CPLR 3212(g) struck

TAM Med. Supply Corp. v Travelers Ins. Co., 2018 NY Slip Op 50315(U)(App. Term 2d Dept. 2018)

Sometimes, these orders are written in such a way where the Plaintiff has to actually prove something at trial.  What I find obnoxious is that the proof of submission of the verification in the first instance is a boilerplate affidavit with nothing to substantiate is averments.  Can somebody already take this up?

“Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the [*2]burden at trial of proving its prima facie case (see V.S. Med. Servs., P.C. v Travelers Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51760[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded (see Presbyterian Hosp. in City of N.Y v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.””

Prima facie case for trial purposes

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2015 NY Slip Op 51760(U), 43 Misc. 3d 127(A)(App. Term 2d Dept. 2015)

“As plaintiff’s bills and proof of mailing were admitted into evidence through the testimony of its owner, who testified that the bills had not been paid, plaintiff sustained its burden of proving its prima facie case at trial.”

I am unsure why this case never made its way onto the blog here.

Bob Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 2016 NY Slip Op 51434(U), 53 Misc. 3d 135(A)(App. Term 2d Dept. 2016)

“As plaintiff argues, the submission of the claim forms at issue to defendant was established by the denials, annexed by both defendant and plaintiff, which admitted the receipt of those claim forms (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 841 N.Y.S.2d 826, 2007 NY Slip Op 51281[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74, 831 N.Y.S.2d 821 [App Term, 2d Dept, 2d & 11th Jud Dists 2006]). Thus, in the particular circumstances of this case, including the fact that the Civil Court has made an implicit CPLR 3212 (g) finding as to the timely mailing of the denials and has limited the issues for trial, we find that the court should also have made   a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission of the claim forms to defendant.’

Summary judgment not unavailable under Etienne

Healthy Way Acupuncture, P.C. v Clarendon Natl. Ins. Co., 2017 NY Slip Op 50345(U)(App. Term 1st Dept. 2017)

“Contrary to plaintiff’s contention, the proof submitted establishes that plaintiff’s bill for services in the amount of $1,495 was timely denied, inasmuch as the 30-day statutory period was tolled by defendant’s timely verification and follow-up requests (see 11 NYCRR 65-3.8[a][1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).”

Prior to Etienne, the First-Department held that the insurance carrier had to demonstrate the merit of its defense to stave off summary judgment.  Not so anymore.  The insurance carrier only needs to prove a timely disclaimer and legal merit to the disclaimer.



2106 and a prima facie comment

Pugsley Chiropractic PLLC v Merchants Preferred Ins. Co., 2016 NY Slip Op 50167(U)(App. Term 1st Dept. 2016)

(1) “The report erroneously identified Dr. Perrie as a licensed “physician” (see Paul-Austin v McPherson, 111 AD3d 610 [2013]), and was denominated as an affirmation purportedly made under the authority of CPLR 2106. However, neither a chiropractor nor an acupuncturist may affirm the contents of a medical report pursuant to CPLR 2106″

This is nothing new,

(2) “Plaintiff’s cross motion for summary judgment was properly denied, since it failed to establish, prima facie, that its claims were overdue, i.e., that its claims were not “denied or paid” within the prescribed 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 507 [2015]).”

Now in the Second Department, prima facie proof on motion for summary judgment requires a demonstration either (A) absence of a timely denial; or (B) affirmative proof disproving the proffered defense.

First Department precedent has maintained the traditional rule that proof that a bill was denied or not denied when more than 30-days elapses from submission with proof of non-payment establishes a prima facie case.

I sense in this case the Court required proof that the bills were unpaid in affidavit form.  Yet, a denial would presuppose lack of payment?

Prima facie case in MVAIC matter

SK Prime Med. Supply, Inc. v MVAIC, 2015 NY Slip Op 51663(U)(App. Term 2d Dept. 2015)

“Although plaintiff’s witness testified that she had mailed the claim form to MVAIC and that the claim had not been paid, since plaintiff did not establish that plaintiff’s assignor provided MVAIC with proof that the assignor was a resident of the State of New York on the date of the accident and that a notice of intention to make claim form was submitted to MVAIC, plaintiff failed to establish its prima facie case”

The medical provider must also prove that Assignor was a NY resident and that a notice of intention was filed.

Etienne applied differently in First Department

EMA Acupuncture v Statewide Ins. Co., 2015 NY Slip Op 51622(U)(App. Term 2d Dept. 2015)

“In opposition to plaintiff’s prima facie showing of entitlement to judgment as a matter of law on its complaint to recover first-party no-fault benefits (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), defendant failed to raise a triable issue. While defendant contended that the claim was premature because plaintiff failed to respond to its verification requests, the affidavit of defendant’s no-fault claims supervisor, who had no personal knowledge that the verification letters were actually mailed, and described in only the most general terms her office’s mailing practices and procedures, was insufficient to raise an issue of fact (see Westchester Med. Ctr. v Countrywide Co., 45 AD3d 676, 677 [2007]).”

Compas Med., P.C. v Geico Ins. Co., 2015 NY Slip Op 51590(U)(App. Term 2d Dept. 2015)

“Plaintiff’s contention that it was entitled to summary judgment upon its third cause of action lacks merit. Plaintiff’s moving papers failed to establish either that defendant had failed to pay or deny the claim within the requisite 30-day period (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498[2015])”

The errant notice to admit

Metro Health Prods., Inc. v State Farm Mut. Auto. Ins. Co., 2015 NY Slip Op 51451(U)(App. Term 2d Dept. 2015)

“On March 19, 2012, after plaintiff failed to respond to the notice to admit, defendant moved for summary judgment dismissing the complaint on the ground of plaintiff’s nonappearances at the duly scheduled EUOs, relying solely upon its notice to admit to establish plaintiff’s nonappearances”

“The purpose of a notice to admit is only to eliminate from the issues in litigation matters which will not be in dispute at trial. It is not intended to cover ultimate conclusions, which can only be made after a full and complete trial” (DeSilva v Rosenberg, 236 AD2d 508, 508 [1997]; see Williams v City of New York, 125 AD3d 767 [2015]; Priceless Custom Homes, Inc. v O’Neill, 104 AD3d 664 [2013]; Bajaj v General Assur., 18 Misc 3d 25, 27 [App Term, 2d & 11th Jud Dists 2007]). Contrary to defendant’s assertion, its notice to admit went to the heart of the controversy (see Priceless Custom Homes, Inc., 104 AD3d at 664-665; Nacherlilla v Prospect Park Alliance, Inc., 88 AD3d 770 [2011]). Consequently, plaintiff’s failure to timely respond to the notice to admit should not be deemed an admission of the matters stated therein, since the admissions sought by defendant were improper”

You have to wonder whether the Notice to Admit would still work in the Second Department to make a prima facie case?  I am guessing not.  Yet, if a medical provider puts into evidence a denial (as an admission of receipt) and seeks admission of the corresponding bill to the extent it links up to the denial, that would satisfy a prima facie case, in my opinion.

The denial is the operative document for prima facie purposes

AR Med. Rehabilitation v State-Wide Ins. Co., 2015 NY Slip Op 25287 (Civil Ct. Kings Co. 2015)

(1) “Neither the Court of Appeals nor the Second Department in Viviane Etienne addressed whether at trial, a medical provider could forgo evidentiary proof of its mailing procedure by relying upon its receipt of a denial form from the insurer. Prior to Viviane Etienne, the Appellate Term, Second Department found that a medical provider’s receipt of an NF-10 denial form from the insurer was sufficient to establish that the claim form was sent by the medical provider and received by the insurer”

(2) “In light of the above, the Court finds that plaintiff’s submission into evidence of the NF-10 denial is sufficient to establish that defendant received the claim. Plaintiff therefore established its prima facie case. As defendant did not present any witnesses to establish its defense, judgment is awarded to plaintiff.”

This goes beyond the NTA cases and the interrogatory cases.  I suppose it makes sense; if this is the case, then why bother with an NTA, subpoena or demanding interrogatories?

What is a prima facie case? I still do not have an answer

Viviane Etienne Med. Care v Country-Wide Ins. Co., 2015 NY Slip Op 04787 (2015)

We are one step closer to day to finally answering this question, and similarly one more step backward.  The Court of Appeals held right at the outset:

The Holding

(1) “We hold that a plaintiff demonstrates prima facie entitlement to summary judgment by submitting evidence that payment of no-fault benefits are overdue, and proof of its claim, using the statutory billing form, was mailed to and received by the defendant insurer. Proof evincing the mailing must be presented in admissible form, including where it is applicable, meeting the business records exception to the hearsay rule.”

(2) “Prior to Art of Healing and following its abandonment, the Second Department has held that “[i]n an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurer, and that payment of no-fault benefits was overdue”

(3) We agree with the Appellate Division Departments that a summary judgment motion in a no-fault insurance case where the benefits are overdue, requires proof that the statutory claim forms were mailed to and received by the insurer.


(1) “Applying these principles to the instant facts, the Appellate Division properly determined that plaintiff met its prima facie summary judgment burden.  As relevant here, to support its motion, plaintiff submitted the eight verification of treatment forms and Matatov’s affidavit. The documents submitted by plaintiff meet the business records exception to the hearsay rule.”

(2) “Matatov’s affidavit states that based on his business agreement with plaintiff, SUM Billing created the verification of treatment forms in the regular course of its business and that the forms were created soon after the services were provided by plaintiff to Cardenas. Indeed, the tight timetable of the no-fault scheme requires prompt submission of proof of claim in order to receive reimbursement. Matatov’s affidavit outlines the office practices and procedures used by SUM Billing to mail claim forms to insurers and demonstrates that Matatov himself mails the forms. Matatov explained that SUM Billing relies on these forms in the performance of its business. Further, the affidavit states how and when the forms at issue here were created and that they were mailed to defendant within the statutory time frame.”

And also

FN 3: “All of the courts below denied plaintiff’s motion for summary judgment on one of its claims dated November 17, 2004, in the amount of $139, as it was timely denied by the insurer. That propriety of that determination is not before this Court as plaintiff did not cross-appeal its denial.”

So now what?

I just do not get it.  At first, I thought that this case kept the status quo ante alive.  In the First Department, summary judgment is established through mailing of the bill and 30-days elapsing.  See Tutto Anesthesia v American Country Ins. Co., 47 Misc 3d 147(A)(App. Term 1st Dept. 2015)

In the Second Department, a showing has to be made in addition to the above that a denial was untimely, defective or never issued.  See e.g. Gutierrez v Allstate Ins. Co., 2015 NY Slip Op 50799(U)(App. Term 2d Dept. 2015)

The business record foundation, albeit through a third-party, has now been resurrected.

Also, whats up with footnote 3.  If Plaintiff cross-appealed would the court have reached the issue as to whether submission of a bill is enough as opposed to disproving the merits of the disclaimer as part of a prima facie case?

There is no resolution here.

Business records

Another thought on the reintroduction of this rule.  The Court reached this issue because the summary disposition n statute requires affidavits and sworn testimony to prevail on motion.  The same considerations do not apply at a trial where 3212’s proscriptions apply.

Amicus Curae

Lastly, i sense many insurance carriers were charged many dollars for Amicus that was not even mentioned.  I suspect the usual arguments that plaintiff medical providers should have to prove medical necessity and casual relationship were stated.  That argument always finds its way into amicus when you read it.  But did anyone inform the Court that we are the only no-fault state that relieves a Claimant of bearing any substantive burden?   And to say that such an argument would have fallen on deaf ears is not necessarily true.  The day before, the Court in a 4-3 affirmed the dismissal of a dog-bite case based upon stare decisis.  But how about the the three dissenters?  They would have followed the majority approach and abandoned strict liability in light of the restatement’s view that a negligence standard is appropriate.

It is the lack of creativity and out of the box thinking that I am afraid at times dooms this industry (at times).  This was the chance and I am afraid the carriers might have missed it.

The prima facie case in the First Department and sinking of a disclosure based defense

Tutto Anesthesia v American Country Ins. Co., 2015 NY Slip Op 50738(U)(App. Term 1st Dept. 2015)

What is there to discover?  Did I just say that?  In light of Ralph Medical, discovery is so limited on the carrier end, outside of good-faith based Mallela allegations.

(1) Plaintiffs-providers established their prima facie entitlement to partial summary judgment on the first-party no-fault claims set forth in their first through sixth causes of action (see Insurance Law § 5106[a]; Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313 [2008].

This formulation is contingent on what the Court of Appeals does on Vivanne.

(2)  “Defendant waived any objections based on lack of proof of assignment since it did not seek verification of the assignments (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348, 348-349 [2005]). Nor may defendant assert the defense of excessive fees, inasmuch as it failed to establish that its denials were timely issued within the statutory 30-day period (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475[2011], lv denied 18 NY3d 810 [2012]).”

Unsure why anybody would go down the AOB route in 2015, and my contribution to the world in Encare solidifed the fee schedule defense precludabiluty doctrine, but also helped usher the April 2013 amendments.

(3) Defendant also failed to demonstrate that summary judgment is premature due to outstanding discovery pertaining to plaintiffs’ prima facie case, since defendant did not make the [*2]required showing that further discovery may raise a triable issue of fact (see Interboro Ins. Co. v Clennon, 113 AD3d 596 [2014]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727 [2006]). Defendant’s speculative contention that further discovery may support its lack of coverage defense is improperly raised for the first time on appeal (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921[2014]), and is, in any event, an insufficient basis for denying plaintiffs’ motion (see Interboro Ins. Co. v Clennon, 113 AD3d at 597]).

I am curious what there is to discovery regarding a lack of coverage defense.  The information for this would be within the possession of the carrier.