Interesting new regulation fee schedule discussion and an example of sloppiness?

Tyorkin v Garrison Prop. & Cas. Ins. Co., 2016 NY Slip Op 50846(U)(Civ. Ct. Kings Co. 2016)

(1) “In the case at bar, Defendant’s affiant, Raina Lira, a Claims Adjuster employed by Defendant, avers that Defendant, through its vendor, Auto Injury Solutions (AIS), mailed the [*2]Explanation of Reimbursement Form (EOR) to the medical provider. There is no indication that a NF-10 form was issued in this matter although Ms. Lira avers that in applicable instances, the Denial of Claim Form (NF-10) is sent. Further, there is no indication that the EOR form, which was the only document issued in response to Plaintiff’s claim, is a form or letter approved by the Department as so allowed by 11 NYCRR 65-3.8(c)(1). Thus, notwithstanding both parties’ arguments with regards to the substantive merits of the peer review defense, the Court finds that such defense is precluded by Defendant’s failure to issue a NF-10 Denial of Claim form.”

Here’s a silly question.  Was this is an out of state based policy?  Did anyone argue that out of state law applied?  The policy mandates arbitration?    Alrof, Bright Supply, bad affidavits?

(2)  “Likewise, in this instance, the Court finds that Defendant’s fee schedule defense is neither precluded by timeliness or its failure to issue a Denial of Claim form as the language of the statute strictly mandates that “no payment shall be due .under any circumstances” for medical service fees that exceed the fee schedule charges. 11 NYCRR 65-3.8(g). In other words, [*3]Plaintiff would only be entitled to the payment of the subject bill at the rates permissible and authorized in the state of New Jersey. The Court is unpersuaded by Defendant’s argument that payment for Plaintiff’s bill is outright prohibited simply because the billed amount is higher than permissible. The regulation only reduces payment to the amount authorized by the applicable fee schedule.”

This is an important statement as various arbitrators have taken the position that over-billing is tantamount to failure to provide proof of claim and nothing should be awarded.  While inartfully drafted, 65-3.8(g)(iii) sought to overturn Mercury v. Encare, which disallowed the insurance company to raise a fee schedule defense to grossly over-billed services.

(3)  “In Ms. Moreno’s affidavit, upon which she concludes that the proper amount of the bill would be $5,976.50, rather than the billed amount of $10,144.88, there is no further explanation as to what the sum comprises of. While the Court may consider an attorney affirmation in the explanation of fee schedule provisions and the Court may take judicial notice of the fee schedule (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 18 ), the attorney affirmation of Dianne Galluzzo neither explains Ms. Moreno’s analysis or explains allowable reductions. The Court cannot presume to be knowledgeable of fee schedule reductions that, on its face, cannot be specifically adduced, and will not make any findings of fact as to such reductions. As such, a triable issue of fact remains as to its fee schedule defense. Further, the Court notes that while Ms. Moreno’s analysis sufficiently raises a triable issue, her analysis alone is inarticulate and insufficient to be the basis of summary judgment.

Very sloppy.  There is no quality control over these cases.

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Legal Update (February 2026): Since this post’s publication in 2016, the fee schedule regulations under 11 NYCRR 65-3, including section 65-3.8 governing denial forms and reimbursement procedures, may have undergone amendments or clarifications. The Department of Financial Services has periodically updated fee schedule provisions and claim processing requirements over the past decade. Practitioners should verify current regulatory language and any recent interpretive guidance regarding EOR forms, NF-10 denial requirements, and fee schedule defense procedures.