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Hearsay insufficient to substantiate a fraud defense/Fee Schedule discussionJuly 31, 2017

Acupuncture Healthcare Plaza I, P.C. v 21st Century Advantage Ins. Co.,2017 NY Slip Op 50945(U)(App. Term 2d Dept. 2017)

Fee Schedule: Box #18

(1) “Contrary to plaintiff’s contention, the denial of claim forms were sufficient to advise plaintiff that defendant was partially denying plaintiff’s claims on the ground that the amount plaintiff sought to recover was not in accordance with the workers’ compensation fee schedule. Indeed, a checked box on the forms indicated that benefits were denied because the fees were not in accordance with the fee schedule (see Alleviation Med. Servs., P.C. v State Farm Mut. Auto. Ins. Co., 47 Misc 3d 149[A], 2015 NY Slip Op 50778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”

Lack of coverage

(2) “To the extent defendant seeks summary judgment dismissing these claims on the ground of lack of coverage, a defense which is not subject to preclusion (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), defendant’s evidence was insufficient to establish, as a matter of law, that the assignor’s alleged injuries did not arise from an insured incident so as to warrant the dismissal of the complaint (see Central Gen. Hosp., 90 NY2d at 199; Infinity Health Prods., Ltd. v American Tr. Ins. Co., 30 Misc 3d 137[A], 2011 NY Slip Op 50195[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).”

(Infinity involved an SIU affidavit relying in large part on an inadmissible police report)

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