Another verification again

Country-Wide did not win every claim in this 2013 appeal. Its verification proof supported premature dismissal of some claims, while defects in denial and fee-schedule proof left others for further proceedings. Jason’s original note questioned a possible code reduction; the opinion itself did not identify one.

Historical note (September 2026): Viviane Etienne’s 2013 decision must be read claim by claim. The 2015 Court of Appeals decision involving the same named parties states the later prima facie standard; the 2026 verification hub covers subsequent document-verification timing.

Last reviewed: September 2026.

Four branches, not one all-purpose defense

Viviane Etienne Medical Care v Country-Wide Insurance, 38 Misc 3d 139(A), was decided February 11, 2013. The provider appealed after its motion was denied and the insurer obtained dismissal. The appellate result separated the claims according to the evidence supporting each defense.

For the verification claims, the supervisor’s affidavit established timely initial and follow-up requests and missing materials. The provider did not demonstrate compliance before suit, so those claims were premature. Other claims were dismissed on supported, unrebutted IME evidence.

Two different proof failures prevented complete affirmance. The insurer’s affidavit did not establish a timely denial of one bill, and it did not conclusively establish its fee-schedule defense to another. The judgment was reversed to restore those claims for further proceedings. It was not a general finding that all billed fees were payable.

Jason Tenenbaum’s 2013 commentary

These questions and observations are preserved as contemporary commentary, not attributed to the court.

There was a discussion regarding the failure to establish as a matter of law the fee schedule defense. I suspect it was a code reduction that was not backed up with an expert affidavit. Juast Keycite Rogy Medical v. Mercury…

“I suspect” matters. Jason offered a possible explanation, not a description the court had confirmed. The opinion does not identify a disputed code reduction or announce that every fee-schedule defense needs a particular kind of expert. The historical observation should be read as a question about the record, not an additional holding.

Verification cannot do the work of a fee-schedule defense

A verification defense asks whether a claim was sufficiently supported for the payment period to run or for the action to proceed. A fee-schedule defense asks whether the amount sought exceeds the applicable allowance. A successful showing on one bill does not supply proof for another bill or another defense.

A useful review therefore maps each bill to the ground asserted, the relevant notices, and the evidence supporting that ground. If the motion combines multiple claims, check whether the witness actually addresses each one. The silence concerning one bill in this opinion had consequences that a general statement about office procedures did not cure.

The same approach helps separate a medical-necessity report from a reimbursement calculation. An opinion that treatment was unnecessary does not itself identify the applicable rate. A rate calculation does not establish that treatment lacked medical necessity.

The companion GEICO decision

The original note also linked Viviane Etienne Medical Care v GEICO General Insurance, 2013 NY Slip Op 50196(U), decided the same day. That decision likewise upheld some medical-necessity dismissals but rejected insufficient proof of improper billing or excess fee-schedule charges on other claims.

The companion is useful because the split result is explicit. Its discussion does not convert the fee-schedule issue in Country-Wide into a confirmed coding dispute. It reinforces the need to read the actual proof for each defense rather than import details from a similarly named case.

Both opinions concern old claims. Neither supplies a current reimbursement amount, current code assignment or instruction to apply an old fee schedule to a new service. Those questions require the applicable schedule and service details.

Do not confuse this case with the later Court of Appeals appeal

The 2013 Country-Wide opinion cited an earlier Appellate Term decision concerning the provider’s prima facie showing. The Court of Appeals’ 2015 Viviane Etienne decision, 25 NY3d 498, is therefore important when reading the old procedural language.

The later court required evidence of overdue benefits and admissible proof that statutory billing forms were mailed to and received by the insurer. It rejected the demand that a provider independently establish the truth of the underlying medical contents as business records for that initial showing.

That does not establish compliance with a supported verification demand in every case. It explains why an old prima facie discussion cannot simply be repeated as the current test. The All Boro note addresses the separate problem of an uncontroverted failure to respond.

Partial responses and the later regulatory setting

The verification portion of this February 2013 decision predates the April 2013 applicability provisions for the 120-day document-response rule. It should not be rewritten as a decision imposing that later deadline.

Today’s §§ 65-3.5(o) and 65-3.8(b)(3) include the written-reasonable-justification alternative and request-warning conditions. The 2026 Chapa update rejects a mandatory 150-day denial cutoff, not the need to establish the defense’s factual and regulatory basis.

Read the disposition against the individual claims. Country-Wide’s successful verification showing did not cure its separate fee-schedule proof failure.

Connect to the Encyclopedia

Start with the no-fault verification hub and 2026 Chapa update for the governing framework and case directory. Related case notes:

• Ambrister: an explained second-notice exhibit.
• Elmont Open MRI: a factual issue prevented judgment for either side.
• Compas: document requests separated from missed examinations.
• All Boro: unpaid versus overdue on a search of the record.
• Doctor Goldshteyn: partial production and the objection question.

For review of a particular no-fault verification dispute, request a Free Case Review. Keep the requests, responses and relevant claim dates available for that review.