Another prima facie disaster in the second department

Flatlands Med., P.C. v Allstate Ins. Co., 2012 NY Slip Op 50582(U)(App. Term 2d Dept. 2012)

“Although plaintiff established that defendant had not paid plaintiff’s claims, plaintiff failed to show that the claims had not been denied within 30 days or that the basis for the denials was conclusory, vague or had no merit as a matter of law. Consequently, plaintiff did not establish its prima facie entitlement to judgment as a matter of law”

I just do not know how a Plaintiff in the Second Department can obtain 3212(g) relief.  It seems to me that prima facie may be an all or nothing proposition nowadays in the Second Department.

No Fault and Uninsured Motorist subrogation

Allstate Ins. Co. v Cajo, 2012 NY Slip Op 50292(U)(Civ. Ct. Queens Co. 2012)

“Plaintiff’s right to commence this action did not accrue until September 9, 2011 and post-dated the filing of a notice of trial by the plaintiff.However, the defendants did not move to dismiss the action as untimely. Instead, the defendants have moved to strike the action from the calendar pending completion of discovery, specifically, a physical examination of plaintiff’s subrogor, Milagros Lopez. Although the plaintiff’s right to commence this action has now accrued, it would be unjust to permit the plaintiff to benefit from the premature commencement of the action. Therefore, the notice of trial will be vacated and the action stricken from the trial calendar.

The defendants dispute the cause and extent of the physical injuries for which the no fault benefits and uninsured benefits, sought to be recovered in this action, were paid to plaintiff’s subrogor and have served a demand for a physical examination of Milagros Lopez. The benefits paid to plaintiff’s subrogor were substantial and at her deposition she testified that she still has some pain from her injuries. Therefore, the plaintiff is required to produce Milagros Lopez for a physical examination by the physician designated by the defendants (see CPLR §3121[a]; NYCCA § 208.13).”

So, the Plaintiff subrogee needs to prove that the subrogor (1) sustained a serious physical injury (UM benefit recovery); and (2) the medical services were medically necessary, in order to obtain a recovery in this case.

Surprisingly, there is not a lot of case on the issue involving no-fault and UM (SUM) subrogation.

A passenger may move for partial summary judgment re: liability

Medina v. Rodriguez, 2012 N.Y. Slip Op. 01438 (2d Dept. 2012)

This one caught my radar because it was an odd yet seemingly potent motion.  This was an awesome motion in my opinion.

“The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CLPR 3212[g]).  The plaintiff made a prima facie showing that he did not engage in any culpable conduct that contributed to the happening of the accident”

Second Medical – loses at prima facie again

Second Med., P.C. v GEICO, 2012 NY Slip Op 50236(U)(App. Term 2d Dept. 2012)

When I saw Second Medical, I remembered that now Supreme Court Justice Peter P. Sweeney commented about the inability of this entity to meet its prima facie burden at trial (Second Medical, P.C. v. Auto One Ins. Co., 20 Misc.3d 291 [Civ. Ct. Kings Co. 2008]). Second Medical was cited in the Appellate Term case (Carothers v. GEICO Indem. Co., 24 Misc.3d 19 [App. Term 2d Dept. 2009]), which was  latter affirmed in (Matter of Carothers v. Geico., 79 A.D.3d 864 [2d Dept. 2010]), one of the bigger prima facie cases of this decade.

Some things never change and I guess some people never learn.  On any other week, this case would get the Mr. Five Boro award for appellate excellence, but Second Medical gets a pass because Ms. Ava took it this week.  Close call though.

Prima facie case for Durable Medical Equipment

Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 52441(U)(App. Term 2d Dept. 2011)

Why is a prima facie case different in a DME case?  All this discrimination against DME suppliers…

“The billing records submitted by plaintiff in support of its motion for summary judgment 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 to plaintiff’s assignor. Indeed, he stated that it is his general practice to either (1) deliver his supplies directly to the eligible injured person or to (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 its prima facie entitlement to summary judgment.”

Prima facie really does not mean prima facie

A.B. Med. Servs., PLLC v Utica Mut. Ins. Co., 2011 NY Slip Op 21243 (App. Term 2d Dept. 2011)

I am not going to lose sleep over AB Medical not prevailing on this appeal – remember when AB  used to always win?  I was in diapers then.

Here is the holding:

“An order deciding a motion for summary judgment determines only whether the affidavits and proofs submitted to the court in support of, or in opposition to, the motion entitle a party to a pretrial judgment (see CPLR 3212 [b]; Cushman & Wakefield v 214 E. 49th St. Corp., 218 AD2d 464, 468 [1996]). A court’s finding that a movant has made a prima facie showing of its entitlement to summary judgment represents nothing other than that the movant has shifted the burden to the opposing party to raise a triable issue of fact, just as a court’s “denial of a motion [*2]for summary judgment establishes nothing except that summary judgment is not warranted at this time” (Siegel, NY Prac § 287, at 487 [5th ed]).

In our prior order, we found only that plaintiff had submitted proof, in admissible form, of each fact required to demonstrate its entitlement to judgment as a matter of law. The order did not include a finding, either explicit or implicit, that such facts were incontrovertible, and thus that they could be deemed established for all purposes in the action pursuant to CPLR 3212 (g). Indeed, the very shifting of the burden of proof upon a finding that a plaintiff has demonstrated its prima facie entitlement to summary judgment presupposes that the defendant, in opposition, might be able to rebut any aspect of the plaintiff’s case. It follows, then, that there is nothing in this court’s order suggesting that defendant could not, at trial, dispute any aspect of plaintiffs’ case. As a result, the Civil Court improperly relied upon this court’s prior order in limiting the issues for trial pursuant to CPLR 3212 (g).”

This makes sense to some extent.  In a 5102(d) action, let us say that Plaintiff moves for SJ on the basis that he proved a fracture, prima facie, but the defendant raised an issue of fact that there really was no fracture.  Would it make sense for a court to grant Plaintiff 3212(g) relief, requiring Defendant to prove a lack of fracture at trial?  (we are assuming that liability is not an issue)

Reverse it.  What would happen if Defendant on SJ prima facie proved that the Plaintiff did not have a fracture, and Plaintiff raised an issue of fact that there was a fracture?  Does this mean Defendant does not have to offer any proof at trial?

Third situation: Both parties move and cross move for summary judgment and the court holds that: (1) Plaintiff made out its  prima facie entitlement to summary judgment through proof that there was a fracture, but Defendant raised a triable issue of fact showing there was not fracture; and (2) Defendant in support of his motion prima facie demonstrated there was no fracture, but Plaintiff raised a triable issue of fact that there was a fracture.

You see how tricky this gets.

A universal definition of a prima facie case

Jesa Med. Supply, Inc. v Republic W. Ins. Co., 2011 NY Slip Op 51127(U)(App. Term 2d Dept. 2011)

A universal definition of a prima facie case.

“The affidavit also established that the claim was mailed to defendant, as the affiant averred that she had personally mailed the claim, and that defendant did not deny the claim within 30 days. Consequently, plaintiff established its prima facie entitlement to summary judgment (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]), and the burden shifted to defendant to raise a triable issue of fact”

Judge Hirsh says there is no difference in a hopsital and a standard medical provider's prima facie case

Lenox Hill Hosp. v Allstate Ins. Co., 2011 NY Slip Op 50800(U)(Dis. Ct. Nassau Co. 2011)

Point #1: “A hospital makes a prima facie showing of entitlement to judgment as a matter of law by submitting proof the necessary billing forms and documents have been mailed to and received by the no-fault insurer and payment is overdue. New York Hospital Medical Center of Queens v. Country Wide Ins. Co., 82 AD3d 723 (2nd Dept. 2011); Westchester Medical Center v. Countrywide Ins. Co., 45 AD3d 676 (2nd Dept. 2007); and Mary Immaculate Hosp. v. Allstate Ins. Co., 5 AD3d 742 (2nd Dept. 2004).”

Point #2: “A medical provider must establish as part of its prima facie case the billing records submitted for payment are business records. Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD2d 644 (2nd Dept. 2008); and Dan Medical, P.C. v. New York Central Mut. Fire Ins. Co., 14 Misc 3d 44 (App. Term 2nd & 11th Jud. Dists. 2006).”

Point #3: “All medical providers, other than hospitals, must establish as part of their prima facie proof in an action for first party no-fault benefits the claim forms and bill are business records. See, Viviane Etienne Medical Care, P.C. v. County-Wide Ins. Co., supra – physician’s services; Lenox Hill Radiology v. New York Central Mut. Fire Ins. Co., 20 Misc 3d 851 (Dist. Ct. Nassau Co. 2008) – radiological services; Craigg Total Health Family Health Chiropractic Care, P.C. v. QBE Insurance Corp., 20 Misc 3d 1118(A) (Dist. Ct. Nassau Co. 2008) – chiropractic services; North Acupuncture, P.C. v. State Farm Ins. Co., 14 Misc 3d 130(A) ( App. Term 2nd & 11th Jud. Dists. 2005) – acupuncture treatment; Bayside Rehab. & Physical Therapy, P.C. v. Geico Ins. Co., [*4]24 Misc 3d 542 (Civil Ct. Richmond Co. 2009) – physical therapy treatments; Complete Orthopedic Supplies, Inc. v. State Farm Ins. Co., 16 Misc 3d 996 (Civil Ct. Queens Co. 2007) – durable medical supplies.”

Point 4: “The testimony or affidavit of a third party biller is insufficient to lay the foundation necessary to establish the claim form and billing documents are business records. Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 79 AD3d 864 (2nd Dept. 2010: and Viviane Etienne Medical Care, P.C. v. Country-Wide Ins. Co., 31 Misc,3d 21 (App.Term, 2nd, 11th & 13th Jud. Dists. 2011).”

Holding: “The cases regarding hospital and cases regarding all other medical providers have developed on parallel tracks. The cases involving motions for summary judgment relating to hospital admissions do not address or discuss whether the hospital must establish the necessary billing documents ( NF-5, bill, assignment) are business records of the hospital.This Court can find no basis in the no-fault law or regulations why there should be a difference in the proof required of a hospital and the proof required of all other medical providers to establish a prima facie entitlement to judgment as a matter of law. A hospital should as part of its prima facie proof be required to establish the no fault claim, bill and other documentation submitted in connection with a clam to obtain payment of first party no-fault benefits is a business records.”

Go Judge Hirsh.  Finally, someone calls this prima facie idiocy -as it currently exists in the law- for what it is.

Why?

Quality Health Prods. v Country-Wide Ins. Co., 2011 NY Slip Op 50328(U)(App. Term 2d Dept. 2011)

Plaintiff established that defendant did not pay plaintiff’s claim. However, plaintiff failed to establish that the claim was not denied within 30 days (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Plaintiff attached a copy of a portion of defendant’s denial of claim form to its motion papers, but this copy did not establish that defendant did not deny the claim within 30 days, since the date of the denial of claim form was not contained in the portion of the form annexed to plaintiff’s papers. Moreover, plaintiff’s affiant did not provide the date on which the denial of claim form was received by plaintiff. Furthermore, the reason for defendant’s denial of the claim was also not included in the annexed portion of the form. As plaintiff failed to show that the claim was not denied within 30 days or that the basis for the denial was conclusory, vague or had no merit as a matter of law, it failed to make a prima facie showing of its entitlement to judgment as a matter of law”

It is not my place to tell people how to practice law.  But, why?  Really? Hello?  I just do not get it.

A new twist on prima facie

Jamaica Med. Supply, Inc. v Kemper Cas. Ins. Co., 2011 NY Slip Op 50315(U)(App. Term 2d Dept. 2011)

“The billing records submitted by plaintiff in support of its motion for summary judgment 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 to plaintiff’s assignor.”

I’m starting to think that people are out of their mind for appealing some of these issues.  Each subsequent appeal that a misguided plaintiff attorney perfects brings us this much closer to prima facie medical necessity.  I wish I was the Respondent on this case.