Preview
FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019
NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
____________¬____________________________..-----X
AMERICAN TRANSIT INSURANCE COMPANY,
Index #: I56988/2019
Plaintiff, AFFIRMATION
-against- IN OPPOSITION TO
DEFENDANT'S MOTION
FOR SUMMARY
JUDGMENT
HEALTH PLUS SURGERY CENTER, LLC,
CITIMED SERVICES, PA and
BRADLEY WASSERMAN, MD PLLC
A/O JIAN-CHENG DANG,
Defendants.
--------------
--------------------------X
STATE OF NEW YORK ) .
) ss:
COUNTY OF NEW YORK )
Christopher E. O'Donnell, an attomey duly admitted to practice law before the courts of the
State of New York, affirms the follewing statements to be true and under penalty of perjury:
1. I am an attomey licensed to practice in the State of New York and a member of
the law firm of Short & Billy, P.C. attomeys for the Plaintiff, American Transit Insurance
"ATIC"
Company, hereinafter referred to as in this action. I submit this affirmation opposiñg
Defendant's motion for summary judgment pursuant to CPLR 3212 as there exist triable issues
of fact that must be resolved. In addition, Defendant is not legally entitled to summary judgment
in this matter.
2. This action was commancad by the filing of a Summons and Verified
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Complaint on July 17, 2019. On or about August 8, 2019, Defendants Health Plus Surgery
Center, LLC (hereinafter referred to as "Health Plus") and Bradley Wasserman, MD, PLLC
(hereinafter referred to as "Wasserman") filed an Answer to the Complaint. Annexed hereto as
Exhibit 1 is a copy of the Summons and Verified Complaint and the Answer of Defendants
Health Plus and Wasserman. On or about August 15, 2019, Defendant Citimed Services, PA
(hereinafter referred to as "Citimed") filed a Pre-Answer motion for summary judgment which
Plaintiff now opposes.
SUMMARY OF FACTS
3. The Defendants, Health Plus Surgery Center, LLC, Citimed Services, PA and
Bradley Wasserman, MD, PLLC provided services and supplies to the assignor Jian-Cheng Dang
on February 20, 2017, including and relating to an arthroscopic shoulder surgery.
4. The Defendants then each filed their claims in separate arbitration filings and
sought arbitration by the filing of Arbitration Requests with the American Arbitration
Association for payment of no-fault benefits from the Plaintiff. The Defendant Health Plus
Surgery Center, LLC sought arbitration in the amount of $30,443.77. The Defendant Citimed
Services, PA sought arbitration in the amount of $3,029.12. The Defeñdâñt Bradley Wasserman,
MD, PLLC sought arbitration in the amount of $20,016.49.
5. These filings were heard together and the rulings from the arbitrator were based
on the same set of facts. Each claim was denied based on the same peer review. All three
awards were in favor of the Defeñdañts based upon medical necessity. The Defendant Health
Plus Surgery Center, LLC was awarded $19,947.03. The Defendant Citimed Services, PA was
awarded $3,029.12. The Defêñdañt Bradley Wasserman, MD, PLLC was awarded $13,096.70.
See Exhibit 1 for arbitration awards.
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6. The Plaintiff sought review by a Master Arbitrator on these three awards. On
June 20, 2019, a master arbitrator rendered three awards affirming the respective lower
arbitration awards the total of which is over $5,000.00. The date of mailing of these awards to
the Plaintiff was June 24, 2019, while the Plaintiff received the awards, via electronic mail
transmittal from the American Arbitration Associatioñ on June 24, 2019. (Copies of the master
arbitration awards and the lower arbitration awards are annexed hereto as part of Exhibit 1).
7. The assignor was allegedly involved in an accident in New York on July 31,
2016. If no-fault benefits were applicable to the accident, the assignor would be an eligible
injured person under a New York policy of insurance issued by the Plaintiff providing personal
injury protection no-fault benefits pursuant to that insurãñce contract and the laws of New York
State.
8. The Defendants submitted claims to the Plaintiff for services for treatment
allegedly rendered to the assignor including services allegedly related to shoulder surgery.
9. There is a dispute between the parties whether the Plaintiff is required to pay the
Defendants no-fault benefits for health services.
10. The services that were provided were not mMically necessary. See Exhibit 2 for
peer review.
11. The alleged injuries treated and supplies provided by the Defendants were not
causally related to the accident at issue and therefore not covered under the no-fault statutes.
12. The Plaintiff timely and properly denied the bills allegedly submitted by the
Defendants on the groüñds that the services were not medically necessary, were not causally
related to the alleged accident and billed in violation of fee schedule. See Exhibit 3 for Affidavit
of Cheryl Glaze.
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13. The amounts the Defendants sought in arbitraticn were incorrect and in violation
Workers'
of the Compensatioñ Fee Schedule. As such, the Defendants did not submit a proper
proof of loss under the No-Fault Regulations to the Insurance Law and are not entitled to any
legal fees if they did prevail on their claims.
14. Nothiñg is owing or payable to the Defendants on the billings in qücstion in these
matters.
Dated: September 5, 209
New York, New York
Respectfully Submitted,
SHORT & BILLY, P.C.
Attorneys for Plaintiff
ALLSTATE INSURANCE COMPANY
By
Christopher E. O'Donnell, Esq.
217 Broadway, Suite 300
New York, NY 10007
(212) 732-3320
Our File #: 60376, 60377 and 60378
To: DRACHMAN KATZ LLP
Attorneys for Defendants
115-06 Myrtle Avenue
Richmond Hill, NY 11418
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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
---------------------------------- ---- -X
AMERICAN TRANSIT INSURANCE COMPANY Index #:156988/2019
Plaintiff,
-against-
HEALTH PLUS SURGERY CENTER, LLC,
CITIMED SERVICES, PA and
BRADLEY WASSERMAN, MD PLLC
A/O JIAN-CHENG DANG
Defendants.
------ ------------------------ -------------X
OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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Preview
FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ____________¬____________________________..-----X AMERICAN TRANSIT INSURANCE COMPANY, Index #: I56988/2019 Plaintiff, AFFIRMATION -against- IN OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT HEALTH PLUS SURGERY CENTER, LLC, CITIMED SERVICES, PA and BRADLEY WASSERMAN, MD PLLC A/O JIAN-CHENG DANG, Defendants. -------------- --------------------------X STATE OF NEW YORK ) . ) ss: COUNTY OF NEW YORK ) Christopher E. O'Donnell, an attomey duly admitted to practice law before the courts of the State of New York, affirms the follewing statements to be true and under penalty of perjury: 1. I am an attomey licensed to practice in the State of New York and a member of the law firm of Short & Billy, P.C. attomeys for the Plaintiff, American Transit Insurance "ATIC" Company, hereinafter referred to as in this action. I submit this affirmation opposiñg Defendant's motion for summary judgment pursuant to CPLR 3212 as there exist triable issues of fact that must be resolved. In addition, Defendant is not legally entitled to summary judgment in this matter. 2. This action was commancad by the filing of a Summons and Verified 1 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019 Complaint on July 17, 2019. On or about August 8, 2019, Defendants Health Plus Surgery Center, LLC (hereinafter referred to as "Health Plus") and Bradley Wasserman, MD, PLLC (hereinafter referred to as "Wasserman") filed an Answer to the Complaint. Annexed hereto as Exhibit 1 is a copy of the Summons and Verified Complaint and the Answer of Defendants Health Plus and Wasserman. On or about August 15, 2019, Defendant Citimed Services, PA (hereinafter referred to as "Citimed") filed a Pre-Answer motion for summary judgment which Plaintiff now opposes. SUMMARY OF FACTS 3. The Defendants, Health Plus Surgery Center, LLC, Citimed Services, PA and Bradley Wasserman, MD, PLLC provided services and supplies to the assignor Jian-Cheng Dang on February 20, 2017, including and relating to an arthroscopic shoulder surgery. 4. The Defendants then each filed their claims in separate arbitration filings and sought arbitration by the filing of Arbitration Requests with the American Arbitration Association for payment of no-fault benefits from the Plaintiff. The Defendant Health Plus Surgery Center, LLC sought arbitration in the amount of $30,443.77. The Defendant Citimed Services, PA sought arbitration in the amount of $3,029.12. The Defeñdâñt Bradley Wasserman, MD, PLLC sought arbitration in the amount of $20,016.49. 5. These filings were heard together and the rulings from the arbitrator were based on the same set of facts. Each claim was denied based on the same peer review. All three awards were in favor of the Defeñdañts based upon medical necessity. The Defendant Health Plus Surgery Center, LLC was awarded $19,947.03. The Defendant Citimed Services, PA was awarded $3,029.12. The Defêñdañt Bradley Wasserman, MD, PLLC was awarded $13,096.70. See Exhibit 1 for arbitration awards. 2 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019 6. The Plaintiff sought review by a Master Arbitrator on these three awards. On June 20, 2019, a master arbitrator rendered three awards affirming the respective lower arbitration awards the total of which is over $5,000.00. The date of mailing of these awards to the Plaintiff was June 24, 2019, while the Plaintiff received the awards, via electronic mail transmittal from the American Arbitration Associatioñ on June 24, 2019. (Copies of the master arbitration awards and the lower arbitration awards are annexed hereto as part of Exhibit 1). 7. The assignor was allegedly involved in an accident in New York on July 31, 2016. If no-fault benefits were applicable to the accident, the assignor would be an eligible injured person under a New York policy of insurance issued by the Plaintiff providing personal injury protection no-fault benefits pursuant to that insurãñce contract and the laws of New York State. 8. The Defendants submitted claims to the Plaintiff for services for treatment allegedly rendered to the assignor including services allegedly related to shoulder surgery. 9. There is a dispute between the parties whether the Plaintiff is required to pay the Defendants no-fault benefits for health services. 10. The services that were provided were not mMically necessary. See Exhibit 2 for peer review. 11. The alleged injuries treated and supplies provided by the Defendants were not causally related to the accident at issue and therefore not covered under the no-fault statutes. 12. The Plaintiff timely and properly denied the bills allegedly submitted by the Defendants on the groüñds that the services were not medically necessary, were not causally related to the alleged accident and billed in violation of fee schedule. See Exhibit 3 for Affidavit of Cheryl Glaze. 3 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019 13. The amounts the Defendants sought in arbitraticn were incorrect and in violation Workers' of the Compensatioñ Fee Schedule. As such, the Defendants did not submit a proper proof of loss under the No-Fault Regulations to the Insurance Law and are not entitled to any legal fees if they did prevail on their claims. 14. Nothiñg is owing or payable to the Defendants on the billings in qücstion in these matters. Dated: September 5, 209 New York, New York Respectfully Submitted, SHORT & BILLY, P.C. Attorneys for Plaintiff ALLSTATE INSURANCE COMPANY By Christopher E. O'Donnell, Esq. 217 Broadway, Suite 300 New York, NY 10007 (212) 732-3320 Our File #: 60376, 60377 and 60378 To: DRACHMAN KATZ LLP Attorneys for Defendants 115-06 Myrtle Avenue Richmond Hill, NY 11418 4 of 5 FILED: NEW YORK COUNTY CLERK 09/05/2019 03:18 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 11 RECEIVED NYSCEF: 09/05/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ---------------------------------- ---- -X AMERICAN TRANSIT INSURANCE COMPANY Index #:156988/2019 Plaintiff, -against- HEALTH PLUS SURGERY CENTER, LLC, CITIMED SERVICES, PA and BRADLEY WASSERMAN, MD PLLC A/O JIAN-CHENG DANG Defendants. ------ ------------------------ -------------X OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 5 of 5