May 26, 2004

A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-v-n-y-cent-mut-fire-ins-co-2004-ny-slip-op-50507u/

Court: Appellate Term, Second Department
Decided: May 26, 2004
Citation: 2004 NY Slip Op 50507(U)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Distinguished in 2, contrasted (cf., but see) in 2 and followed in 22 later decisions (see Cited by)
Issues: Medical necessity Provider's prima facie case
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions · Proof of mailing (see the maps)

Cite as

A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co., 2004 NY Slip Op 50507(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2004)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial. The providers established their prima facie entitlement through complete proofs of claim, and the insurer's denials acknowledged receipt and established submission. Although the factually specific medical reports sufficed at the claim stage, the insurer furnished no admissible medical evidence, such as an affirmed report, to raise a triable issue concerning the necessity of the services. The Appellate Term, Second Department, affirmed the judgment entered on the grant of summary judgment to the providers for the claims at issue on appeal.

Reported in New York Official Reports at A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))

[*1]

A.B. Med. Servs. v N.Y. Cent. Mut. Fire Ins. Co.

2004 NY Slip Op 50507(U)

Decided on May 26, 2004

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2004

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS

PRESENT: PESCE, P.J., GOLIA and RIOS, JJ.
NO. 2003-690 K C

A.B. MEDICAL SERVICES, PLLC D.A.V. CHIROPRACTIC, P.C. DANIEL KIM ACUPUNCTURE, P.C. ROYALTON CHIROPRACTIC, P.C. A/A/O IRINA GERMAN, Respondents,
against
NEW YORK CENTRAL MUTUAL FIRE INSURANCE COMPANY, Appellant.

Appeal by defendant from so much of an order of the Civil Court, Kings County (P. Sweeney, J.), entered January 14, 2003, as granted plaintiffs’ motion for summary judgment, deemed an appeal from the judgment, entered pursuant to said order on March 28, 2003, awarding plaintiff the sum of $6,732.10 (see Neuman v Otto, 114 AD2d 791 [1985]).

Judgment unanimously affirmed without costs.

Plaintiffs commenced this action to recover $5,773.94 in first-party no-fault
benefits, as well as statutory interest and attorney’s fees, pursuant to Insurance Law §
5101 et seq. for medical services rendered to their assignor. Thereafter, plaintiffs moved for summary judgment. Defendant opposed the motion and by order entered January 14, 2003, the court below denied that part of the motion seeking summary judgment on the $1,440 claim and granted summary judgment on the $1,757.62 claim and claims amounting to $2,576.32. A judgment was subsequently entered on March 28, 2003.

A review of the record indicates that plaintiffs established their prima facie entitlement to summary judgment by showing that they submitted complete proofs of claims to defendant (see [*2]Amaze Med. Supply Inc. v Eagle Ins. Co., NYLJ, Dec. 29, 2003 [App Term, 2d & 11th Jud Dists]). The denials attached to plaintiffs’ moving papers which state when defendant received the claims, adequately establishes that plaintiffs sent the claims to defendant (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., NYLJ, Feb. 20, 2004 [App Term, 2d & 11th Jud Dists]). This case squarely addresses the issue of timely denials which was raised, in dicta, in our prior holding in Amaze. Although the timely denial containing the unaffirmed, but factually-specific, medical reports defendant submitted in the claim stage constituted a sufficient denial
thereof based on a defense of lack of medical necessity, in opposition to a motion for
summary judgment, defendant must, nonetheless, submit proof in admissible form to rebut plaintiff’s prima facie showing (see Amaze Med. Supply Inc. v Eagle Inc. Co., NYLJ, Dec. 29, 2003, supra). Herein, defendant failed to provide proof in admissible form, such as an affirmed medical report, to sufficiently raise a triable issue of fact as to the medical necessity of the services rendered so as to warrant the denial of plaintiffs’ motion for summary judgment. As we noted in Amaze, where the plaintiff relies solely on its proof of claim to establish a prima facie showing, without any additional submission of proof of medical necessity in admissible form, and, in opposition, the defendant provides proof in admissible form of the lack of medical necessity, summary judgment may, in appropriate circumstances, be awarded to the defendant unless the plaintiff comes forward with admissible proof in reply to create a triable issue of fact (see A.B.Med. Servs. PLLC v Lubermens Mut. Cas. Co., No. 2003-1050 K C, decided herewith).

We find that defendant’s remaining contentions lack merit. Accordingly, plaintiffs’ motion was properly granted and the judgment is affirmed.
Decision Date: May 26, 2004

Legal questions (3)

Questions of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Lack of medical necessity

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held that unaffirmed medical reports, though enough to support a timely denial, were not proof in admissible form and failed to raise a triable issue of medical necessity against the providers' motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Claimant's prima facie case on motions

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On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the providers established their prima facie case by showing submission of complete proofs of claim, the insurer's denials stating the dates of receipt sufficing to show the claims were sent.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The provider's or claimant's proof established mailing of its claim form, NF-2 or verification response (rules on the question, but another ground decided the case)

Held the insurer's denials, which stated when it received the claims, adequately established that the providers sent the claims, supporting the providers' prima facie case.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 106 (this one included) are in the same category.

Cited by (40)

A label shows how the later decision treated this one.

A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 24289) DistinguishedA provider's substantive challenge to an unsworn peer review permits the insurer to rely on that report in opposition to summary judgment.
MZ Dental, P.C. v Progressive Northeastern Ins. Co. (2004 NY Slip Op 24524) DistinguishedAn attorney's affirmation not signed by that attorney has no force or effect.
Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 51556(U)) Contrasted (cf., but see)The provider failed to establish claim submission because its mailing proof did not connect the claims to the certified mail receipt.
IVB Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51660(U)) Contrasted (cf., but see)The provider failed to prove submission of its claim, and its appeal from an unopposed discovery order was dismissed.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194) FollowedAn insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
Capio Med., P.C. v Progressive Cas. Ins. Co. (2005 NYSlipOp 50526(U)) FollowedThe insurer's EUO requests did not toll the denial period because it failed to prove an authorizing endorsement or timely requests.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032) FollowedAn insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
Fair Price Med. Supply Corp. v ELRAC Inc. (2006 NY Slip Op 26269) FollowedAn improper self-referral defense survives a late denial when a health care provider seeks benefits through an entity in which it has an interest.
A.B. Med. Servs., PLLC v State Farm Mut. Auto. Ins. Co. (2005 NY Slip Op 25089) FollowedA provider retains the burden of proving coverage after an insurer produces admissible evidence of a founded belief that a collision was staged.
King’s Med. Supply Inc. v Country-Wide Ins. Co. (2004 NY Slip Op 24394) FollowedA medical supplier need not prove documented cost as part of its prima facie no-fault case.

Show all 40 citing decisions

Similar decisions

A.B. Med. Servs., Pllc v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50550(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co. (2005 NY Slip Op 50114(U))An insurer cannot defeat summary judgment with a peer review citing insufficient information without showing it sought verification.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 50076(U))The insurer's affidavit and EUO evidence raised a triable coverage issue despite untimely denials of certain claims.
Avenue N Med., P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 52174(U))The insurer's timely denials and affirmed peer review raised a medical-necessity issue defeating the provider's summary judgment motion.
A.B. Med. Servs. PLLC v Farm Family Cas. Ins. Co. (2004 NY Slip Op 24346)A denial's timeliness is measured by its mailing date, not the date printed on the denial form.