First Application of Etienne

Westchester Med. Ctr. v Allstate Ins. Co., 2013 NY Slip Op 08616 (2d Dept. 2013)

“Contrary to the primary argument advanced by the defendant insurance company, the plaintiff Westchester Medical Center, as assignee of Paul Knable (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law on the first cause of action (see Viviane Etienne Medical Care, P.C., as assignee of Alem Cardenas v Country-Wide Ins. Co., _______ AD3d _______ [2013 Slip Op 08430 [2d Dept 2013]).  In opposition, the defendant failed to raise a triable issue of fact as to whether, after receiving the hospital’s NF-5 claim form, the 30-day period within which to pay, deny, or seek verification of the no-fault claim was extended or tolled indefinitely due to the hospital’s failure to comply with a certain request for verification.”

I am thinking Plaintiff presented the billing affidavit of one of its affiants who either said the he submitted the entire medical records of the hospital or that he never received any verification requests.  This is different from Mary Immaculate v. Allstate and Amaze v. Eagle days where all the affiant had to say was that more than 30-days elapsed and payment in full has not been made.  I think the plaintiff bar was hoping Etienne would do that, but that is not the case.  If a prima facie case made its way to other 3 departments, would they hold true to Mary Immaculate v. Allstate (which they are currently following) or would they follow Etienne, which continues to incorporate an Ave T. v. Auto One analysis?

A prima facie case involving durable medical equipment

Queens Med. Supply, Inc. v IDS Prop. & Cas. Ins. Co., 2013 NY Slip Op 51996(U)(App. Term 2d Dept. 2013)

“The billing records submitted by plaintiff do not assert that the supplies at issue had been delivered to plaintiff’s assignor. Nor did plaintiff’s affiant state that he had delivered the supplies [*2]to plaintiff’s assignor. Rather, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or (2) deliver them to the prescribing healthcare providers for subsequent delivery to the eligible injured person. He did not specify in his affidavit which method of delivery was used in this case. Accordingly, plaintiff’s moving papers failed to demonstrate plaintiff’s prima facie entitlement to summary judgment, in that they failed to prove the fact and the amount of the loss sustained (see Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 30 Misc 3d 142 [App Term, 2d, 11th & 13th Jud Dists 2011]).”

Partial Summary Judgment granted on appeal

New York Diagnostic Med. Care, P.C. v Geico Gen. Ins. Co., 2013 NY Slip Op 23360 (App. Term 2d Dept. 2013)

The Court opened up the door today to allow appeals of orders denying partial summary judgment as to the issue of “prima facie” and “timely denials”. The lead case on this issue seemed to suggest otherwise B.Y., M.D., P.C. v Government Empl. Ins. Co., 26 Misc.3d 95 (App. Term 2d Dept. 2010).  But in B.Y., Plaintiff specifically moved for “partial summary judgment” seeking judicial findings that the bills were submitted, overdue and constituted business records.

Here, “plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained”

plaintiff moved for summary judgment or, in the alternative, for a finding, pursuant to CPLR 3212 (g), that plaintiff had established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained.  Thus, in the particular circumstances of this case, including the fact that the Civil Court did make a CPLR 3212 (g) finding as to the timely mailing of the denials and did limit the issues for trial, we find that it is appropriate to make a finding, pursuant to CPLR 3212 (g), that plaintiff established, for all purposes in the action, the submission to defendant of the claim forms and the fact and the amount of the loss sustained, and to therefore further limit the trial to the issue of medical necessity only.”

The court therefore concluded that the sole issue for trial is whether the services lack medical necessity

Amended motion/Admissible Reply papers/Defects in affidavits/delay letter vs. verification requests

Colonia Med., P.C. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 51266(U)(App. Term 2d Dept. 2013)

“Plaintiff opposed defendant’s motion, arguing that the IME doctor’s affidavit, which defendant had submitted in support of its IME nonappearance defense, was incomplete and unsigned, and cross-moved for summary judgment. Subsequently, defendant served what it denominated an amended motion for summary judgment, which included the IME doctor’s complete affidavit. Plaintiff submitted opposition thereto. The Civil Court deemed defendant’s amended motion to be its reply papers. The Civil Court found that plaintiff and defendant had established their prima facie cases and that the sole issues to be determined at trial were “proper notice of the IME, medical necessity and fee schedule.”

“In our opinion, the Civil Court properly considered defendant’s amended motion to be a reply since the substance of defendant’s papers was unchanged and the papers merely corrected a technical defect in the affidavit of defendant’s IME doctor (see CPLR 2001). Furthermore, plaintiff submitted a response to defendant’s reply papers (see Zernitsky v Shurka, 94 AD3d 875 [2012]; Hoffman v Kessler, 28 AD3d 718 [2006]).”

“[t]here was a discrepancy in the recitation by the IME doctor of the address at which the assignor was to have been examined.” (typographical error)

“A review of defendant’s letters to plaintiff reveals that the letters merely notified plaintiff that defendant was delaying consideration of the claims pending investigation into the motor vehicle accident at issue. As a result, these delay letters did not toll the statutory time period within which defendant was required to pay or deny those claims ” (A delay must ask for something)

“Contrary to the implicit determination of the Civil Court, the record shows that plaintiff did not establish its prima facie case ”

This case starts with some procedural history.  It then states that IME affidavits are not probative based upon inconsistencies and then it ends with a statement that a “delay letter” is insufficient to toll the period to pay or deny a claim.   Finally, the affidavit was insufficient to establish a business record foundation (CPLR 4518[a])


All you wanted to know about 4518(a) but were afraid to ask

All Borough Group Med. Supply, Inc. v Geico Ins. Co., 2013 NY Slip Op 23262 (App. Term 2d Dept. 2013)

“At the outset, we note that plaintiff was not required to lay a CPLR 4518 (a) foundation for the assignment of benefits form. An assignment of benefits is not hearsay; like a contract, it has independent legal significance and need only be authenticated to be admisible (sic)(see Kepner-Tregoe, Inc. v Leadership Software, Inc., 12 F3d 527, 540 [5th Cir 1994]; see also Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, plaintiff was attempting to use the delivery receipt and claim form to prove the transactions recorded therein, and so was required to lay a CPLR 4518 (a) foundation for those records.”

“If a record is made in the regular course of business, it is the regular course of business to make the record, and the record is made at or about the time of the event being recorded, the record can be admitted into evidence pursuant to the CPLR 4518 (a) business records hearsay exception.” [Court gives you the questions to ask to lay a 4518(a) foundation.]

“A review of the evidence adduced at trial shows that plaintiff’s witness was employed by plaintiff prior to, during, and after the time that defendant had provided the supplies to plaintiff. The witness testified he and another person who was no longer employed by plaintiff had generated all of plaintiff’s claim forms, and that his father, who was the owner of plaintiff, had generated the delivery receipts. The witness also testified, albeit inartfully, that he was familiar with plaintiff’s office routine and that plaintiff’s delivery receipts and claim forms were routinely and contemporaneously made in the course of plaintiff’s business, and that it is plaintiff’s regular business practice to make such records.”

“In addition, CPLR 4518 (a) provides that a witness’s lack of personal knowledge affects the weight of the record, not the admissibility of the record.”

So consider this a basic evidence lesson from the Appellate Term.

Prima facie case lost

Peace of Mind, Social Work, P.C. v Travelers Prop. Cas., 2013 NY Slip Op 51119(U)(App. Term 2d Dept. 2013)

“At the nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, plaintiff proffered its claim form as proof of the fact and the amount of the loss sustained. Plaintiff’s foundation witness, who was employed not by plaintiff, but by a third party, testified that she had used documents from plaintiff’s file in the preparation of the claim form. Under these circumstances, in order for the claim form to be admissible, pursuant to CPLR 4518 (a), as evidence of the truth of the assertions contained therein, it was necessary for plaintiff to demonstrate that “each participant in the chain producing the record, from the initial declarant to the final entrant, [acted] within the course of regular business conduct or the declaration must meet the test of some other hearsay exception”

It seems that once you enter the realm of the third-party biller, it is just a losing proposition in the Second

Something involving collateral estoppel and prima facie happened here?

V.S. Med. Servs., P.C. v Travelers Ins. Co., 2013 NY Slip Op 50973(U)(App. Term 2d Dept 2013)

“Plaintiff’s contention that, by virtue of the 2005 Civil Court order, it was entitled to judgment in the instant action lacks merit (see Buechel v Bain, 97 NY2d 295, 303-304 [2001]; Parker v Blauvelt Volunteer Fire Co., 93 NY2d 343, 349 [1999]; Comprehensive Med. Care of NY, P.C. v Hausknecht, 55 AD3d 777 [2008]). At trial, plaintiff failed to proffer any evidence to identify the claim forms upon which plaintiff seeks to recover, let alone establish that such claim forms bore the claim number which was set forth in the 2005 Civil Court order upon which plaintiff relied. In any event, plaintiff failed to establish that the claim forms being sued upon in the instant case remained unpaid. As a result, plaintiff failed to make out a prima facie case demonstrating its entitlement to recover”

So Plaintiff in Action #2 failed to present proof at trial to show that summary judgment was granted on the same claim in Action #1 due to a defense that the insurance carrier could not substantiate.  This was perhaps an attempt to play try to make a prima facie case in the Second Department without a foundation witness.  The facts here are vague so, in essence, I am taking a shot in the dark.



Assignment not necessary to make a prima facie case in an assigned first-party action; Prima Facie case

Urban Radiology, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50850(U)(App. Term 2d Dept. 2013)

(1) Law requiring AOB

“The Civil Court dismissed the complaint, finding that plaintiff had not established a prima facie case because it had not offered into evidence an assignment of benefits.

While the claim forms at issue did not contain any language regarding an assignment of benefits, there is nothing in the record to indicate that defendant timely objected to the completeness of the forms or sought verification of the existence of a valid assignment. Accordingly, defendant waived any defense based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]; Hospital for Joint Diseases v Allstate Ins. [*2]Co., 21 AD3d 348 [2005]).”

(2) What is a prima facie case

“Contrary to defendant’s contention, at a trial, unlike upon a provider’s motion for summary judgment, a provider is not required to “show that there is no defense to the cause of action or that the cause of action or defense has no merit” (CPLR 3212 [b]). Rather, it is defendant’s burden to show that it has a meritorious defense (see generally Seaboard Sur. Co. v Gillette Co., 64 NY2d 304 [1984]; Northrup v Blue Cross & Blue Shield of Utica-Waterdown, 235 AD2d 1022 [1997]; 70 NY Jur 2d, Insurance § 1493) and that such a defense is not precluded (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).”

Considering that the validity of an AOB is a defense, in both no-fault and non-no-fault litigation, this makes sense.  The prima facie rule is weird.  It promotes more trials where traditional Mary Immaculate and Dan Medical would control over Avenue T v. Auto One.  I think the Court is probably stretching 3212(b) if it really believes that submission of a bill is sufficient for purposes of trial but not for summary disposition.

A preclusion order renders the defense deficient as a matter of law – prima facie burden established

Lof Med. Supply, Inc. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50595(U)(App. Term 2d Dept. 2013)

This is a rare application of “Avenue T” where the court held the defense was insufficient as a matter of law and awarded summary judgment to the plaintiff.


“A no-fault provider establishes its prima facie case “by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as [*2]a matter of law”


“[P]laintiff demonstrated that defendant’s proffered defense of lack of medical necessity was without merit as a matter of law, in that the Civil Court had issued a prior order precluding defendant from offering any evidence in support of its claimed defense. In opposition to the motion, defendant failed to raise a triable issue of fact”

UB-04 + nothing else does not equal Prima Facie

Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 2013 NY Slip Op 02390 (2d Dept. 2013)

“On this appeal, we are asked to determine whether a no-fault UB-04 form is the functional equivalent of a no-fault New York State Form N-F 5 (hereinafter N-F 5 form), the receipt of which triggers the 30-day period in which a no-fault insurer is required to pay or deny a claim for no-fault benefits or request further verification. For the following reasons, we answer in the negative”

“When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer’s receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317). Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period (see 11 NYCRR 65-3.5[b]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317)”

” The “UBF-1 form” referred to in 11 NYCRR 65-3.5(g) is the predecessor of the current “UB-04” form. Under 11 NYCRR 65-3.5(g), a UBF-1/UB-04 form together with an N-F 5 form must be accepted by a no-fault insurer. The regulation does not state that a UBF-1/UB-04 form alone must be treated as the “functional equivalent” of an N-F 5 form.”

The Appellate Division has now held that the NF-5 is now the loadstar for when the pay or deny clock begins.  In other words, when you receive a UB-92, UB-04, UB-01 – this is insufficient.  An NF-5 is what is needed when the hospital is the Applicant.  Consequently, “verification” of the UB-04/UB-92/UB-01 received prior to the NF-5 is insufficient.  Thus, the order of the Appellate Term, Second Department was reversed.