Opinion
No. 2022-50690 Index No. CV-711172-18/QU
07-21-2022
Advanced Recovery Equipment & Supplies Assignee of Laporte, Plaintiff(s), v. Travelers Insurance Company, Defendant(s).
Plaintiff's Counsel: Lewin & Baglio Defendant's Counsel: Travelers Insurance Company
Unpublished Opinion
Plaintiff's Counsel: Lewin & Baglio
Defendant's Counsel: Travelers Insurance Company
Wendy Changyong Li, J.
I. Papers
The following papers were read on Defendant's motion for summary judgment dismissing Plaintiff's complaint and Plaintiff's cross-motion for summary judgment on its claim:
Papers/Numbered
Defendant's Notice of Motion and Support Affirmation dated October 1, 2019 (" Motion ") and electronically filed with the court on August 27, 2020. 1
Plaintiff's Notice of Cross-Motion and Affirmation in Opposition dated February 17, 2020 (" Cross-Motion ") and electronically filed with the court on June 30, 2020. 2
Defendant's Affirmation in Opposition to Cross Motion dated March 11, 2020 (" Opposition to Cross-Motion ") and electronically filed with the court on August 27, 2020. 3
II. Background
In a summons and complaint filed September 7, 2018, Plaintiff sued Defendant insurance company to recover $3,116.03 in unpaid first party No-Fault benefits for medical services provided to Plaintiff's assignor Laporte from February 4 to May 4, 2018, plus attorneys' fees and statutory interest (see Motion, Aff. of Granov, Ex. A). Defendant moved for summary judgment dismissing Plaintiff's complaint on the ground that Defendant timely paid Plaintiff's claim according to the applicable fee schedule (CPLR 3212[b]). Plaintiff cross-moved for summary judgment on its claim against Defendant. The motions were assigned to this Court for determination on March 16, 2022.
III. Discussion
Automobile insurers must provide $50,000.00 coverage for "basic economic loss" (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 N.Y.3d 22, 26 [2016]). Basic economic loss expenses are limited by Insurance Law § 5108 (Insurance Law § 5102[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 N.Y.3d at 27). Charges for basic economic loss "shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers' compensation board for industrial accidents, except where the insurer or arbitrator determines that unusual procedures or unique circumstances justify the excess charge" (Insurance Law § 5108[a]; Government Empls. Ins. Co. v Avanguard Med. Group, PLLC, 27 N.Y.3d at 27). No payment is due for services in excess of charges permitted by Insurance Law § 5108 (11 NYCRR 65-3.8[g][1][ii]; Excel Surgery Ctr., LLC v Metropolitan Prop. & Cas. Ins. Co., 65 Misc.3d 149 [A], 2019 NY Slip Op 51843[U] * 1 [App Term 2d Dept 2019]; Oleg's Acupuncture, P.C. v Hereford Ins. Co., 58 Misc.3d 151 [A], 2018 NY Slip Op 50095[U] *1 [App Term 2d Dept 2018]).
Insurers must pay or deny No-Fault benefit claims within thirty (30) "days of receipt of proof of the claim" (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d 498, 501 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 N.Y.3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 N.Y.3d 312, 317 [2007]; see Insurance Law § 5106[a]; 11 NYCRR § 65-3.8[c]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 N.Y.2d 274, 278 [1997]). Failure to establish timely denial of claim precludes insurer from offering evidence of its defense to non-payment (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 N.Y.3d at 506; Fair Price Med. Supply Corp. v. Travelers Indem. Co., 10 N.Y.3d at 563; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 N.Y.3d at 318; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 N.Y.2d at 281-82).
Defendant requested that the court take judicial notice of the various fee schedules. The party requesting judicial notice must furnish the court "sufficient information to enable it to comply with the request" (CPLR 4511[b]; see Ponnambalam v Sivaprakasapillai, 35 A.D.3d 571, 574 [2d Dept 2006]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 54 Misc.3d 142 [A], 2017 NY Slip Op 50207[U] *1 [App Term 2d Dept 2017]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc.3d 141 [A], 2011 NY Slip Op 52199[U] * 2 [App Term 2d Dept 2011]). Here, Defendant presented a copy of the fee schedules upon which its witness relied (see Motion, Granov Aff., Ex. D).
Although the court may take judicial notice of the fee schedules, they do not independently establish whether Plaintiff properly applied them in billing for the services provided (Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 A.D.3d 13, 20-22 [2d Dept 2009]; Acupuncture Healthcare Plaza I, P.C. v Metlife Auto & Home, 2017 NY Slip Op 50207 *1-2). Rather, interpretation of the applicable fee schedule must be supported by expert opinion evidence (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 55Misc.3d 147[A], 2017 NY Slip Op 50706[U] *1 [App Term 2d Dept 2017]; W.H.O. Acupuncture, P.C. v Progressive Preferred Ins. Co., 36 Misc.3d 133 [A], 2012 NY Slip Op 51335[U] *2 [App Term 2d Dept 2012]). To support its motion, Defendant relied on the affidavit of Marchitte, Defendant's Medical Appeals Analyst sworn September 24, 2019, in which she concluded that, based on the fee schedule, Plaintiff's bills for the medical equipment exceeded the applicable fee schedule (Motion, Granov Aff., Ex. E).
To qualify as an expert, a witness must possess skill, training, knowledge, and experience to allow an assumption of the reliability of the opinion rendered (Price v. New York City Hous. Auth., 92 N.Y.2d 553, 559 [1998]; Matott v. Ward, 48 N.Y.2d 455, 459 [1979]; DiLorenzo v. Zaso, 148 A.D.3d 1111, 1112-13 [2d Dept 2017]; Doviak v. Finkelstein & Partners, LLP, 137 A.D.3d 843, 847 [2d Dept 2016]). In her affidavit, Marchitte attested that her position as a Medical Appeals Analyst necessitated that she became familiar with specified billing codes. Since Marchitte did not identify how she became familiar with the billing codes whether through education, training or apprenticeship, she failed to specify her qualifications, which are necessary to establish that she was an expert (Chtchannikova v. City of New York, 174 A.D.3d 572, 573 [2d Dept 2019]; DiLorenzo v Zaso, 148 A.D.3d at 1115; Leicht v. City of NY Dept of Sanitation, 131 A.D.3d 515, 516 [2d Dept 2015]; Currie v Wilhouski, 93 A.D.3d 816, 817 [2d Dept 2012]). Since Defendant failed to support its motion with an expert affidavit to interpret the fee schedule, Defendant failed to meet its initial burden of demonstrating its entitlement to summary judgment reducing the amount in controversy (Gentle Acupuncture, P.C. v Tri-State Consumer Ins. Co., 2017 NY Slip Op 50706[U] *1; W.H.O. Acupunctrure, P.C. v Progressive Preferred Ins. Co., 2012 NY Slip Op 51335[U] *2, see Jaga Med. Servs., P.C. v American Tr. Ins. Co., 56 Misc.3d 134 [A], 2017 NY Slip Op 50954[U] *2 [App Term 2d Dept 2017]). Therefore, the court denies Defendant's Motion for summary judgment.
Regarding the Cross-Motion, it was Plaintiff's burden to show it submitted the statutory claim forms indicating the fact and amount of the loss sustained and "that payment of no-fault benefits [was] overdue" (NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 A.D.3d 1190, 1191 [2d Dept 2011]; Fair Price Med. Supply Corp. v ELRAC Inc., 12 Misc.3d 119, 120 [App Term 2d Dept 2006]). To support its Cross-Motion, Plaintiff essentially relied on Defendant's denial of claim forms which were sufficient to establish Defendant's receipt of Plaintiff's claim and nonpayment of that claim (see Lopes v Liberty Mut. Ins. Co., 24 Misc.3d 127 [A], 2009 NY Slip Op 51279[U] *2 [App Term 2d Dept 2009]). In our instant case, Defendant's denial of claim forms demonstrated partial payment of defendant's claims and timely denial of the remainder of the claims (see Motion, Granov Aff., Ex. F). Since Plaintiff failed to meet its initial burden of demonstrating entitlement to summary judgment on its claims against Defendant, the court denies Plaintiff's Cross-Motion for summary judgment.
IV. Order
Accordingly, it is
ORDERED that Defendant's Motion for summary judgment dismissing Plaintiff's complaint is denied, and it is further
ORDERED that Plaintiff's Cross-Motion for summary judgment on its claim against Defendant is denied.
This constitutes the Decision and Order of the court.