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AMERICAN TRANSIT INSURANCE COMPANY v. VITAL MEDICAL OF FOREST HIL...

Docket 616857/2024, New York State, Nassau County, Supreme Court (Sept. 24, 2024)
Case TypeSpecial Proceedings - CPLR Article 75
Plaintiff AMERICAN TRANSIT INSURANCE COMPANY
Defendant VITAL MEDICAL OF FOREST HILLS A/A/O HINGINIO NUNEZ SEVERINO
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SUMMONS + COMPLAINT Summons and Complaint

Document AMERICAN TRANSIT INSURANCE COMPANY v. VITAL MEDICAL OF FOREST HILLS, 616857/2024, 1 (N.Y. Sup. Ct., Nassau County Sep. 24, 2024)
This proceeding is brought pursuant to CPLR § 7511, Insurance Law § 5106(c) and 11 NYCRR § 65-4.10 (h) (l) (ii) for a De Novo review of the above captioned matter.
Prior to the occurrence, which forms the basis of this dispute Hinginio Nunez Severino was allegedly injured and made a claim against a policy of insurance issued by Plaintiff, AMERICAN
Following the inception of the insurance policy, an accident occurred and Hinginio Nunez Severino allegedly sustained injuries.
The plaintiff denied the claim on the basis of the peer review report by Dr. Vito Loguidice dated February 13, 2023 concluding the right shoulder surgery performed by Dr. Tomasello and assisted by PA Fayzulaev was not medically necessary and/or causally related to the accident.
VINCENT F. GERBINO, Esq., an attorney admitted to practice in the Courts of the State of New York, affirms that the following statements are true under penalties of perjury:
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STIPULATION - DISCONTINUANCE (PRE RJI) Stipulation of Discontinuance

Document AMERICAN TRANSIT INSURANCE COMPANY v. VITAL MEDICAL OF FOREST HILLS, 616857/2024, 4 (N.Y. Sup. Ct., Nassau County Nov. 22, 2024)
This stipulation maybe filed with the Clerk of the Court without further notice.
This stipulation maybe signed in counterparts deemed original.
and a copy of the stipulation shall be Dated: 10/17/2024 By: Vincent F. erbi o)2sq.
lano & Aitken, LEP Bruno, Go bino, for Plaintiff7Petitioner Attorneys
445 Broad Hollow Road, Suite 420 Melville, NY11747 By: Boris Tadchiev.
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EXHIBIT(S) - B Exhibit B

Document AMERICAN TRANSIT INSURANCE COMPANY v. VITAL MEDICAL OF FOREST HILLS, 616857/2024, 3 (N.Y. Sup. Ct., Nassau County Sep. 24, 2024)
(3) The master arbitrator shall initially consider and determine whether the facts al- leged in the submitted documents set forth a ground for review pursuant to subdivision (a) of this section.
The review of this Arbitration Award is limited to the standards set forth in CPLR Article 75 and as further defined by the Court of Appeals in Matter of Petrofsky v. Allstate Insurance Company, 54 N.Y.2d 207 (1981).
The lower Arbitrator correctly noted that the Respondent/Appellant’s burden included the obligation to establish that the patient’s injuries were not caused or exacerbated by the un- derlying automobile accident.
With regard to the issue of the causal relationship between the patient’s injury and/or condi- tion and the underlying automobile accident the Supreme Court, Appellate Division, Second Department case of Mount Sinai Hospital v. Triboro Coach, Incorporated, 263 A.D.2d 11; 699 N.Y.S.2d 77 clearly stated that the Applicant need not, as part of its prima facie case separately demonstrate a causal relationship between the services rendered, the condition of the patient and the underlying automobile accident.
However, for all arbitration requests filed on or after April 5, 2002, if the benefits and interest awarded thereon is equal to or less than the re- spondent’s written offer during the conciliation process, then the attorney’s fee shall be based upon the provisions of 11 NYCRR 65-4.6(b).
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EXHIBIT(S) - A Exhibit A

Document AMERICAN TRANSIT INSURANCE COMPANY v. VITAL MEDICAL OF FOREST HILLS, 616857/2024, 2 (N.Y. Sup. Ct., Nassau County Sep. 24, 2024)
Dear Parties: The Tadchiev Law Firm, P.C. 299 Jericho Turnpike Floral Park, NY 11001 By: EMAIL American Transit Insurance Company One Metro Tech Center, 7th Fl.
Summary of Issues in Dispute In dispute is Applicant Vital Medical of Forest Hill's claim as the assignee of a 50-year-old male injured in a motor vehicle accident on February 7, 2020, for reimbursement in the sum of $6,622.64 for right shoulder surgery performed by its primary surgeon, Dr. Peter Tomasello, and its Physician's Assistant, Sadyk Fayzulayev, PA, on September 12, 2020 at All City Family Healthcare Center in Brooklyn, New York Dr. Tomasello recommended the right shoulder surgery after examining the Assignor on September 1, 2020.
Page 1/9 The Respondent denied the claim based upon a peer review report by Dr. Vito Loguidice dated February 13, 2023 concluding that the right shoulder surgery performed by Dr. Tomasello and assisted by PA Fayzulaev was not medically necessary and/or causally related to the accident.
Causation is presumed since "it would not be reasonable to insist that (an applicant) must prove as a threshold matter that (a) patient's condition was 'caused' by the Page 3/9 Mount Sinai Hospital v. Triboro Coach, 263 A.D.2d 11, 20, 699 automobile accident."
Furthermore, the MRI of the right shoulder performed on 02/22/20 indicated a labral tear; however, according to the radiology review of this study by Dr. Stavrakis, the noted findings were not causally related to the accident of record.
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