Brooklyn, NY
Appeals Lawyer at Brooklyn, NY
Practice Areas: Appeals, Litigation
OUTCOME: reversed
Appellate Term found the insurance company affidavit to be wholly insufficient to show that the codes billed were outside the scope of the client provider’s specialty
OUTCOME: affirmed
Appellate Term denied defendant insurance company leave to reargue the Term's prior decision finding the insurance company's motion insufficient and denying its motion for summary judgment.
OUTCOME: Reversed.
Lower court granted summary judgment against the client. We appealed and judgment was reversed.
OUTCOME: Reversed
Summary judgment as against the client was reversed.
OUTCOME: Affirmed
Appellate Term affirmed the denial of the summary judgment motion against the client, searched the record, and granted summary judgment to the client.
OUTCOME: Affirmed in part.
Appellate term affirmed in part and reversed in part decision granting summary judgment to client.
OUTCOME: Reversed
The lower court granted the defendant's motion and dismissed the client's case. The Appellate term reversed. "[T]he peer review reports were affirmed by a psychologist, which is not permissible pur ... suant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public's stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b)."
OUTCOME: Affirmed
Represented the Respondent. Lower court granted Respondent's cross-motion for summary judgment. MVAIC appealed and the Appellate Term affirmed.
OUTCOME: Defendant's motion was denied.
Defendant attempted to back out of a stipulation of settlement years after the stipulation was signed and after defendant issued payment on most of the stipulated terms.
OUTCOME: Denial of defendant's SJ motion affirmed
To be clear, while I argued this case before the Appellate Term, I did not write the underlying brief. My argument was that Summary Judgment was properly denied, in any event, because Defendant fail ... ed to prove the actual no-show which was central to their no-show defense. That issue was not briefed by either side, because it wasn't relevant at the time considering the Fogel II decision had not come out yet. As plaintiff's we had the law on our side at the time. It's particularly interesting because, the decision appealed from had nothing to do with whether or not defendant could prove a no-show Here is the actual decision: Order affirmed without costs. In this action to recover first-party no-fault benefits for health care services rendered by plaintiff to its assignor, defendant insurer moved for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for independent medical examinations (IMEs) which had been scheduled prior to defendant's receipt of the claim forms. In support of the motion, it submitted, inter alia, copies of plaintiff's three proofs of claim, copies of its claim denial forms, an affidavit of its no-fault claims examiner (which was sufficient to establish both defendant's receipt of the claims and the mailing of the claim denials) and an affidavit of an employee of Alternative Consulting and Examinations, the company which scheduled the IMEs (which was sufficient to establish mailing of the IME scheduling letters to the assignor). The court denied defendant's motion for summary judgment, finding that there was a triable issue of fact as to medical necessity, and this appeal ensued. In Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (___ AD3d ___, 2006 NY Slip Op 09604 [2d Dept, Dec. 19, 2006]), the Appellate Division, Second Department, held that when an insurer moves for summary judgment to dismiss an action based upon an assignor's failure to appear for IMEs which were requested prior to the submission of the claim forms, it must "establish, prima facie, that it mailed the notices of the IMEs . . . and that . . . [plaintiff's assignor] failed to appear for the IMEs." In that case, the insurer failed to meet its burden of proof in admissible form because it submitted no evidence from anyone with personal [*2]knowledge of the mailings or of the nonappearances. While defendant herein established proper mailing of the IME requests, it did not submit evidence in admissible form from anyone with personal knowledge of the nonappearances. Since defendant failed to meet its burden, its motion for summary judgment was properly denied. Rudolph, P.J., McCabe and Lippman, JJ., concur. Decision Date: February 14, 2007
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