No show and non receipt May 11, 2017

Progressive Health Chiropractic, P.C. v American Tr. Ins. Co., 2017 NY Slip Op 50603(U)(App. Term 2d Dept. 2017)

(1)  “we do not consider a mutual rescheduling, which occurs prior to the date of that scheduled IME, to constitute a failure to appear”

(2) “although the affidavit of defendant’s no-fault examiner was sufficient to show that defendant had never received that claim, the affidavit of plaintiff’s employee, in which the affiant stated that he had personally generated and mailed plaintiff’s $1,019.62 claim to defendant, was sufficient to give rise to the presumption that the claim had been received by defendant”

Non acupuncture based add on codes – issue of fact May 11, 2017

2 & 9 Acupuncture, P.C. v 21st Century Advantage Ins. Co., 2017 NY Slip Op 50599(U)(App. Term 2d Dept. 2017)

“Upon a review of the record, we find that defendant failed to demonstrate, prima facie, that it had properly denied payment for the unpaid portions of the bills for services billed under CPT codes 97026 and 97016 in accordance with the workers’ compensation fee schedule (see Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc 3d 133[A], 2012 NY Slip Op 51335[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the amended order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97026 and 97016 are denied.”

It appears that Plaintiff billed for the above two codes and was not compensated for the same.  The Court through citing Sama Physical and WHO Acupuncture, P.C. is holding that in order  to zero out the non acupuncture based codes, an expert affidavit is necessary (WHO Acupuncture).  Alternatively, more probative proof would be necessary should Ground Rule 11 be utilized (Sama),


CPLR 3101(d)(1) May 6, 2017

Yampolskiy v Baron, 2017 NY Slip Op 03556 (2d Dept. 2007)

“”[A] party’s failure to disclose its experts pursuant to CPLR 3101(d)(1)(i) prior to the filing of a note of issue and certificate of readiness does not divest a court of the discretion to consider an affirmation or affidavit submitted by that party’s experts in the context of a timely motion for summary judgment” (Rivers v Birnbaum, 102 AD3d 26, 31). Under the circumstances of this case, the Supreme Court properly denied the plaintiff’s cross motion to preclude the expert materials submitted by the defendants in support of their motion for summary judgment, as there was no evidence that the failure to disclose the experts was intentional or willful, and there was no showing of prejudice to the plaintiff (see Begley v City of New York, 111 AD3d 5, 36; Salcedo v Weng Qu Ju, 106 AD3d 977, 978; Hayden v Gordon, 91 AD3d 819, 820).”

Was there opposition to the default motion? May 6, 2017

Turner v Owens Funeral Home, Inc., 2017 NY Slip Op 03128 (1st Dept. 2017)

“Because plaintiffs did not submit any opposition to the motions to change venue, and the order granting the motions was entered without consideration of any arguments by plaintiffs, whether oral or written, the order was entered upon plaintiffs’ default, and is not appealable (see CPLR 5511; Liberty Community Assoc., LP v DeClemente, 139 AD3d 532, 532 [1st Dept 2016]; cf. Matter of 144 Stuyvesant, LLC v Goncalves, 119 AD3d 695, 696 [2d Dept 2014] [order was not entered upon the respondent’s default where, among other things, the court addressed the arguments presented by the respondent in her oral opposition to the motion]).”

Interesting decision on insurance carrier fauilure May 6, 2017

Gecaj v Gjonaj Realty & Mgt. Corp., 2017 NY Slip Op 03109

“While we concede that, generally, when a defendant provides the summons and complaint to its insurance broker, and the insurer, thereafter, fails to appoint counsel to appear in the action on behalf of defendant, this is considered to be a reasonable excuse (see generally Rodgers, 69 AD3d at 510-511) However, on the facts presented here, defendants did not establish a reasonable excuse for their default. An assertion by a defendant that it believed its insurer “was providing a defense is unsubstantiated and unreasonable in light of [the defendant’s] conceded receipt of the plaintiff’s motion for leave to enter a default judgment,” as receipt of such a motion puts the defendant on notice that the insurer has, in fact, not answered the complaint since the commencement of the action (Trepel v Greenman-Pedersen, Inc., 99 AD3d 789, 791 [2d Dept 2012]; see also Spitzer v Landau, 104 AD3d 936, 937 [2d Dept 2013] [finding that the defendant’s belief that the insurer was providing a defense was “unreasonable given that the defendant was served with the plaintiff’s motion for leave to enter a default judgment”]).”

**It is a very interesting discussion.