No-Fault Denial Does Not Have to Attach Copy of Fee Schedule

Saturday, March 10, 2007 | 0

By Larry Rogak

Stanley Liebowitz, M.D. P.C. a/a/o Marion Golden v. American Tr. Ins. Co., 2007 NYSlipOp 50372(U) (App. Term, 2d Dept)

Defendant-insured appealed from an order of the Civil Court, Queens County (Gerald Dunbar, J.) which granted plaintiff's unopposed cross motion for summary judgment, awarded plaintiff the principal sum of $12,125.52. The appeal was dismissed. "Since defendant failed to submit written opposition to plaintiff's cross motion seeking summary judgment, that branch of the order which granted plaintiff's cross motion for summary judgment was entered on default and defendant is not aggrieved thereby."

However, Justice Golia, in a concurring opinion, wrote: "I, nevertheless, wish to address a misconception of the law in the decision and order of the lower court... The lower court initially held that plaintiff proved its prima facie case by means of establishing the timely receipt of the claims by submission of the defendant's NF-10 denial forms."

"That court then addressed the sufficiency of the NF-10 denial form and found that the 'NF-10 is not specific and requires one to consider other documents not included.' Inasmuch as the NF-10 denial specifically stated that the fees charged were in 'excess of the no- fault schedule,' it would seem to indicate that the 'other documents' to which the lower court refers, is the no-fault fee schedule which allegedly was not attached to the defendant's NF-10."

"The question then presented is whether or not the failure to attach a copy of the no-fault fee schedule permits a court to grant a money judgment allegedly in excess of the amount permitted by Insurance Department no-fault regulations. I believe that it does not. In support, I look to CPLR 4511 (a) which requires that '[e]very court shall take judicial notice without request . . . of the official compilation of codes, rules and regulations of the state . . .' ... These of course, include the regulations of the New York State Insurance Department."

"Clearly, the lower court had no alternative but to take judicial notice of the Insurance Department regulations. Those regulations require that medical procedures are to be billed at the 'workers' compensation' rate (see Insurance Law