Friday, May 2, 2008

Survey of Recent Appellate Term, 2nd Department No-Fault Decisions

Boulevard Multispec Med., P.C. v MVAIC
(App. Term, 2nd Dept., decided 4/14/2008)

In Boulevard Multispec Med., P.C. v. MVAIC, the court granted MVAIC's motion for summary judgment, dismissing the provider's suit, based on its finding that the provider had not commenced suit within 3 years of when payment of the bills in question became due. The 3-year SOL of CPLR § 214(2) applied because the provder's action against MVAIC was one "to recover upon a liability, penalty or forfeiture created or imposed by statute" and not based on contract. The court rejected the provider's argument that MVAIC should be equitably estopped from asserting the SOL defense because it had previously taken the position that its verification requests were not untimely. The submission of an untimely verification request did not toll the payment due date and, therefore, the accrual date of the provider's statutory claim against MVAIC. "We disagree with plaintiff's position that its gratuitous compliance with a verification request issued beyond the payment due date, or its apparent willingness now to unilaterally waive the time limit for the sending of a verification request, can render a belated verification request timely and, ultimately, postpone the accrual date of its cause of action. Neither the relevant statute nor the applicable regulations provide for such a waiver." See, also, Kings Highway Diagnostic Imaging, P.C. v. MVAIC (App. Term, 2nd Dept., decided 4/14/2008).

Health & Endurance Med., P.C. v. Liberty Mut. Ins. Co.
(App. Term, 2nd Dept., decided 4/14/2008)

In Health & Endurance Med., P.C. v. Liberty Mut. Ins. Co., the court AFFIRMED the lower court's denial of plaintiff's motion and granting of defendant's cross motion for summary judgment. Where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a "provider" of the medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) and is therefore not entitled to recover "direct payment" of assigned no-fault benefits from the defendant insurer.

In this case, the claim forms submitted by plaintiff in support of its motion for summary judgment stated that the treating professional was an independent contractor and, in opposition to defendant's cross motion, plaintiff conceded that the services were rendered by an independent contractor. Contrary to plaintiff's contention, that defense is nonwaivable and not subject to the preclusion rule. As a result, the court properly denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

First Aid Occupational Therapy, PLLC v. New York Cent. Mut. Fire Ins. Co.
(App. Term, 2nd Dept., decided 4/8/2008)

In First Aid Occupational Therapy, PLLC v. New York Cent. Mut. Fire Ins. Co., the court REVERSED the lower court's granting of plaintiff's motion for summary judgment, agreeing with defendant insurer that plaintiff provider had not made a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to its moving papers. " Inasmuch as the affirmation submitted by plaintiff's billing manager was insufficient to establish that she possessed personal knowledge of plaintiff's office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff's moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment. The fact that copies of documents were stored in compliance with a document retention policy is not sufficient to establish that the documents were business records in the absence of a showing as to how and when the documents were generated (see CPLR 4518). "

A.T. Med., P.C. v. State Farm Ins. Co.
(App. Term, 2nd Dept., decided 4/24/2008)

In A.T. Med., P.C. v. State Farm Ins. Co., the court REVERSED and vacated the lower court's order granting plaintiff's motion for summary judgment. State Farm demonstrated on appeal that in a separate action brought by State Farm against various health care providers including the plaintiff, Nassau County Supreme Court had enjoined the providers from commencing suit against State Farm to recover no-fault benefits during the pendency of that action. State Farm successfully argued that plaintiff's summary judgment motion in this action, therefore, was improperly made, the Appellate Term agreeing that the injunction barred the motion.

Boris Kleyman, P.C. v. Kemper Ins. Co.
(App. Term, 2nd Dept., decided 4/24/2008)

In Boris Kleyman, P.C. v. Kemper Ins. Co., the court REVERSED the lower court's order denying plaintiff provider's motion for summary judgment. The peer review reports submitted by Kemper in support of its defense that the services rendered were not medically necessary were illegible. Thus, the Appellate Term held that Kemper failed to demonstrate the existence of a triable issue of fact as to medical necessity.

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