Benson Med., P.C. v Progressive Northeastern Ins. Co.

[*1] Benson Med., P.C. v Progressive Northeastern Ins. Co. 2006 NY Slip Op 51427(U) [12 Misc 3d 144(A)] Decided on July 17, 2006 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 17, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., GOLIA and RIOS, JJ
2005-1206 K C. NO. 2005-1206 K C

BENSON MEDICAL, P.C., a/a/o ERNESTO MEDINA, Respondent,

against

PROGRESSIVE NORTHEASTERN INSURANCE COMPANY, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered June 28, 2005. The order granted plaintiff's motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,941.01.

Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42; as so modified, affirmed without costs.
In this action to recover assigned first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment in the sum of $3,012.49, the portion of the claims for which defendant refused payment. The court awarded plaintiff partial summary judgment in the principal sum of $2,941.01.

Plaintiff established its prima facie entitlement to summary judgment as to the disputed amounts in that it proved it submitted claims, setting forth the fact and the amounts of the losses sustained, and that payment of a portion of the claims was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant does not dispute that the denial of the initial claim was untimely on its face, and contrary to defendant's assertions below and on appeal, an untimely denial precludes the defenses set forth therein, all of which were based on the application of the fee schedules to the specific services provided (New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002] [defense based on claimant's alleged use of an incorrect billing code [*2]precluded by an untimely denial]; Rigid Med. of Flatbush, P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 139[A], 2006 NY Slip Op 50582[U] [App Term, 2d & 11th Jud Dists] [defense based on "nonconformity with the Worker's Compensation fee schedules" precluded]; S&M Supply Inc. v Progressive Ins. Co., 8 Misc 3d 138[A], 2005 NY Slip Op 51312[U] [App Term, 2d & 11th Jud Dists] [defense, "in effect, of excessive charges" precluded]). Defendant may not avoid the preclusion sanction by casting billing code issues as matters of "coverage," whether as exceeding the compensation allowed for a given treatment or the maximum allowable compensation per diem, or that the schedules do not compensate for treatments not approved as medically "useful" for the purposes alleged. Issues of medically unnecessary or excessive treatment "[do] not ordinarily implicate a coverage matter" (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), and fee schedule disputes are subject to the preclusion sanction. Thus, the court properly awarded plaintiff summary judgment on the first set of claims in the amount of $1,397.06.

With regard to the remaining two sets of claims, which alleged underpayments in the amounts of $1,062.67 and $481.28, the denial forms, which were timely, set forth in detail the specific grounds for the denials of part or all of the itemized claims, and state the bases thereof with the requisite specificity to satisfy the requirements of an effective denial. However, as to the claims marked with codes EX022 and EX028 on the second set of claims, and X322 on the third set of claims, denying specific claims with the explanation that the necessity of the medical services provided was not substantiated by the documents submitted or were supported by no documentation at all, said denials are ineffective inasmuch as properly submitted proofs of claim establish the medical necessity thereof prima facie (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and if an insurer requires further documentation in relation thereto, the remedy is the verification protocols. Thus, said denials are factually insufficient, conclusory and vague (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43 [App Term, 2d & 11th Jud Dists 2004]) in that they failed to set forth with the requisite particularity the factual basis and medical rationale for the denial (Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U], supra), and the defense is unavailing notwithstanding the timely denials.

In view of the foregoing, defendant's denials were effective to the extent of $146.03 of the $1,062.67 balance due on the second set of claims, and $199.56 of the balance due on the third set of claims. Accordingly, plaintiff's motion should have been granted to the extent of awarding it partial summary judgment in the principal sum of $2,595.42.

We have considered defendant's remaining contentions and find them without merit.

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

I am constrained to agree with the ultimate disposition in the decision reached by the majority. I, however, wish to note that I do not agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 17, 2006