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Priority of payment January 21, 2018

Ameriprise Ins. Co. v Kensington Radiology Group, P.C., 2017 NY Slip Op 51911(U) (App. Term 1st Dept. 2017)

“Here, petitioner-insurer’s submissions in support of its petition to vacate the arbitration award – including an attorney’s affirmation, the policy declaration page showing the $50,000 limit and a payment ledger listing in chronological order the dates the claims by various providers were received and paid – raised triable issues as to whether the $50,000 policy limit had been exhausted by payments of no fault benefits to respondent and other providers before petitioner became obligated to pay the claims at issue here (see Allstate Prop. & Cas. Ins. Co. v Northeast Anesthesia & Pain Mgt., 51 Misc 3d 149[A], 2016 NY Slip Op 50828[U] [App Term, 1st Dept 2016]; Allstate Ins. Co. v DeMoura, 30 Misc 3d 145[A], 2011 NY Slip Op 50430[U] [App Term, [*2]1st Dept 2011]). Therefore, we remand the matter to Civil Court for a framed issue hearing on that issue.”

This looks like pure priority of payment, which does not look good,

Out of scope – need foundation January 19, 2018

Gullo v Bellhaven Ctr. for Geriatric & Rehabilitative Care, Inc., 2018 NY Slip Op 00279 (2d Dept. 2018)

“Here, Shapiro established his prima facie entitlement to judgment as a matter of law by submitting an affirmation of his medical expert, who addressed the specific allegations of malpractice set forth in the plaintiffs’ bills of particulars. The expert concluded that Shapiro did not [*2]depart from the applicable standard of care and that, in any event, the alleged departures were not a proximate cause of any alleged injuries. In opposition, the affidavit of the plaintiffs’ expert did not raise a triable issue of fact. Where, as here, “a physician opines outside his or her area of specialization, a foundation must be laid tending to support the reliability of the opinion” (DiLorenzo v Zaso, 148 AD3d 1111, 1113 [internal quotation marks omitted]; see Tsimbler v Fell, 123 AD3d 1009, 1009-1010; Feuer v Ng, 136 AD3d at 707). The plaintiffs’ expert failed to provide such foundation. ”

There is this doctor who is now signing affidavits of merit in Court actions.  He is a pediatrician opining on the efficacy of pain creams.  I will not say more.

There is no safety valve for a late follow-up January 19, 2018

Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co.,  2017 NY Slip Op 50939(U)(App. Term 2d Dept. 2018)

I think I failed to specifically comment on this case.  In light of Atlantic Radiology, we now have a difference of opinion between the courts.

“In the papers submitted in support of its motion, defendant admitted receiving plaintiff’s claim form. In an affirmation, defendant’s counsel established that an initial EUO scheduling letter had been timely mailed to plaintiff’s assignor (see Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 857 N.Y.S.2d 211 [2008]; 11 NYCRR 65-3.5 [b]), but further demonstrated that the follow-up EUO scheduling letter had not been timely mailed (see 11 NYCRR 65-3.6 [b]).  Contrary to defendant’s contention, 11 NYCRR 65-3.8 [l] specifically states that it does not apply to follow-up requests for verification. As a result, because defendant’s follow-up EUO scheduling letter was untimely, the NF-10 denial of claim form which defendant eventually sent was untimely

No need to send letter to attorney January 19, 2018

Recover Med. Servs., P.C. v Ameriprise Ins. Co.,  2017 NY Slip Op 51892(U)(App. Term 2d Dept. 2017)

Upon review of my blog, I failed to note this case.

With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v Nationwide Mut. Ins. Co., 55 Misc 3d 91, 53 N.Y.S.3d 452 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 964 N.Y.S.2d 59, 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.”

This case is just an off shoot of Advantage Radiology.

Verification issues January 19, 2018

Atlantic Radiology Imaging, P.C. v Travelers Prop. Cas. Co. of Am., 2018 NY Slip Op 50053(U)(App. Term 1st Dept. 2018)

“It being undisputed on this record that plaintiff failed to fully respond to the defendant-insurer’s verification requests, defendant established its prima facie entitlement to summary judgment dismissing the underlying first-party no-fault claims as premature (see St. Vincent Med. Care, P.C. v. Country Wide Ins. Co., 80 AD3d 599, 600 [2011]). Even accepting plaintiff’s speculative assertion that defendant’s followup verification request was issued two days beyond the 10-day period prescribed by the regulation (see 11 NYCRR 65-3.6), this does not, under the circumstances here presented, deprive defendant of the benefit of the tolling of the 30-day period during which an insurer must pay or deny the claim (see Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862 [2009]; Triangle R Inc. v Praetorian Ins. Co., 30 Misc 3d 129[A], 2010 NY Slip Op 52294[U] [App Term, 1st Dept 2010]).”

Two points to be fleshed out here.  First, all verification was not received.  Problem.  Second, the follow-up can be late without consequence.  I sense divergence from the Second Department (AT).

Initially, a late follow-up according to the AT second department eliminated the toll.  The AT First says otherwise.

Second, how do you harmonize the line of AT 2nd cases saying that the affidavit of compliance with verification is sufficient whereas this case which seems to look for record support regarding received verification?