PORT AUTHORITY POLICE, LAW ENFORCEMENT PARTNERS IMPOUND 30 VEHICLES, ISSUE OVER 500 SUMMONSES DURING JOINT TASK FORCE OPERATION THIS WEEK AT OUTERBRIDGE CROSSING FOCUSED ON PERSISTENT TOLL VIOLATORS AND FRAUDULENT

Firm Successful in Arguing for Reversal of Summary Judgment Decision

The Firm was successful in arguing that the Supreme Court of Nassau County erred in awarding summary judgment to a defendant in a claim for no-fault benefits. The case was argued in the Appellate Division Second Department after the Supreme Court of Nassau County confirmed an arbitrator’s award of $11,352.46 in favor of the defendant.

The case began after a February 6, 2013 motor vehicle accident which allegedly resulted in the Claimant, Christopher Krull, undergoing a spinal fusion surgery. The surgery was performed by Buffalo Neurosurgery Group. The facility then submitted a claim to Allstate Insurance Company seeking reimbursement for the spinal procedure.

Gavel and Scales

Allstate denied the claim forcing the facility to bring the claim in arbitration. The arbitrator issued a decision whereby the facility was entitled to no-fault compensation in the principal sum of $11,352.46 plus interest and attorney’s fees. Allstate then appealed the award to a master arbitrator who affirmed the award.

In August of 2015, Allstate commenced an action pursuant to Insurance Law §5106(c) for a de novo determination of the facilities claims for no-fault insurance benefits. The arguments made by Allstate were that the surgery was not medically necessary as determined by their peer review doctor and that the amount awarded was not in accordance with the Workers’ Compensation Fee Schedule. Allstate then moved for summary judgment on the complaint. In December of 2016, the Supreme Court of Nassau County denied the motion. In review of the motion, the Supreme Court searched the record and discovered the award of the master arbitrator. In relying on the master arbitrator’s decision, the Court awarded summary judgment in favor of the facility. The plaintiff appealed.

On appeal, the Firm argued not only did the lower Court err on their determinations of medical necessity and fee schedule, but also, that the Court should not have reviewed the record of the master arbitrator in awarding summary judgment to the facility. On review, the Second Department found that the peer review doctor’s report fell short of meeting the burden of proving that the procedure was not medically necessary. However, the Court found that the plaintiff established its prima facie entitlement in that the benefits sought by the defendant were not in accordance with the Workers’ Compensation Fee Schedule. In that regard, the facility failed to raise a triable issue of fact. Therefore, the branch of Allstate’s motion for the proper reimbursement should have been granted. The Second Department further held that because an issue of fact was not raised, the lower Court should not have taken it upon themselves to review the record for the master arbitrator’s decision. Therefore, their full award for summary judgment in favor of the facility was improper.

The Second Department then modified the Order of the lower Court by (1) deleting the provision denying Allstate’s motion which was for summary judgment so far as the determination that the amount of no-fault benefits sought was not in accordance with the Workers’ Compensation Fee Schedule and instead granting that portion; and (2) deleting the provision whereby the lower Court searched the record and awarded summary judgment to the facility.

No-Fault Law: The Law Offices of Peter C. Merani Successful in Opposition and Cross-Motion for Summary Judgment

The Law Offices of Peter C. Merani were successful in defending carrier American Transit Insurance Company against motions for summary judgment and in cross-moving to obtain a judgment against the plaintiffs. The case involved services that were performed by two providers, NYU Langone Hospital Brooklyn and NYH Brooklyn-CHOB, following automobile accidents.

The first claim resulted from services provided to a Claimant, Luis Villa, following an automobile accident on June 2, 2018. The plaintiff moved for summary judgment in regards to the bills allegedly submitted in the amount of $14,343.30. In support of their motion, the plaintiff provided an affidavit of a biller and representative for the hospital stating the bills were maintained in the regular course of business and that they were submitted only 4 days after the services were provided.

Lawyer

The affidavit further stated that the Hospital received a “denial of claim” within 30 days from the submission of the bill. The denial was issued for two reasons: (1) because the carrier believed the Claimant was injured while on the job; and (2) because the injuries did not result out of the use and/or operation of the vehicle. In that case, Workers Compensation benefits would serve as an offset against first-party benefits payable under no-fault. According to the biller, the Workers’ Compensation Board had already determined there was no case. Therefore, they argued that the denial was improper.

In opposition, the firm argued that the denials were proper. The first argument was that the Workers’ Compensation coverage had not been determined yet. Had the Claimant been on the job at the time of the accident then Workers’ Compensation, and not, No-fault would be the outlet for reimbursement. They further argued that the injuries did not arise out of the use and/or operation of the vehicle because the accident occurred as the vehicle was parked and while the Claimant was checking his driver’s side tire. If that were the case, the American Transit Insurance policy would not cover the accident. The Court reviewed both arguments and found the Workers’ Compensation coverage to have been determined to not cover the claim. As to the second argument, the Court found there were questions of fact as to whether the accident occurred during the use and operation of the vehicle. Therefore, plaintiff’s motion and the cross-motion were denied.

The second and third claims were the result of services allegedly provided by NYH Brooklyn-CHOB to Claimant, Angel Gilmuniz on January 18th and 20th of 2017. Like in the claim by NYU Langone, NYH Brooklyn-CHOB moved for summary judgment and provided an affidavit of a biller in support of their motion. The biller affirmed that he maintained the bills in the regular course of business and that they were submitted to the carrier on February 5, 2018 and February 16, 2017 respectively. As for the bill for services on January 20, 2017, the plaintiff first argued that the defendant’s denial for the services was late. Unpredictably, they submitted a denial dated March 10, 2017 which stated the services were denied based on a peer review report and because the claimant was eligible for Workers’ Compensation. In addressing this argument, the Court recognized that the submission of a denial dated March 10, 2017, was clearly timely, and the February 5, 2018 mailing is not in line with a late submission.

Regardless, the plaintiff also argued that the denials for both services were improper. The denials for both bills were based on the Workers’ Compensation argument and based on a lack of medical necessity for the services. The plaintiff argued that the Workers’ Compensation does not apply. Moreover, the Plaintiff further submitted a rebuttal report to the defendant’s peer review report which opined that the services were medically necessary.

In opposition to this claim, the firm first argued that the claimant was in the course of his employment at the time of the accident, and that there has been no determination from the Workers’ Compensation Board. The firm annexed a copy of the Police Report as evidence that the accident occurred during the course of his employment. The Police Report shows that the claimant was the driver of a vehicle bearing taxi and limousine plates at the time of the accident. Additionally, the firm argued that the services were not medically necessary as per the peer review report.

In regards to the medical necessity argument, the Court found that the differing opinions of the expert witnesses provided a clear issue of fact as to the medical necessity of the services, and therefore, summary judgment was not proper. However, as for the Workers’ Compensation argument, the court found that the defendant showed potential merit to its claim that the claimant was acting in the course of his employment at the time of the accident. In relying on prior case law, the Court determined that a showing of potential merit to the Workers’ Compensation claim is sufficient to establish summary judgment in their favor. Therefore, the plaintiff’s motion for summary judgment was denied and the defendant’s cross-motion was granted in relation to the services allegedly provided to Angel Gilmuniz.

Full copy of the decision coming soon.