Another formulation of a prima facie case

Ah this is my case. I just got back from vacation so I don’t want to talk about this one yet. But suffice it to say that the App Term really out did itself here. It authored a vague wraithlike decision in order to get around a quandry that it dug itself. In fact the decision does not address the issues before the court but completely evades them. In doing so it does what you allude to J.T. It enunciates a new standard of what comprises a prima facie case. A timely denial alone defeats a prima facie case is what the Court is saying unless the denial is conclusory, vague or without merit. Well just because the timely denial says lack of medical necessity does not mean that the insurer does not have to submit evidence to support its defense on Motion for S.J. This decision is really the height of bias and deceit — disgusting. I will lay it out on Monday and you will see.

Ray, if it is any consolation to you, I did not understand this decision myself. I read it and said to myself, “what the hell is the Court saying. Even if an insurer timely denies a claim, it still has to prove it defense and it certainly does not go to the plaintiff’s prima facie case.

Mitch thanks for wording what I would have liked to say so precisely. I will get to this Monday. I still want to feel some good vibes from the vacation. But that is exactly it. In effect the Court is saying if the denial is timely and proper you cannot move for summary judgment against the insurer. The next step will be timely well worded denial equals no duty to pay. And that step is very close as compared to the langauge of the decision.

Thanks J.T. My worst nightmare. Knowing that cast of fine Quasi American miscreants my mind wanders to dark places when I think of your imagery — “manipulating my body …” Yuk. And God only knows what else they might be doing to my body. Oh no not me. I was supposed to get a colonoscopy years ago because of recurrent stress induced stomach problems. No one is knocking me out and molesting me. Not even a real doctor that I’ve know for years and trust.

Another little nugget in this decision is the inclusion of “proof of the fact” of the loss in addition to proof of submission of the bill, as part of the Plaintiff’s prima facie case. Does that mean a plaintiff has to demonstrate that the treatment was actually rendered as part of its PFC? I don’t know that would hold up under AD scrutiny, but that is what is suggested by this language.

Here is the case. I am providing it in outline form and only presenting the salient issues. For example the Defendant opposed our mailing but it was a pro forma opposition. We argued that the Denials were not placed in evidence via any exception to the hearsay rule — actually a good argument in the normal world but not in No Fault. Etc. We moved for S.J. We set forth a prima facie case as acknowledged by the decision that was affirmed by the App Term. Namely via Affidavit and business documents we demonstrated that the bills were submitted in a timely fashion and payment was not rendered within thirty days. We also demonstrated that the Peer Review Report of the Chiropractor was simply signed. Since a Chiro is not a medical doctor the Peer Review must be notarized to be admissible. We also demonstrated that the Peer Review Report was stamped/electronically signed. We did this convincingly by providing a multitude of other reports from Dr. Sohn that has the exact same electronic signature. Out of three denials for two bills we also demonstrated that one denial was late. Finally we argued that the late denial was defective because it simply asserted “defective bill.” The Defendant made but one real argument. The Defendant argued that the Plaintiff did not have a NYC Department of Consumer Affairs license. [They do and such was pled but we proceeded without it because we wanted to make a point on the law][Just like State Farm did in Mallela b/c having investigated the case as an ADA I know there was fraudulent billing] We countered below and on Appeal with this cite amongst other cites: “The Plaintiff need not plead nor prove licensing – nor possess a license – from the New York City Department of Consumer Affairs – Administrative Code Section 20-426(a) – because an insurance company is not a consumer. Midwood Medical Equipment & Supply, Inc. v. Auto One Insurance Company, 2008 NY Slip Op 51459U; 20 Misc.3d 133A (App Term 2nd Dep’t. 2nd & 11th Jud. Dist. July 8, 2008) (“In the case at bar, defendant is not a consumer but is the insurance company from which plaintiff is seeking to recover assigned first-party no-fault benefits. Accordingly, the court below improperly granted the defendant’s motion for summary judgment dismissing the complaint.”)” The Defendant provided an Insurance Department opinion letter dated August 1, 2003 — five years prior to the App Term case cited to above. The letter opined that a DME provider should have a license from the NYC Dept of Consumer Affairs in order to be reimbursed. I know from talking to my client and inquiring personally that the license requirements are as follows: pulse, signature and money fee. It is a fee generator. Check it out. The Court below held: “The only issue at the time of trial will be the issue of plaintiff having a valid license to issue the medical supplies provided.” The Court found that such a defense need not be preserved in a timely denial. The preliminary statement in the Plaintiff’s Brief said this — and only this: “The Plaintiff provider of durable medical equipment is not required to possess a license issued by the New York City Department of Consumer Affairs – Administrative Code Section 20-426(a).” The argument based upon the App Term’s own decision: “The Appellate Term Second Department’s decision in Midwood Medical Equipment was unequivocal. The Court in a unanimous decision held that CPLR 3015 (e) is inapplicable to suits wherein the Plaintiff is a provider of durable medical equipment and the Defendant an insurance company. The Court gave two reasons why the “court below improperly granted defendant’s motion for summary judgment” re: the issue of a license from the Department of Consumer Affairs. The second reason is the most important. First the Court stated: “Defendant’s contention that plaintiff was not licensed was purely conclusory as it was not based upon any factual evidence in the record.” As noted the Plaintiff’s complaint at Paragraph 8 alleges licensing. However the above point is rendered thoroughly moot by the remainder of the decision. Right after the Court states: “Defendant’s contention that plaintiff was not licensed was purely conclusory as it was not based upon any factual evidence in the record” the Appellate Term Second Department stated the following: “Further, CPLR 3015 (e) provides, in pertinent part: Where the plaintiff’s cause of action against a consumer arises from the plaintiff’s conduct of business which is required by state or local law to be licensed by the department of consumer of affairs of the city of New York … the complaint shall allege, as part of the cause of action, that the plaintiff is duly licensed and shall contain the name and number, if any, of such license and the governmental agency which issued such license … the failure of the plaintiff to comply with this subdivision (a) of the rule thirty-two hundred eleven of this chapter” (emphasis added). [Note the Court’s emphasis on the phrase “against a consumer”]” Here are the important next three sentences in the Court’s decision that follow the above quoted language: “CPLR 3015 (e) is only applicable to actions against a consumer (see Matter of Migdal Plumbing & Heating Corp. [Dakar Devs.], 232 A.D.2d 62, 662 N.Y.S.2d 106 [1997] In the case at bar, defendant is not a consumer but is an insurance company from which plaintiff is seeking to recover assigned first party no fault benefits. Accordingly, the court below improperly granted defendant’s motion for summary judgment dismissing the complaint. [Emphasis added]” Again the critical language is this: CPLR 3015 (e) is only applicable to actions against a consumer … defendant is not a consumer but is an insurance company from which plaintiff is seeking to recover assigned first party no fault benefits. As such the Appellate Term’s decision does not state that there is an issue of fact as to licensing from the Department of Consumer Affairs that must be tried. The Court unequivocally stated that under the facts in the case at bar licensing by the Department of Consumer Affairs is irrelevant because the “defendant is not a consumer but is an insurance company.” The above issue — the only issue preserved for appeal — was never addressed by the Court’s decision. The Appellate Term 2nd herein dubbed “The Runaway Court” was faced with the quandry of either going against an 8 year old insurance department opinion letter or reversing its own decision issued three years prior. In response the Court simply made up an excuse to avoid the quandry. In so doing the Court enunciated a rule so maniacally obtuse that it has rendered No Fault unconstitutional. According to the Court’s decision if an insurer issues a timely denial that sets forth a legal justification for denial in clear langauge a provider can never make out a prima facie case. Here it happened on S.J. But as the Court of Appeals has held numerous times a motion for summary judgment is a trial on paper. As such an insurance company can simply issue a properly worded timely denial and totally avoid payment. What do you call a law that strips the citizen of his/her common law right to sue. Forces you to buy a product by State Approved Insurance Companies and then gives insurance companies the right to not pay at their own whim. You call that unconstitutional. Of course we will move for leave to appeal and to reargue. But I would expect much much more.

Post Script: The same lower court (same Judge) in another identically situated case actually addressed the issue that the App Term evaded and reversed herself on motion to reargue finding that the provider did not have to plead nor prove DCA licensing. Also my criticism of the decision in no way reflects my opinion of the job performed by Defendant’s counsel. They submitted a well written brief. However the brief did not raise the prima facie issue — and certainly did not make the argument enunicated by the Court. Nor should it have been expected to given the absurdity of the decision.