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The Rogak Report: 01 June 2006 ** No Fault - Summary Judgment **

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  • Lawrence Rogak
    Message 1 of 1 , May 31, 2006

      Vinings Spinal Diagnostic a/a/o Yvette Jenkins v Travelers Prop. Cas.
      Ins. Co., 2006 NY Slip Op 50999(U) (Nassau District Court) (Marber,
      j). Index no. 13569/05

      This action was for unpaid bills for medical services rendered to its
      assignor on December 8, 2004 and submitted to defendant no-fault
      carrier in the amount of $1,934.10. Defendant acknowledged receipt of
      plaintiff's bill on December 30, 2004 and issued its denial dated
      January 10, 2005 for the stated reason, "No Fault benefits for the
      above named provider are denied because the provider failed to
      substantiate the necessity for the medical services rendered. Please
      see attached report on Edward Weiland on 1/5/05 of which this denial
      is based."

      On October 31, 2005, the parties entered into a stipulation, which
      was not "so ordered" by the court, wherein it was agreed that
      defendant would produce all outstanding discovery on or before 60
      days of the date of the stipulation, which states: "Failure by
      defendant to do so will result in defendant being precluded from
      offering such' evidence at the time of trial." Defendant failed to
      respond within said 60 days and plaintiff moved for summary judgment.

      Citing the Court of Appeals in In re Petition of New York L.&
      W.R.Co., 98 NY 447, 453 (1885), the Court noted that "Parties by
      their stipulations may in many ways make the law for any legal
      proceeding to which they are parties, which not only binds them, but
      which the courts are bound to enforce. They may stipulate away
      statutory, and even constitutional rights. They may stipulate for
      shorter limitations of time for bringing actions for the breach of
      contracts than are prescribed by the statutes, such limitations being
      frequently found in insurance policies. They may stipulate that the
      decision of a court shall be final, and thus waive the right of
      appeal; and all such stipulations not unreasonable, not against good
      morals, or sound public policy, have been and will be enforced....
      The stipulation in this case is not against good morals or sound
      public policy, and therefore, will be enforced by this Court."

      "Defendant has responded to the within motion, but has failed to
      provide any of the demanded discovery. Its opposition relates to
      timely denial of the claims based on a peer review. An affirmed copy
      of the peer review report of Edward Weiland, M.D. is provided with
      defendant's opposition, together with an affidavit of Phyllis
      Faraguna, a claims representative for defendant and a person with
      personal knowledge of the preparation and mailing of the denial of
      claims. Plaintiff's attorney, in her Reply affirmation, asserts that
      Ms. Faraguna's affidavit is improper and insufficient as she is not
      the individual handling this claim and does not state the source of
      her 'personal knowledge' with regard to this claim. The Court has
      reviewed the affidavit and concludes that it contains sufficient
      factual information describing how defendant's regular office
      practices and procedures for mailing denials are geared as to ensure
      the likelihood that the denial of claim is always properly addressed
      and mailed. Further, there is no sworn statement from plaintiff that
      the denial of claim was never received, and in fact, annexes to its
      moving papers a copy of Dr. Weiland's report which was attached to
      defendant's denial of claim form."

      "...a showing on mailing insufficient to support granting a party's
      motion for summary judgment might, nonetheless, be sufficient to
      warrant denial of the other party's summary judgment motion."

      "While plaintiff has established by proof that it submitted to
      defendant claim forms, setting forth the fact and the amount of the
      loss sustained, it has failed to prove that payment of no-fault
      benefits was overdue, and therefore, has not established a prima
      facie case, sufficient to grant it summary judgment."

      "A review of the documents exchanged between the parties as indicated
      in the moving papers before the Court reveal that there is sufficient
      documentation already in the parties' possession to enable a trial to
      go forward without the precluded evidence covered in plaintiff's
      Notice for Discovery and Inspection."

      "Accordingly, that portion of plaintiff's motion seeking an order
      precluding defendant from offering any evidence is granted only with
      regard to information demanded in its discovery notices not
      previously [provided] by defendant, or already in plaintiff's

      Comment: Very interesting! Although Travelers violated the discovery
      stipulation, plaintiff was not entitled to summary judgment because
      the violation did not amount to the establishment of plaintiff's
      prima facie case. And the preclusion order against Travelers applies
      only to such items that plaintiff does not already have. In no-fault
      litigation, each side usually has all or nearly all of the items
      which they are demanding from the other side. The main reason for
      demanding them in discovery is to aid in their admission into
      evidence -- and sometimes to make the other side "work." The Court's
      decision here tacitly acknowledges this fact.

      Larry Rogak
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