December 19, 2017
Faith Acupuncture, P.C. v Global Liberty Ins. (2017 NY Slip Op 51806(U))
https://www.beynensonlaw.com/case-law/faith-acupuncture-p-c-v-global-liberty-ins-2017-ny-slip-op-51806u/
- Court
- Appellate Term, Second Department
- Decided
- December 19, 2017
- Citation
- 2017 NY Slip Op 51806(U) · 58 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Provider prevailed
- Legal questions
- Proof of mailing · No-show defense: insurer's proof · Proving a fee schedule defense (see the maps)
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.
Reported in New York Official Reports at Faith Acupuncture, P.C. v Global Liberty Ins. (2017 NY Slip Op 51806(U))
| Faith Acupuncture, P.C. v Global Liberty Ins. |
| 2017 NY Slip Op 51806(U) [58 Misc 3d 135(A)] |
| Decided on December 19, 2017 |
| Appellate Term, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be published in the printed Official Reports. |
Decided on December 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th
JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M.
SOLOMON, JJ
2015-500 Q C
against
Global Liberty Insurance, Respondent.
The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Nancy S. Linden (Nancy S. Linden, Esq.), for respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered January 28, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.
With respect to the first three causes of action, plaintiff correctly argues that defendant failed to establish, as a matter of law, its defense that the fees charged exceeded the amounts set forth in the workers’ compensation fee schedule (see Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc 3d 142[A], 2017 NY Slip Op 50207[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Therefore, defendant is not entitled to summary judgment dismissing the first three causes of action.
With respect to the fourth through sixth causes of action, plaintiff correctly argues that defendant failed to establish, as a matter of law, that the initial and follow-up letters scheduling independent medical examinations (IMEs) had been timely mailed (see St. Vincent’s Hosp. of [*2]Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the fourth through sixth causes of action.
Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.
PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017
Legal questions (3)
Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.
Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: The insurer's proof did not establish mailing of its denial, verification request or IME/EUO notice
Held the insurer failed to establish as a matter of law that its initial and follow-up IME scheduling letters were timely mailed.
Of the 1,341 decisions on this question in the Second Department courts and the Court of Appeals, 256 (this one included) are in the same category.
Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?
This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed
Held that, without proof of timely mailing of the IME scheduling letters, the insurer failed to show the IMEs were properly scheduled and the assignor failed to appear.
Of the 837 decisions on this question in the Second Department courts and the Court of Appeals, 111 (this one included) are in the same category.
Did the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Insurer's proof did not establish the excess as a matter of law; question left for trial
Held the insurer failed to establish as a matter of law that the fees charged exceeded the workers' compensation fee schedule, so summary judgment on those causes of action was denied.
Of the 284 decisions on this question in the Second Department courts and the Court of Appeals, 84 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
- Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (2006 NY Slip Op 09604) FollowedAn insurer may deny benefits retroactively to the date of loss for failure to attend reasonably required IMEs under 11 NYCRR 65-1.1.
Similar decisions
- Faith Acupuncture, P.C. v Maya Assur. Co. (2014 NY Slip Op 51863(U))The insurer failed to establish proper mailing of IME scheduling letters and was denied summary judgment on its nonappearance defense.
- NYS Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co. (2017 NY Slip Op 51263(U))The insurer's summary judgment motion based on the assignor's IME nonappearance was granted on appeal.
- Healing Art Acupuncture, P.C. v Maya Assur. Co. (2015 NY Slip Op 50387(U))The insurer failed to prove mailing of IME notices or that the provider's fee exceeded the workers' compensation fee schedule.
- Acupuncture Choice, P.C. v American Tr. Ins. Co. (2017 NY Slip Op 51822(U))The provider failed to establish entitlement to summary judgment where timely IME nonappearance denials remained unrebutted.
- Acupuncture Now, P.C. v Global Liberty Ins. (2019 NY Slip Op 51796(U))The insurer established full payment under the workers' compensation fee schedule for acupuncture services performed by chiropractors.