Another less than noteworthy prima facie decision

New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co., 2013 NY Slip Op 50419(U)(App. Term 2d Dept. 2013)

“Although plaintiff established that defendant had not paid the claim, plaintiff failed to show that the basis for the denial of the claim was conclusory, vague or lacked merit as a matter of law”

“In opposition to defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of medical necessity, plaintiff submitted an affidavit by its doctor which sufficiently demonstrated the existence of a question of fact as to medical necessity”

I know most of the judges in Queens and Kings refuse to follow the above line of cases regarding prima facie.  Invariably, Plaintiff says that the Appellate Division, in some hospital case, said that proof of mailing of a bill and 30-days elapsing from mailing is sufficient to make a prima facie case, and the courts will find that sufficient.  The cases then get appealed and reversed.

Putting aside certain realities, could this plaintiff have established his prima facie case through showing that the medical services were medically necessary?  This would then show, until the burden shifted, that the denial lacks merit.  Of course, Defendant through its peer review would have raise a triable issue o fact.

Watch how Plaintiff made prima facie

Compas Med., P.C. v Farm Family Cas. Ins. Co., 2013 NY Slip Op 50254(U)(App. Term 2d Dept. 2013)

hPlaintiff made his prima facie case based upon: i) his motion ([a] “In support of its motion seeking summary judgment, plaintiff submitted an affidavit by its [*2]president which established that the claim forms had been mailed to defendant[;][b] The affidavit also established proof of the fact and the amount of the loss sustained, by demonstrating that the claim forms annexed to plaintiff’s motion were admissible pursuant to CPLR 4518); and   ii)Defendant’s cross-motion (“As to plaintiff’s first, second, third, fifth, sixth, seventh, eighth, and ninth causes of action, the papers submitted by defendant in support of its cross motion showed that the denials of these claims, which were based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs), were untimely”)

The reason you can say this is because on the same day (Medical Assoc., P.C. v Clarendon Natl. Ins. Co., 2013 NY Slip Op 50248(U)[App. Term 2d Dept. 2013])  and on many days, similar proof was insufficient to make a prima facie case because: “plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law.

But Compas goes to show how a plaintiff will sacrifice prima facie just to avoid going head to head with Unitrin.  It also shows why plaintiff firms will “locate” in Nassau County so that they can get arbitration hearings in Second Department venues where Unitrin will not be followed.

Finally, this shows again how in no-fault, the rule that a court should not consider the sufficiency of the opponents papers if the movant fails to make a prima facie case is completely ignored.

Another in the never ending line of prima facie disasters

A.B. Med., PLLC v GEICO, 2013 NY Slip Op 50203(U)(App. Term 2d Dept. 2013)

“As plaintiff’s affidavit in support of its motion failed to demonstrate that defendant’s denial of claim forms were either untimely or without merit as a matter of law, plaintiff failed to establish its prima facie [*2]entitlement to summary judgment.”

These prima facie cases are extremely tough on the plaintiff’s bar.  I wonder if this formulation will find its way to the trial context?

Additional verification dilemma

All Boro Psychological Servs., P.C. v Allstate Ins. Co., 2013 NY Slip Op 50069(U)(App. Term 2d Dept. 2013)

Plaintiff demonstrated that the bill was overdue.  Defendant came back and said the bill was in verification status.   Plaintiff moves for summary judgment and Defendant cross-moves for summary judgment or discovery.  Court grants Defendant discovery. Plaintiff appeals, Defendant does not cross appeal, so what happens next?

Court grants Defendant summary judgment upon a search of the record.  Furthermore, Court says the following about plaintiff’s prima facie case:

“A no-fault provider establishes its prima facie entitlement to summary judgment 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 failed to pay or deny the claim within the requisite 30-day period, or that the defendant issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]). Here, while plaintiff demonstrated that the claim had not been paid, it failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form (see Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).”

It would seem that the provider, in order to win summary judgment, would have to prove that it never received the verification requests or that it complied with the verification requests.  As that was not done here, summary judgment could not be granted.

This is just rough.

The trouble with proving prima facie on summary judgment as a plaintiff

For those aspiring writers out there, you could put together a decent law journal article in less than 4 hours based upon the near impossibility of plaintiffs’ ability to make a prima facie case on summary judgment in the lower courts in the Second Department.

Avenue I Med., P.C. v GEICO Indem. Co., 2012 NY Slip Op 52399(U)(App. Term 2d Dept. 2012);

Brooklyn Hgts. Physical Therapy, P.C. v New York Cent. Mut. Fire Ins. Co., 2012 NY Slip Op 52398(U)(App. Term 2d Dept. 2012)

And now Hennig’s residual troubles with proving prima facie in District Court:

NYU-Hospital for Joint Diseases v American Tr. Ins. Co., 2012 NY Slip Op 52387(U)(App. Term 2d Dept. 2012)

Lenox Hill Hosp. v Tower Ins. Co. of N.Y., 2012 NY Slip Op 52391(U)(App. Term 2d Dept. 2012)

I have to imagine that the folks at AAA must like when they see decisions like this.  The only alternative to this (besides trying ever case) would be to file in the First Department; yet, the calendar backups out there are atrocious.  I would say file upstate, but then you will get a forum non conviens motion which will probably get granted.  One could say that the courts (through 5 year adjournments) and the Appellate Term have done what the Legislature has been unable to do.

IME no-show defense defeated based upon affidavit issue – prima facie denied based upon a denial which Defendant did not prove was mailed

BR Clinton Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co.,  2012 NY Slip Op 50880(U)(App. Term 2d Dept. 2012).

An affidavit executed by defendant’s litigation examiner demonstrated that denial of claim forms, which denied the claims at issue in the first, second, fourth and fifth causes of action based upon the failure of plaintiff’s assignor to appear for the IMEs, had been timely mailed (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). However, the affidavit did not address the claim at issue in the third cause of action. As a result, defendant established its prima facie entitlement to judgment as a matter of law as to the first, second, fourth and fifth causes of action”  (At this point, Defendant wishes he could rely on Unitrin)

“The branch of plaintiff’s cross motion seeking summary judgment on the third cause of action should have been denied as well, as plaintiff failed to demonstrate that defendant’s denial of claim form, which was attached to plaintiff’s cross motion, was not timely mailed to plaintiff, or that it was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 (a)”

Again – prima facie

Top Choice Med., P.C. v Geico Gen. Ins. Co., 2012 NY Slip Op 50778(U)(App. Term 2d Dept. 2012)

“[p]roof 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 a matter of law”

“Here, plaintiff failed to demonstrate that defendant’s denial of claim forms were either untimely or without merit as a matter of law.”

Final order of preclusion became automatic – no need to move for one

Ortho-Med Surgical Supply, Inc. v American Tr. Ins. Co., 2012 NY Slip Op 22119 (App. Term 2d Dept. 2012)

The “so-ordered” stipulation functioned as a conditional order of preclusion, which became absolute upon defendant’s failure to timely and sufficiently comply therewith (see Panagiotou v Samaritan Vil., Inc., 66 AD3d 979 [2009]; Blumenthal Chiropractic, P.C. v Praetorian Ins., 34 Misc 3d 135[A], 2011 NY Slip Op 52386[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Colonia Med., P.C. v Liberty Mut. Fire Ins. Co., 34 Misc 3d 127[A], 2011 NY Slip Op 52283[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Nevertheless, plaintiff moved for a final order of preclusion. Although it was unnecessary for plaintiff to make such further application to the court, in doing so, plaintiff authorized the court to revisit the issue of preclusion and to consider defendant’s opposition thereto.

“A defendant’s preclusion from introducing evidence at trial does not automatically entitle a plaintiff to summary judgment or relieve the plaintiff of the burden of proving its case (see Mendoza v Highpoint Associates, IX, LLC, 83 AD3d 1 [2011]). In the instant case, plaintiff’s moving papers failed to establish a prima facie entitlement to summary judgment (see CPLR 4518; Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dan Med., P.C. v New York Cent. Mut. Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the Civil Court properly denied the branch of plaintiff’s motion seeking summary judgment.”

“On appeal, defendant argues that it was not precluded from offering evidence in support of its cross motion for summary judgment because the so-ordered stipulation barred it only from offering evidence “at trial.” However, to allow defendant to use evidence in support of its cross motion which it is barred from introducing at trial “would perversely undermine the point of the order by allowing defendant to benefit from the short cut of summary judgment by use of the same evidence that otherwise would have been barred at trial”

Perhaps three observations can be divined from this case.  First, there is no need to formally move for a final order of preclusion.  Thus, it would be acceptable for the party who precluded his or her adversary to file a Note of Issue (Notice of Trial) with certificate of readiness and not worry about falsely responding in the affirmative to the statement: “All discovery is complete”.

Second, we already knew that the preclusion to offer evidence at trial carried over to summary judgment.

Third, what did Plaintiff need to show on motion to win?

Summary judgment granted under the new interpretation of prima facie

New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co., 2012 NY Slip Op 50681(U)(App. Term 2d Dept. 2012)

“The affidavit by plaintiff’s billing manager was sufficient to establish that the claim forms annexed to the motion papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C., 55 AD3d 644 [2008]; Fortune Med., P.C. v Travelers Home & Mar. Ins. Co., 14 Misc 3d 136[A], 2007 NY Slip Op 50243[U] [App Term, 9th & 10th Jud Dists 2007]), that the claim forms had been mailed to defendant within 45 days of the date services were rendered (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that the basis for defendant’s denials, i.e., that “written proof of claim was provided more than 45 days after the date these services were rendered” was “without merit as a matter of law.” Contrary to defendant’s contention, it is not the date of defendant’s receipt of a claim form which determines whether the submission of a claim form is untimely, but rather the date of plaintiff’s submission of the claim form (see Insurance Department Regulations [11 NYCRR] § 65 – 1.1 [“the eligible injured person or that person’s assignee . . . shall submit written [*2]proof of claim to the Company . . . in no event later than 45 days after the date services are rendered”]; see also SZ Med. P.C. v Country-Wide Ins. Co.,12 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2006]; Ops Gen Counsel NY Ins Dept No. 04-02-12 [Feb. 2004]).”

Prima facie gone bad

Complete Radiology, P.C. v Progressive Ins. Co., 2012 NY Slip Op 50583(U)(App. Term 2d Dept. 2012)

“A no-fault provider establishes its prima facie entitlement to summary judgment 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 a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Here, plaintiff’s affidavit failed to state unequivocally that defendant’s denial of claim forms were either untimely or without merit as a matter of law.”
Cases like this make AAA a lot of money.