Nationwide Mutual Company, 166 A.D.2d 852.

Thanks to Christopher A. Wong with Bruce Sommerstein & Associates for this tip.

Once You Go to Arbitration You Can't Come Back to Court

2006-04-18T00:42:00.000-04:00

In A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 2006 NY Slip Op 26131, decided March 17, 2006, Civil Court, Kings County, Judge Karen J. Rothenberg ruled that certain claims that were made by plaintiffs after proceding with arbitration could not be brought in court again citing Roggio v. Nationwide Mutual Ins. Co., 55 NY2d 260, 496 N.Y.S.2d 404 [1985]

If you handle arbitrations, you better read

2006-04-18T00:31:00.000-04:00

Better Health Med. PLLC v Empire/allcity Ins. Co., 2006 NY Slip Op 50571(U) Civil Court Of The City Of New York, New York County. In this decision by Judge Thomas, while finding that this claim arose before the new regulations went into effect, the court did not find that the master arbitrator abused its discretion in upholding the award of the arbitrator finding claimant had no standing. "This Court finds that the determination by the arbitrator that fraud may be an issue in the processing of this claim does not constitute an arbitrary or capricious ruling nor is it incorrect as a matter of law."

Plaintiff's have things to prove too - about mailing.

2006-04-18T00:23:00.000-04:00

On April 7, 2006, the Appellate Term, Second Department in
Staten Is. Chiropractic Assoc., P.C. v Long Is. Ins. Co.,
2006 NYSlipOp 50588(U),that where plaintiff merely said that it timely mailed the bills to the defendant, where the defendant said it did not receive them, this was inadequate to prove mailing.

Plaintiff's production of an any and all denial did not prove mailing of that particular bill.

Just because they don't show at the EUO....

2006-04-18T00:17:00.000-04:00

The Regulation giveth and the court taketh away. At least sometimes it seems that way to the defense bar. The New Regulations permit insurers to deny claims for failure of a claimant or assignor to appear for Examinations Under Oath. Courts, however, have held that the insurer must include language promising reimbursement for expenses. Now it seems that the courts are imposing an additional burden or two.

In Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., the Appellate Term, Second Department affirmed an order granting plaintiff summary judgment finding that defendant failed to attach the EUO endorsement to its papers, failed to set forth proof in admissible form as to the mailing of EUO Notices.

The Public Policy is Strong with you Defendant

2006-04-18T00:08:00.000-04:00

In New York & Presbyt. Hosp. v Auto One Ins. Co., 2006 NY Slip Op 02509, decided April 4, 2006, defendant's seeking to vacate defaults may have gotten a little help with the Appellate Division's Second Department's decision upholding a Supreme Court decision granting defendant an order vacating plaintiff's judgment.

We're Exhausted, You're Out of Luck Plaintiff

2006-04-18T00:02:00.000-04:00

In New York and Presbyterian Hospital v. Allstate Insurance Company, 2006 NY Slip Op 02731 (Decided April 11, 2006), the Appellate Division, Second Department reversed summary judgment for plaintiff finding that Allstate had made a prima facie showing that it was entitled to summary judgment on its cross-motion by presenting an affidavit, a timely denial and payment log to other providers.

What is Full Faith and Credit, Counselor?

2006-04-05T23:48:00.000-04:00

Plaintiffs might be happy to be in Judge Thomas' courtroom in Civil Court, Kings County, but others might not be so lucky.
In Capri Med., P.C. v New York Cent. Mut. Fire Ins. Co. 2006 NY Slip Op 50538(U), decided on March 30, 2006, Judge Delores J.Thomas granted plaintiff's motion for summary judgment, in part because the affidavit of the accident reconstructionist was done out of state and lacked a certificate of conformity.

Anyone know of any cases going the other way?

Folks in Albany are Talking About No-Fault

2006-04-04T23:09:00.000-04:00

Those of us who practice have to deal with the law as it is, and how it develops before the courts. Most of us rarely look at the bigger picture or bills that have not yet become law. It may interest some of you to know what legislators are thinking about.

If any of this interests you, check out the bill submitted by A. Grannis in the Senate on March 31, 2006 as bill A10545 reducing the statutory interest amount to 1% and requiring all first party no-fault suits to be submitted to arbitration. Check out http://public.leginfo.state.ny.us/menuf.cgi and put in "no-fault."

What do you think of Grannis bill?

Plaintiffs MSJ must say not denied within 30 days

2006-04-04T22:50:00.000-04:00

In a recent case decided in Kings County, Judge Bluth held that plaintiff was not entitled to summary judgment as there was no averment in a supportive affidavit or similar paper that they claims were not denied within 30 days. In New York Craniofacial Care, P.C. v Allstate Ins. Co., plaintiff provided proof that the bill had not been paid and supportive affidavits included language to that end. They did not, however, include any mention that the claims were not denied within 30 days.

If you didn't do the work, get out of court.

2006-04-04T22:37:00.000-04:00

Plaintiffs may not recover for services of an independent contractor.
In Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 2006 NYSlipOp 50521(U) on March 30, 2006, the Appellate Term, First Department affirmed a decision granting defendant summary judgment on these grounds. See also: A.B. Medical Services PLLC v Liberty Mutual Ins. Co., 9 Misc 3d 36 [2005])

Submit an NF-3 forget about AOB?

2006-03-30T23:45:00.000-05:00

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co2006 NYSlipOp 50491(U) March 27, 2006 Appellate Term, 2nd Dept.
Another case where the court held in passing that "plaintiff was not required to establish the proof of mailing of its assignment of benefits form as part of its prima facie case inasmuch as plaintiff established that it submitted a proper NF-3...." The case also outlines briefly the purpose of a bill of particulars, its uses and limitations.

Be Sure to Oppose Motions in Writing

2006-03-30T23:42:00.000-05:00

Careplus Med. Supply Inc. v Travelers Home & Mar. Ins. Co.
2006 NYSlipOp 50479(U) Appellate Term, 2nd Dept. March 27, 2006
If you do not oppose a motion in writing, you may not be able to appeal as the court may consider it an order entered on default. Perhaps this appellant should have considered making an order to show cause to vacate. Any thoughts?

Verification Requests Good For Something

2006-03-30T23:40:00.000-05:00

Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co.
NYSlipOp 50477(U)Appellate Term, 2nd Dept.March 27, 2006
Court searches record and grants defendant's cross-motion for summary judgment based on outstanding verification citing see 11 NYCRR 65-3.8 [b] [3]) I guess those verification requests might be good for something after all.

Just Smacking on an NF-10 Not Enough Plaintiff

2006-03-30T23:36:00.000-05:00

Magnezit Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co.
2006 NYSlipOp 50473(U) Appellate Term, 2nd Dept. March 27, 2006
Plaintiffs need to provide some proof of mailing and just smacking an NF-10 onto their motion won't work if it doesn't match the bills.

Radiology Today v. Allstate Ins. Co.

2006-03-30T23:31:00.000-05:00

Radiology Today P.C. v Allstate Ins. Co. - what not to do as a defendant putting in opposition Appellate Term, Second Department

Appellate Term, Second Department Busy - cases

2006-03-30T08:04:00.000-05:00

A number of cases came down from the Second Department on March 27, 2006.

Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co. 2006 NYSlipOp 50477(U)
Appeals court searches record and grants defendant's cross-motion for summary judgment based on outstanding verification citing see 11 NYCRR 65-3.8 [b] [3]) I guess those verification requests might be good for something after all.