And why would you not bring your case in Manhattan or the Bronx?

Central Nassau Diagnostic Imaging, P.C. v GEICO, 2010 NY Slip Op 20244 (App.Term 1st Dept. 2010)

I am going to annotate this opinion –

Here is the synopsis of the argument:

“On appeal, defendant argues that plaintiff could not rely upon defendant’s admissions resulting from its failure to respond to the notice to admit to establish plaintiff’s prima facie case. Defendant maintains that, notwithstanding the factual admissions resulting from its failure to respond to the notice to admit, plaintiff was required to call witnesses at trial to lay a foundation for the admission into evidence of the bills. Because plaintiff did not call any trial witnesses, defendant asserts that the complaint should have been dismissed, as plaintiff failed to establish entitlement to recover the assigned no-fault benefits. We disagree, and affirm.”

Here is the holding:

“[p]laintiff’s requests for admissions were appropriate and defendant, by failing to respond to the notice to admit or seek other appropriate relief, is deemed to have admitted the facts on which plaintiff sought admissions. Because defendant admitted that the two bills attached to the notice were “true and accurate” copies of the bills received by defendant and that defendant has not paid those bills, plaintiff established its entitlement to recover the overdue assigned first-party no-fault benefits (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).”

The final nail in the coffin from this court:

“Our conclusion that a plaintiff-provider can use admissions obtained through a notice to admit to establish its entitlement to recover overdue assigned first-party no-fault benefits is consonant with the purposes underlying the No-Fault Law, which “were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Medical Socy. of State v Serio, 100 NY2d 854, 860 [2003]), as well as case law [*3]allowing a plaintiff-provider to establish its entitlement to such benefits based on admissions obtained from a defendant-insurer on interrogatories (see Fair Price Med. Supply, Inc. v St. Paul Travelers Ins. Co., 16 Misc 3d 8 [2007]).”

The Appellate Term, Second Department gets slighted:

“To the extent Bajaj v Gen. Assur. (18 Misc 3d 25 [2007]) can be read to support a contrary result, we decline to follow it.”

My thoughts:

Why would a plaintiff stipulate to anything if an unanswered notice to admit or Interrogatory #18 of a famous law firm’s discovery package is completely answered?

Admittedly, I suppose this decision makes sense and is correct on the law as Appellate Division authority exists right now.  As a practitioner, it just seems crazy that a provider can mail a piece of paper – it probably can even be a boulder that Fred Flintstone chizzled into – wave a wand and make its case through the statutorily mandated duties of an insurance carrier.  Blame the Appellate Division for this result.

But, I have to laugh at how allowing a medical provider to meet its prima facie case without calling a witness or relying on an insurance carrier’s admissions: “[r]educe[s] the burden on the courts and to provide substantial premium savings to New York motorists”.  It looks like the author of this per curiam opinion decided to hurl some of the left over salt from the stockpiles that New York City has at the conclusion of the winter season at Geico’s counsel’s open wounds.


I was informed last night that I was actually referencing “interrogatory #8”, see supra.  I said “18”.  And yes, I have received many motions over the years explaining how my response to this famous interrogatory was deficient.

The denial of claim form does not need to be placed into evidence

Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 2010 NY Slip Op 50990(U)(App. Term 2d Dept. 2010)

“Plaintiff argues, among other things, that defendant’s motion should have been denied because defendant failed to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. This argument is unavailing. Defendant did not offer the denial of claim forms to establish the truth of the matters asserted therein, such as the lack of medical necessity of the services rendered, but rather to show that such denials were sent, and that, therefore, the claims were denied. As the denial of claim forms were not offered for a hearsay purpose, they did not need to qualify as business records (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]).

Plaintiff raises the same argument regarding the notice of cancellation offered by defendant with respect to the insurance policy issued to Manuel Espinal which defendant had canceled. Again, since this document was not being offered for a hearsay purpose, it did not need to qualify as a business record. As plaintiff’s remaining contentions are meritless, the order is affirmed.”

In St. Vincent Medical, P.C. v. Mercury (App. Term 2d Dept. 2009) and NY&P v. Elrac Inc.(2d Dept. 2004), it was held that the denials constituted business records despite the objections of the respective plaintiffs.  Also, Dan Medical holds that a bill has to be placed into evidence to satisfy a provider’s prima facie case.  So, I am confused by this one.

CORRECTION – SeeSt. Vincent Medical Care, P.C. v. Mercury Cas. Co. 23 Misc.3d 135(A)(App. Term 2d Dept. 2009)(“The affidavit of defendant’s claim representative set forth the affiant’s personal knowledge of defendant’s business practices and procedures, so as to lay a foundation for the admission of the documents annexed to the affidavit as business records (see CPLR 4518; Dan Med., P.C. v New York Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2007]”).

The second case I cited above should be:  Hospital for Joint Diseases v. Elrac, Inc. 11 A.D.3d 43 (2d Dept. 2004)(“We expressly reject the argument of NY & P Hospital that the affidavit of a claims representative based on records maintained by an insurer in the ordinary course of business did not constitute admissible evidence sufficient to establish a valid defense (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146 [2003]; First Interstate Credit Alliance v Sokol, 179 AD2d 583, 584 [1992]). Personal knowledge of such documents, their history, or specific content are not necessarily required of a document custodian (see DeLeon v Port Auth. of N.Y. & N.J., supra”)

There is another case: Montefiore Medical Center v. Liberty Mut. Ins. Co. 31 A.D.3d 724 (2d Dept. 2006)(“Contrary to the contention of the plaintiff Montefiore Medical Center, the affidavit of the defendant’s claims representative based on records maintained by the insurer in the ordinary course of business was sufficient to establish the defense (see Hospital for Joint Diseases v. ELRAC, 11 A.D.3d 432, 433, 783 N.Y.S.2d 612). Similarly, the documents submitted on the cross motion demonstrate that the insurer effectively canceled the policy (see Hughson v. National Grange Mut. Ins. Co., 110 A.D.2d 1072, 488 N.Y.S.2d 930″).

Where you can go wrong on a liability case – an interesting and scary read

Miller v Bah, 2010 NY Slip Op 04753 (2d Dept. 2010)

“After he testified, the plaintiff, who did not identify the defendant in court as the driver of the offending vehicle, rested his case without calling another witness, or offering an accident report into evidence. The defendant, who did not present a case, then moved pursuant to CPLR 4401 for judgment as a matter of law.”

Defendant eventually receives the directed verdict, and a malpractice case may be on its way.

What is a prima facie case in the Second Department?

You will have to wait.

Matter of Andrew Carothers, M.D., P.C. v Geico Indemnity Co., 2010 NY Slip Op 72075(U)(2d Dept. 2010)

In the Matter of Andrew Carothers, M.D., P.C.,

appellant, v GEICO Indemnity Company,


(Index No. 1829/07)


Application by the appellant pursuant to 22 NYCRR 670.8(d)(2) to enlarge the time to serve and file a reply brief on an appeal, by permission, from an order of the Appellate Term of the Supreme Court, Second, Eleventh, and Thirteenth Judicial Districts, dated July 14, 2009.

ORDERED that the application is granted and the reply brief shall be served and filed on or before June 2, 2010.


A tongue twister from the Fourth Department

“It is well established that “ [a] denial of a motion for summary judgment is not necessarily res judicata or the law of the case that there is an issue of fact in the case that will be established at the trial’ ” (Wyoming County Bank v Ackerman, 286 AD2d 884). Nevertheless, “[i]f the facts at [trial] are substantially the same as those presented in the prior appeal, the trial court must adhere to this [C]ourt’s determination of the controverted questions of law” (Bolm v Triumph Corp., 71 AD2d 429, 434, lv dismissed 50 NY2d 801, 928). Because we concluded in the prior appeal that there is a triable issue of fact whether the letter signed by defendant’s [*2]president restarted the statute of limitations (Caleb, 19 AD3d 1090; see General Obligations Law § 17-101), the court was bound by the doctrine of law of the case to submit that issue to the jury.”

If an appellate court makes a finding that a certain fact or issue has been established and not rebutted on appeal, then the Fourth Department is of the view that it is improper for a trial court to a force a trial on that issue.  Six words and an ampersand: (1) prima (2) facie (3) case & (4) timely (5) mailed (6) denial.  I refuse to decipher the Morse code.

Since this is the only Fourth Department from the April series of decisions that I will be posting, I am going to add a thought that is completely unrelated to the post.  Take a look at the cases that the Fourth Department decided on April 30, 2010.  This would be the second section of cases – the first are the appellate motions.  You will see – and I am not kidding you – that about 30% of the cases have dissents.  Of those 30%, at least 40-50% have two Justice dissents, which allows a final judgment to be taken to the Court of Appeals as of right.  This is unprecedented.  I have been opining for months that there are an inordinately large number of dissents up in our Rochester Appellate Court.  But I have never in my life have seen anything from an appellate court in New York, like what I saw in the April 30, 2010 batch of cases.

By the way, the most interesting case that came out on April 30, 2010 was this case entitled Progressive Halcyon Ins. Co. v Giacometti, 2010 NY Slip Op 03544 (4th Dept. 2010).  It involved an issue as to whether the presumption of “permissive use” has been rebutted due to a “backseat driver” sitting in the front passenger seat, who jerks the steering wheel and causes an accident.  Although completely unrelated to no-fault, this is a 4-1 decision you must read.

Intervenor major medical insurance carrier tried to recoup settlement proceeds between the injured person and the tortofeasor – but to no avail

Reiss v Roadhouse Rest., 2010 NY Slip Op 01632 (2d Dept. 2010)

“At the hearings before the JHO, the intervenors failed to prove that GHI was entitled to reimbursement under its insurance contract with the plaintiff. More particularly, the intervenors failed to prove that any part of the settlement proceeds in this action included a recovery for past medical expenses and, thus, could not demonstrate that GHI was entitled to the reimbursement of medical benefits it paid on the plaintiff’s behalf. The intervenors’ sole witness, the attorney representing Healthcare Recoveries, which itself was only an agent retained by GHI to pursue the reimbursement claim, was not qualified to testify regarding the terms of the health insurance agreement between GHI and the plaintiff (see Franklyn Folding Box Co. v Grinnell Mfg., 234 AD2d 505, 506), and his testimony that the plaintiff’s past medical expenses were considered by the parties in reaching their settlement was mere speculation based upon inadmissible hearsay (see generally Matter of Hausknecht v Comprehensive Med. Care of N.Y., P.C., 24 AD3d 778, 779). The intervenors also improperly sought to prove the amount of GHI’s claim by seeking to admit into evidence, as a business record, the consolidated statement of benefits prepared by Healthcare Recoveries from information it obtained from GHI. Since the intervenors’ sole witness also was not qualified to give testimony regarding GHI’s record-keeping practices, that document should not have been admitted into evidence (see Lodato v Greyhawk N. Am., LLC, 39 AD3d 494, 495).”

Many times – and this is happening more frequently – the injured person seeks to have post no-fault IME medical treatment paid for through his or her major medical carrier.  When a personal injury case settles or even is tried to a verdict, the major medical carrier through their collection agent will usually attempt to recoup the paid-out benefits against the injured person through recovery on the underlying lien.  This will take place in the context of a Civil action.  The injured person, assuming there is no assignment of benefits, will then bring a third-party against the no-fault carrier.

The no-fault carrier is subject to suit in a contractual and contribution role of sorts.  As we can see, the collection agent of the major medical carrier has some hurdles – not insurmountable but significant – to recoup the benefits from the injured person.  Should the major medical carrier fail to make a prima facie case as seen above in Reiss, then the no-fault carrier is not on the hook.

Finally, and somewhat related is that the collection agent cannot get around the business record foundation necessary to put the documentation and interpretation of the major medical carrier’s records into evidence.

This case is interesting to say the least.

A civil court upholds Domotor, but applies it in a strange fashion

Dugo v Allstate Ins. Co., 2010 NY Slip Op 50102(U)(Civ. Ct. Richmond Co. 2010)

Lately, various defense counsel have been challenging the precepts behind the Domotor case, which holds that a disclaimer of future benefits excuses compliance with all conditions precedent to coverage, including the timely submission of claims to the insurance carrier.  Since Domotor is an Appellate Division, Second Department opinion that has not been overturned, it would seem incongruous to believe that an insurance carrier can successfully rely on the 45-day non submission defense in this scenario.  Indeed, every published lower court case has found that a global denial excuses compliance with all conditions precedent to coverage including, among other things, the responsibility to timely submit a claim.

This case is interesting because, as seen below, the Civil Court held that the failure to timely submit a claim following a global denial is excused, but the plaintiff may not rely on the supposed presumption of medical necessity that attaches to a statutory claim form.  Therefore, plaintiff must make a prima facie showing that the contested service was medically appropriate in the first instance.  As seen below:

“Plaintiff contends that once defendant issues a general denial which predates any services provided by plaintiff, it is no longer under an obligation to submit claims within 45 days of the date of service. Defendant contends that its general denial does not obviate plaintiff’s obligation, under the No – Fault Law, to submit a claim within 45 days.

Defendant’s attempt to distinguish the current factual situation from the governing case of Mtr. Of State Ins Co. V. Domotor, 266 AD3d 219 (2d Dept. 1999) is unavailing….

Allstate’s “ability to resolve the claims at issue if warranted” is not prejudiced. Plaintiff had the option of continuing to submit claims, despite Allstate’s general denial, and chose not to. Since plaintiff has failed to file its claim, no presumption of medical necessity attaches to the services rendered by plaintiff.The burden therefore has not shifted to defendant to demonstrate the lack of medical necessity. See, , e.g. Acupuncture Prime Care, P.C. v. State Farm Mutual Auto Ins., 2007 NY Slip Op. 52273U, 17 Misc 3d 1135A( Dist. Ct., Nassau Co. 12/3/2007);A.B. Medical Services, PLLC v. NY Central Mutual Fire Ins. Co., 2005 NY Slip. Op. 50662(U), 7 Misc 3d 1018(A) (Civil Ct. Kings. Co. 2005); Citywide Social Work & Psychological Services v. Travelers Indemnity, 3 Misc 3d 608, 609 (Civil Ct., Kings [*3]Co. 2004). At trial, plaintiff must establish the medical necessity of the services rendered and negate the general denial issued by Allstate that pursuant to an IME, no further medical services were warranted.”

It is an interesting theory that Judge Levine has posited in relation to forcing a provider to make a prima facie showing that the disputed services were medically appropriate in this factual situation.   As we all know, medical necessity is not part of a provider’s or injured person’s prima facie case.  This is a defense that only becomes relevant following the submission of a timely denied overdue statutory claim form, or in this case, proof that a global denial was issued, received and that the services were rendered after the issuance of said global denial.

Similarly, the causal relation between the loss and the injury is also a defense and is not part of a provider’s prima facie case.  In essence, what independent significance does the claim form really have?  It would appear that in the paradigm the courts have created, the only thing the claim form does is tell us how much is in dispute and, in effect, shifts the burden of production to the insurance carrier.

Thus, is there really a presumption of medical necessity that attaches to a claim form, or is the notion of medical necessity (similar to causation) presumed in the more global sense?  See, Kingsbrook Jewish Medical Center v. Allstate Ins. Co. 61 A.D.3d 13 (2d Dept. 2009); Bronx Radiology, P.C. v. New York Cent. Mut. Fire Ins. Co., 17 Misc.3d 97 (App. Term 1st Dept. 2007).  I think it is the latter.

For the record, I think that the medical necessity of a service and the causal relation between the loss and the service should be a burden that falls on the provider.  It is like that in every other state.  Why should we be different?  But as this fits within the settled law in this State, it would appear that the insurance carrier in the Domotor scenario would have to prove the lack of medical necessity of a service in the first instance, similar to any other insurance carrier.

Was the bill overdue when the action was commenced?

Omni Chiropractic, P.C. v Travelers Ins. Co. 2009 NY Slip Op 52505(U)(App. Term 2d Dept. 2009)

“A provider generally establishes its prima facie case by proof of the submission of a statutory claim form, setting forth the fact and amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In the case at bar, plaintiff failed to adduce evidence establishing that payment of the no-fault benefits at issue was overdue. Contrary to plaintiff’s contention, neither the admission of its bills into evidence nor plaintiff’s prosecution of this action gives rise to an inference that the bills were overdue or dispenses with plaintiff’s obligation to establish this element of its prima facie case. Accordingly, the judgment is affirmed.”


A prima facie case of medical necessity?

In reading some of the entries in this blog, you might have noticed that a medical provider in a no-fault case, outside of New York, must show prima facie that the rendered services are reasonable and necessary.  It is noteworthy that in cases not involving no-fault coverage, which are governed solely by statute, e.g., Fam Ct. Act Sec. 413, the courts have in certain cases forced providers of services to make a threshold showing that the said services are reasonable and necessary.

The Appellate Term, Second Term, lead this charge in Mason v. Sondermann, 12 Misc.3d(A)(App. Term 2d. Dept. 2006), when it held the following:

“Since it is unclear from the record whether defendant Stephanie Sondermann was emancipated at the time the treatment at issue in this case was rendered, and whether the services rendered to her were reasonable and necessary a new trial is required.”

Similarly, the Appellate Division in Mary Imogne Bassett Hosp. v. Dahlberg, 229 AD2d 78 (3d Dept. 2006) held: “In our view an absolute statutory obligation pursuant to Family Court Act Section 413 attaches to a parent of a child under the age of 21 for the child’s care, maintenance and education; the obligation also includes payment of reasonable medical expenses”

In another appellate case, the Appellate Term, First Department in Pediatric Urology Assoc. P.C. v. Becher, 22 Misc.3d 130(A)(App. Term 1st Dept. 2009), held the following: “Appellant was obligated to pay the reasonable value of the medical services undisputedly rendered to his nine-year-old daughter, and this even accepting that the services were rendered at the request of his former wife.”

Finally, in recently decided case entitled Mount Vernon Hosp. v Nasibu, 2009 NY Slip Op 08591 (2d Dept. 2009), which spurred the thought behind this post, the Appellate Division observed the following: “The parent of an unemancipated child under the age of 21 has an absolute duty to pay the reasonable expenses of medical care required by the child.”

I just find it anomalous that a medical provider litigating against a child’s parent for rendered services has more to prove (Fam Ct. Act Section 413) than the same medical provider who litigates against an insurance carrier seeking no fault benefits for similarly rendered services  (Ins. Law 5106[a]).

The showdown we have been waiting for

Andrew Carothers, M.D., P.C. v Geico Indemnity Company, 2009 NY Slip Op 85909(U)(2d Dept. 2009)

The Appellate Division, on October 15, 2009, granted Plaintiff Andrew Carothers, P.C., leave to appeal the adverse decision of the Appellate Term, Second Department, which reversed the order of the Civil Court, Kings County, and held that Plaintiff failed to establish its prima facie case at a plenary trial.

If you recall, the Carothers case, the following was stated:

“The witness testified that plaintiff’s no-fault claim forms were prepared by plaintiff and transmitted electronically to AHCS to be printed and mailed to defendant. He further testified that the remaining subject documents were forwarded by plaintiff to AHCS. Even assuming that the witness was familiar with plaintiff’s business practices and proceduresand that, as an employee of plaintiff’s billing company, the witness would be competent to testify about such practices and procedures he still failed to establish, by laying the requisite foundation that the documents were plaintiff’s business records and, therefore, admissible in court pursuant to the business records exception to the rule against hearsay.  Upon reconsideration of this court’s decision in Pine Hollow Med., P.C. v. Progressive Cas. Ins. Co., 13 Misc.3d 131(A), 2006 WL 2829824, 2006 N.Y. Slip Op. 51870(U) [App. Term, 2d & 11th Jud. Dists. 2006], we conclude that the law was misapplied to the facts presented in that case. Accordingly, to the extent that it is not in accord with this decision, it should no longer be followed.

In light of plaintiff’s failure to establish the admissibility of its evidence, including its claim forms, plaintiff did not establish a prima facie case Even under the standard set forth in Pine Hollow Med., P.C., 13 Misc.3d 131(A), 2006 N.Y. Slip Op. 51870(U), the witness’ testimony was not sufficient to lay the proper foundation for the records plaintiff sought to introduce into evidence because AHCS did not incorporate plaintiff’s records into its own records, but merely received, printed and mailed them. Accordingly, defendant was entitled to judgment dismissing the complaint.”  (internal citations omitted)

I believe that this case is going to spell the end of Dan Medical, which requires that a business record foundation (CPLR § 4518[a]) be laid for the entry of the bills into evidence in order to satisfy a provider’s prima facie.  For those who believe that Art of Healing Medicine, P.C. v. Travelers Home and Marine Ins. Co., 55 AD3d 644 (2d Dept. 2008)(upholding the business record foundation model to satisfy a prima facie case) is dispositive, I think one should evaluate New York Presb. Hosp. v. New York Cent. Mut. Fire Ins. Co., 31 AD3d 403 (2d Dept. 2006)(finding that a signed assignment of benefits is part of a prima facie case), and how the Appellate Division,immediately moved away from this model, eventually leading in the Court of Appeals holding that a signed assignment of benefits is nor part of a prima facie case. Hospital for Joint Diseases v. Travelers Prop. Cas. Co.,  NY3d 312 (2008)