February 11, 2004

A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U))

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-cna-ins-co-2004-ny-slip-op-50061u/

Court: Appellate Term, First Department
Decided: February 11, 2004
Citation: 2004 NY Slip Op 50061(U)
Posture: Summary judgment
Outcome: Split result
Later treatment: Distinguished in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

A.b. Med. Servs. Pllc v Cna Ins. Co., 2004 NY Slip Op 50061(U) (App Term, 1st Dept 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.

The provider obtained summary judgment on a neurological-testing claim denied after 30 days, but peer reviews raised issues on the remaining claims. The Appellate Term, First Department, modified the order to grant judgment on that claim and remitted for assessment of interest and attorney fees, while affirming denial of summary judgment on the others. Under 11 NYCRR 65-3.8 (c), the late denial waived defenses concerning inadequate claim forms, including missing signatures, and medical necessity. For the remaining claims, the insurer's timely denials relied on peer review reports. Those reports were a proper means of asserting lack of medical necessity under 11 NYCRR 65-3.8 (b) (4) and supplied sufficient facts to raise a triable issue.

Reported in New York Official Reports at A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U))

[*1]

A.B. Med. Servs. v CNA Ins. Co.

2004 NY Slip Op 50061(U)

Decided on February 11, 2004

Appellate Term, First 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This opinion is uncorrected and will not be published in the Official Reports.

Decided on February 11, 2004

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM J. DAVIS
HON. MARTIN SCHOENFELD, Justices.
571135/02

A.B. MEDICAL SERVICES PLLC, G.A. PHYSICAL THERAPY P.C., a/s/o MIKHAIL SMOLYANSKIY, Plaintiff-Appellant,
against
CNA INSURANCE COMPANY, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court, New York County, entered January 25, 2002 (Debra A. James, J.) which denied its motion for summary judgment.

PER CURIAM:

Order entered January 25, 2002 (Debra A. James, J.) modified to grant plaintiff’s motion for summary judgment on its no-fault insurance claim relating to the April 24, 2000 medical services rendered to its assignor, Smolyanskiy, and to remit the matter to Civil Court for the assessment of appropriate attorney’s fees and interest with respect thereto; as modified, order affirmed, without costs.

The action seeks recovery of motor vehicle no-fault benefits in the form of medical expenses allegedly incurred by plaintiff’s assignors. Plaintiff demonstrated entitlement to summary judgment on its claim for neurological testing administered to its assignor, Smolyanskiy, on April 24, 2000, since the record shows that defendant received plaintiff’s no-fault claim relating to those services no later than June 23, 2000, and did not deny the claim until [*2]July 31, 2000. Having failed to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8[c]) within 30 days of receipt, defendant waived any defenses relating to the adequacy of plaintiff’s claim forms, including the alleged absence of necessary signatures (see, Mount Sinai Hosp. v Figuerdov, 263 AD2d 11, 17 [1999]) or the medical necessity of the services rendered (see, Central Gen. Hosp. v Chubb Group, 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zabloski, 257 AD2d 306, lv denied 93 NY2d 809 [1999]).

Summary judgment is unwarranted, however, on the remaining no-fault claims alleged in the complaint. Contrary to plaintiff’s contention, the peer review reports relied upon by defendant in timely denying the remaining claims were a proper vehicle to assert the defense of lack of medical necessity (11 NYCRR 65-3.8[b][4]) and set forth sufficient facts to raise a triable issue with respect to that defense (see, S+M Supply, Inc. v Allstate Ins. Co., 2003 WL 21960336, decided July 9, 2003 [App Term, 2d Dept]).

This constitutes the decision and order of the court.

Legal questions

A question 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

Open the full map

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

This decision: Insurer's proof was enough to defeat the provider's motion but not to win

Denied the provider summary judgment on the timely denied claims because the insurer's peer review reports were a proper basis for the defense and set forth sufficient facts to raise a triable issue of medical necessity.

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

Of the 72 decisions on this question in the First Department courts and the Court of Appeals, 7 (this one included) are in the same category.

Cited by

A label shows how the later decision treated this one.

T & G Med. Supplies, Inc. v National Grange Mut. Ins. Co. (2005 NY Slip Op 25357) DistinguishedThe provider lacked standing because its assignment form contained only the alleged assignor's signature and omitted essential information.
Inwood Hill Med. v Allstate Ins. Co. (2004 NY Slip Op 50565(U))The insurer's EUO evidence failed to raise a triable issue that the injuries did not arise from an insured incident.
Precision Diagnostic Imaging, P.C. v Travelers Ins. Co. (2005 NY Slip Op 25180)A radiology provider's reliance on referrals does not exempt its services from the medical-necessity requirement for no-fault reimbursement.

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. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(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 Tr. Ins. Co. (2005 NY Slip Op 51893(U))The insurer waived defenses based on incomplete assignments by failing to object within 10 days of receipt.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U))Peer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.