October 1, 2021

Accelerated DME Recovery, Inc. v Travelers Ins. (2021 NY Slip Op 50955(U))

https://www.beynensonlaw.com/case-law/accelerated-dme-recovery-inc-v-travelers-ins-2021-ny-slip-op50955u/

Court: Appellate Term, Second Department
Decided: October 1, 2021
Citation: 2021 NY Slip Op 50955(U)
Posture: Other
Outcome: Provider prevailed
Issues: Discovery and procedure

Cite as

Accelerated DME Recovery, Inc. v Travelers Ins., 2021 NY Slip Op 50955(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer's appeal was dismissed because the challenged paper was either a nonappealable decision or an order not appealable as of right. The fee schedule defense was the sole issue designated for trial, but the parties submitted memoranda instead, without testimony. The Civil Court awarded the provider benefits in a decision and order, and no judgment was entered. The Appellate Term, Second Department, explained that, insofar as the paper was an order, it did not decide a motion made on notice and was not appealable as of right under CCA 1702 (a) (2) and CPLR 2211; leave to appeal was declined. Insofar as it was a decision, no appeal lay.

Reported in New York Official Reports at Accelerated DME Recovery, Inc. v Travelers Ins. (2021 NY Slip Op 50955(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Accelerated DME Recovery, Inc., as Assignee of Margaret Galderisi, Respondent,
against
Travelers Ins., Appellant.

Law Offices of Tina Newsome-Lee (Michael L. Rappaport of counsel), for appellant. Zara Javakov, P.C. (Victoria Tarasova of counsel), for respondent.

Appeal from a decision and order (one paper) of the Civil Court of the City of New York, Kings County (Carolyn Walker-Diallo, J.), entered March 12, 2020. The decision and order awarded plaintiff the sum of $164.01.

ORDERED that the appeal is dismissed.

In this action to recover assigned first-party no-fault benefits, the Civil Court (Odessa Kennedy, J.), by order dated November 16, 2017, directed, “The sole issue for trial is for [defendant] to establish its fee schedule defense.” In lieu of a trial, the parties submitted memoranda, and no testimony was taken. Defendant appeals from a “decision and order” of the Civil Court (Carolyn Walker-Diallo, J.), which was entered on March 12, 2020 and awarded plaintiff the sum of $164.01. No judgment has been entered.

To the extent that the March 12, 2020 “decision and order” constitutes an “order,” in that it appears that the parties requested a “Decision ordering” relief, the paper is not appealable as of right because it did not decide a motion made upon notice (see CCA 1702 [a] [2]; CPLR 2211; Mautner-Glick Corp. v Tunne, 38 Misc 3d 126[A], 2012 NY Slip Op 52320[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; New Century Osteopathic v State Farm Fire & Cas. Ins. Co., 22 Misc 3d 126[A], 2008 NY Slip Op 52584[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]), and we decline to grant leave to appeal. To the extent that the March 12, 2020 “decision and order” constitutes a decision, no appeal lies from a decision (see Schicchi v J.A. [*2]Green Constr. Corp., 100 AD2d 509 [1984]; AR Med. Rehabilitation, P.C. v MVAIC, 65 Misc 3d 138[A], 2019 NY Slip Op 51683[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]).

Accordingly, the appeal is dismissed.

ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 1, 2021

Cited in this decision

A label shows how this decision treated the case it cites.

New Century Osteopathic v State Farm Fire & Cas. Ins. Co. (2008 NY Slip Op 52584(U)) FollowedThe providers' appeal was dismissed because the oral trial motion was not made on notice and no appeal lay from the dismissal decision.
AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51683(U)) FollowedThe erroneous exclusion of a police accident report required a new trial on whether the assignor was injured in the underlying accident.

Cited by

Parisien v Mvaic (2022 NY Slip Op 51236(U))MVAIC's appeal was dismissed because the paper awarding no-fault benefits was not appealable as of right and leave to appeal was denied.

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Advanced Recovery Equip. & Supplies, LLC v Global Liberty Ins. Co. (2020 NY Slip Op 51373(U))Factual disputes over medical necessity and timely claim submission precluded summary judgment and a trial limited to the fee schedule.
Accelerated Med. Supply, Inc. v Ameriprise Ins. Co. (2020 NY Slip Op 50741(U))The insurer's EUO notices were sufficient because the initial letter identified the assignor, accident date, and file number.
Compas Med., P.C. v American Tr. Ins. Co. (2017 NY Slip Op 50946(U))The insurer proved outstanding verification and proper fee-schedule reductions; a challenge to mailing of payment was unpreserved.
Allay Med. Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51806(U))The insurer established timely mailing of EUO scheduling letters and the denial, together with nonappearance at the scheduled EUOs. The provider appealed an order granting the insurer summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment in an assigned no-fault action.