TAM Med. Supply Corp. v Travelers Ins. Co.

In this no-fault suit, the Appellate Term holds that where the insurer’s defense is that the plaintiff failed to respond to verification requests, the burden of proof at trial is on the insurer to show that the verification remains outstanding.—LNR

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to provide verification which defendant had requested. Plaintiff opposed the motion and annexed its verification responses to its opposition papers. Plaintiff appeals from so much of the order of the Civil Court entered September 29, 2014 as declined to make a finding, pursuant to CPLR 3212 (g), that plaintiff had timely submitted its bills to defendant and stated, “At trial [plaintiff] has the burden to prove its prima facie case and whether it fully complied with [defendant’s] verification requests.”

Contrary to plaintiff’s assertion, the Civil Court properly stated that plaintiff bears the burden at trial of proving its prima facie case. However, inasmuch as it is a defendant’s burden at trial to show that it has a meritorious defense and that such a defense is not precluded, the Civil Court improperly determined that, at trial, plaintiff must prove “whether it fully complied with [defendant’s] verification requests.”

Accordingly, the order, insofar as appealed from, is modified by striking the provision therein that, at trial, plaintiff has the burden to prove “whether it fully complied with [defendant’s] verification requests.”

2018 NY Slip Op 50315(U)
Decided on March 9, 2018
Appellate Term, Second Department

Even Without a Good Denial, Plaintiff Cannot Collect More Than Fee Schedule Amount

Oleg’s Acupuncture, P.C. v Hereford Ins. Co.

The New York PIP regulations, as amended on 01 April 2013, do not permit medical providers to charge more than the amounts set forth in the Workers Compensation Fee Schedule, even if the insurer fails to timely or properly deny the claim.  In this suit, the insurer did not issue a timely denial but paid the bills at the correct fee schedule amount.  Civil Court granted judgment to plaintiff for the excessive fees.  The Appellate Term reversed, and granted summary judgment to the insurer, holding that it had established what the correct fee schedule was, and paid that amount. — LNR

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.). The judgment, entered pursuant to the January 27, 2016 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,103.32.  ORDERED that the judgment is reversed, with $30 costs, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff seeks the unpaid balance of two claims for services that plaintiff rendered from May 7, 2014 through July 16, 2014. Plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff seeks to recover amounts which are in excess of the amounts permitted by the workers’ compensation fee schedule. Defendant supported its cross motion with an affidavit by its certified medical coder and biller, which affidavit was sufficient to establish, prima facie, that defendant had fully paid the claims in accordance with the fee schedule. In opposition, plaintiff failed to raise a triable issue of fact, as plaintiff submitted only an affirmation by its counsel, who did not establish that she possessed personal knowledge of the facts. In an order entered January 27, 2016, the Civil Court granted plaintiff’s motion, and denied defendant’s cross motion on the ground that defendant was precluded from interposing its defense because defendant had failed to timely deny plaintiff’s claims.

As defendant argues, 11 NYCRR 65-3.8 (g) (1) (ii); (2) provides that, effective April 1, 2013, “no payment shall be due for claimed medical services under any circumstances . . . for those claimed medical service fees that exceed the charges permissible pursuant to Insurance Law sections 5108 (a) and (b) and the regulations promulgated thereunder for services rendered by medical providers.” Thus, defendant was not required to establish that it had timely denied the claims in order to preserve its fee schedule defense, as the services at issue had been provided between May 7, 2014 and July 16, 2014 (see 11 NYCRR 65-3.8 [g] [1] [ii]; [2]).

Accordingly, the judgment is reversed, the order entered January 27, 2016 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

2018 NY Slip Op 50095(U)
Decided on January 19, 2018
Appellate Term, Second Department