Blog

Conclusory affidavits will not defeat an insurance carrier’s summary judgment motion June 18, 2009

Bronze Acupuncture, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51219(U)(App. Term 2d Dept. 2009)

This case hints at what a medical provider must proffer in its answering papers to stave off an insurance carrier’s summary judgment motion, based upon the lack of medical necessity of a rendered service.

In this case, a conclusory or boilerplate affidavit attesting to a service’s lack of medical necessity is insufficient to raise an issue of fact.

Here is the holding:

“The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity.”

This should be compared to the operative language inPark Slope Medical and Surgical Supply Inc. v. New York Central Mut. Fire Ins. 22 Misc.3d 141(A)(App. Term 2d Dept. 2009) , where the court held the following: “[p]laintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity.”

The next question will be what facts are sufficient to support the conclusion that a service is medically necessary. I guarantee it is not going to be the regurgitation of the documents a peer review doctor examined. I also guarantee it is not going to be the boilerplate one size fits all affidavit we saw in Park Slope, which we can probably now say is bad law.

I know there will be many more of these types of appeals, and this issue will be answered at some time in the future.

Conclusory affidavits will not defeat an insurance carrier's summary judgment motion June 18, 2009

Bronze Acupuncture, P.C. v Mercury Ins. Co.
2009 NY Slip Op 51219(U)(App. Term 2d Dept. 2009)

This case hints at what a medical provider must proffer in its answering papers to stave off an insurance carrier’s summary judgment motion, based upon the lack of medical necessity of a rendered service.

In this case, a conclusory or boilerplate affidavit attesting to a service’s lack of medical necessity is insufficient to raise an issue of fact.

Here is the holding:

“The papers submitted by defendant in support of its motion, including the affirmed IME [*2]report and an affidavit executed by the acupuncturist who performed the IME, established, prima facie, a lack of medical necessity for the services at issue. The opposing affidavit submitted by plaintiff’s treating acupuncturist merely stated that she disagreed with the results of the IME report without setting forth any facts to support her conclusion. Consequently, the opposition papers failed to raise a triable issue of fact as to medical necessity.”

This should be compared to the operative language inPark Slope Medical and Surgical Supply Inc. v. New York Central Mut. Fire Ins. 22 Misc.3d 141(A)(App. Term 2d Dept. 2009) , where the court held the following: “[p]laintiff submitted an affidavit from Dr. Shapiro in which he stated that he disagreed with the peer review report and affidavit furnished by defendant because he concluded that the supplies provided were medically necessary. Since the affidavit of Dr. Shapiro demonstrated the existence of an issue of fact as to medical necessity.”

The next question will be what facts are sufficient to support the conclusion that a service is medically necessary. I guarantee it is not going to be the regurgitation of the documents a peer review doctor examined. I also guarantee it is not going to be the boilerplate one size fits all affidavit we saw in Park Slope, which we can probably now say is bad law.

I know there will be many more of these types of appeals, and this issue will be answered at some time in the future.

Nunc pro tunc under the former serve and file regime June 18, 2009

J.R. Dugo, D.C., P.C. v New York Cent. Mut. Ins. Co.,
2009 NY Slip Op 29261 (App. Term 2d Dept. 2009)

I suspect that if this case was decided in 2005, it might have been more relevant to the practice of law. As it is, it explains one of the reasons why the serve and file system was abolished in the lower court system. I would only say that the Civil Court, City Court and District Court clerks routinely allowed Plaintiffs to purchase index numbers well after the 14 or 21 day period after service was complete.

The practice of law under the now-abolished serve and file system was nightmarish from the aspect that the defendant who wanted to move on a case within 60-days of joinder of issue had to either: (1) purchase an index number; or (2) wait until Plaintiff served Defendant with the index number. This gave the Plaintiff the clear advantage, since the Defendant was many times at the mercy of the Plaintfif to inform the said Defendant of the index number.

It also was a rare event when nunc pro tunc relief would not be afforded to the Plaintiff. In any event, this case explains why the public policy of the state is advanced through the lower courts, save the justice courts, following the Superior Courts’ method of commencing a case.

An angry Appellate Division strikes a complaint based upon discovery violations June 14, 2009

Northfield Ins. Co. v Model Towing & Recovery
2009 NY Slip Op 04878 (2d Dept 2009).

While this case represents nothing unique, the path the Appellate Division took was. The facts, as relayed to the reader, are that the following discovery orders were in place and in some way were violated:

1. Preliminary conference (7/28/05)- discovery was ordered to be completed prior to the Compliance Conference (12/19/06) .

2. Compliance conference (12/19/06) – discovery was ordered to be completed by 2/14/07.

3. There were various status conferences in between the dates of 2/14/07 and 12/12/07.

4. At the 12/12/07 status conference, discovery was ordered to be completed on or before 1/16/08.

5. Discovery was not completed on 1/16/08 .

6. A motion was interposed based upon the failure to comply with the 1/16/08 order. The Court in this order set forth a discovery schedule, and stated that it was to be obeyed under penalty of a 3126 remedy, upon a subsequent motion. In English, it looked as if the violation of this order would result in a conditional order of preclusion or a conditional order of dismissal.

Excluding status conferences and the P.C. order, there were 2 orders. Moreover, only one resulting order was the result of a motion made on notice.

The Defendant appealed the 1/16/08 order on the basis that the Court should have stricken the complaint. What happened next is something that is very rarely seen in downstate New York practice: The Appellate Division reversed the order of Supreme Court and struck the complaint.

Now for those of us who have practiced in Supreme Kings (my favorite example) as defendants and have had the opportunity to make discovery based motions in CCP, you will observe that it is almost impossible to obtain an order containing conditional preclusion or dismissal language, let alone an order that will unconditionally strike the complaint. Almost 10 discovery orders can be violated and a conditional order of dismissal, conditional order of preclusion or an absolute order of preclusion or dismissal will never occur. That is life, and we accept it because when these orders get appealed, the Appellate Division will usually not find an abuse of discretion and affirm the order of the Supreme Court, with the Defendant paying one bill of costs and disbursements to the recalcitrant Plaintiff.

Here, there were 3 disobeyed orders (including the P.C. order) and some status conferences that appeared to be disregarded. The Appellate Division, on appeal, reversed Supreme Court and struck the complaint. Since the SOL probably expired, the dismissal order was with prejudice. My question is as follows: are we going to see this type of vigilance in other cases, or is this case just an anomaly?

A no fault claim representative’s affidavit may cure inaccuracies in the NF-10 form June 11, 2009

We kind of saw it in a previous post involving a Mercury case where a claim representative’s sworn affidavit could explain typographical errors in a resulting NF-10. Some wondered why the Appellate Term never expounded on this point. Now, they have.

Bath Med. Supply, Inc. v Country Wide Ins. Co.
2009 NY Slip Op 51145(U)(App. Term 2 Dept. 2009)

The highlights are as follows:

“Plaintiff contends that defendant’s opposing papers did not establish that the claim determination period was tolled because, while the affidavit of defendant’s no-fault litigation supervisor sets forth the dates on which the verification requests were mailed, the denial of claim forms set forth incorrect dates as to when final verification was requested. However, the unsworn denial of claim forms do not purport to state the dates on which defendant first requested verification, whereas, in the sworn affidavit, defendant’s no-fault litigation supervisor states the dates on which verification was first requested, the dates on which the verification was received and the dates on which the denial of claim forms were mailed. To the extent the unsworn denial of claim forms suggest that defendant may have sent a further request for verification after receiving the verification it initially sought, they do not contradict the sworn statement by defendant’s no-fault litigation supervisor or otherwise nullify defendant’s position that the claim determination period was tolled.”

My observation is that the days of challenging denials for typographical errors have ended. We saw this starting with AB v. Liberty and extending through Al Correa v. State Farm, as well as other cases decided subsequent to Al Correa.

I suppose the best questions to ask are as follows. First, how much of an NF-10 needs to be filled out in order to preserve the defense(s) on it? Second, how many mistakes are allowed to be present on the NF-10, so as to preserve the defenses on the denial? We shall await the answer to these questions.