December 9, 2003

A.B. Med. Servs. v GEICO Ins. (2003 NY Slip Op 23949)

https://www.beynensonlaw.com/case-law/a-b-med-servs-v-geico-ins-2003-ny-slip-op-23949/

Court: Appellate Term, Second Department
Decided: December 9, 2003
Citation: 2003 NY Slip Op 23949 · 2 Misc 3d 26
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Provider's prima facie case Timeliness and preclusion Verification requests
Legal questions: Claimant's prima facie case on motions · Proof of mailing · Outstanding verification and premature actions (see the maps)

Cite as

A.B. Med. Servs. v GEICO Ins., 2 Misc 3d 26 (App Term, 2d Dept 2003)

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.

A provider need not prove medical necessity at the claim stage or on a subsequent motion for summary judgment. The Appellate Term, Second Department, reversed the order and granted two providers summary judgment on all four claims for which they sought relief. Under Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c), the insurer's failure to timely deliver a determination on one chiropractic claim precluded its objections; it showed no action after timely verification responses on the other. The medical provider proved claim mailing on September 24, 2001; the insurer's March 2002 verification requests were untimely under 11 NYCRR 65-3.5 (a) and 65-3.6 (b). The matter was remanded for statutory interest, attorney fees, and further proceedings on the remainder of the action.

Reported in New York Official Reports at A.B. Med. Servs. v GEICO Ins. (2003 NY Slip Op 23949)

A.B. Med. Servs. v GEICO Ins.

2003 NY Slip Op 23949 [2 Misc 3d 26]

Accepted for Miscellaneous Reports Publication

AT2

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, April 7, 2004

[*1]

A.B. Medical Services PLLC et al., Appellants, et al., Plaintiff,
v
GEICO Insurance, Respondent.

Supreme Court, Appellate Term, Second Department, December 9, 2003

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**2 Misc 3d at 26} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, motion for summary judgment on their claims granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.{**2 Misc 3d at 27}

In this action to recover $4,643.74 in first-party no-fault benefits, two of the plaintiffs moved for summary judgment, Royalton Chiropractic P.C. on two claims, one for $1,730.58 for tests rendered April 13, 2001, and one for $1,757.62 for tests rendered April 16, 2001, and A.B. Medical Services, PLLC on its two claims, each for $302.12. Defendant opposed, citing said plaintiffs’ failure to prove the treatments’ medical necessity and otherwise to allege a prima facie case for summary judgment. Summary judgment should have been granted as to the four claims.

We have rejected arguments that a no-fault benefits claimant is obligated to prove the treatment’s medical necessity, at the claim stage or in support of its motion for a summary judgment in a subsequent action on the claim (see Amaze Med. Supply v Eagle Ins. Co., 2003 NY Slip Op 51701[U] [decided herewith]; Choicenet Chiropractic v Allstate Ins. Co., 2003 NY Slip Op 50672[U]; Park Health Ctr. v Prudential Prop. & [*2]Cas. Ins. Co., 2001 NY Slip Op 40650[U]; see also Sehgal v Royal Ins. Co. of Am., NYLJ, Apr. 15, 1999, at 31, col 4 [App Term, 9th & 10th Jud Dists]). Having failed to timely mail or otherwise deliver its determination form with respect to Royalton’s $1,730.58 claim, that is, to “pay or deny the claim in whole or in part” (11 NYCRR 65-3.8 [c]) within 30 days of receipt as required by Insurance Law § 5106 (a) (see Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]; Damadian MRI in Canarsie v Countrywide Ins. Co., 194 Misc 2d 708 [2003]), defendant waived nearly all objections and defenses thereto, relating to the adequacy of the proof of claim (New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 701 [2001]) or to its propriety (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; New York & Presbyt. Hosp. v Empire Ins. Co., 295 AD2d 325 [2002]). We also agree that defendant failed to demonstrate that it took any action on Royalton’s $1,757.62 claim after Royalton timely responded to its request for medical verification, thereby waiving any defenses to said claim. Finally, given A.B. Medical Services’ unrebutted proof that it mailed Kaufman’s claims on September 24, 2001, defendant’s March 2002 verification requests were clearly untimely (11 NYCRR 65-3.5 [a]; 65-3.6 [b]) and thus summary judgment should also be granted as to this claim.

The matter is remanded to the court below for a calculation of the statutory interest and an assessment of attorney’s fees due on $4,092.44, the portion of the claim for which summary judgment {**2 Misc 3d at 28}was sought (Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]; 65-3.10 [a]; see St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]), and for all further proceedings on the remainder of the claim.

Aronin, J.P., Golia and Rios, JJ., concur.

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.

Claimant's prima facie case on motions

Open the full map

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

Rejected the insurer's argument that the providers had to prove medical necessity to make their prima facie case, and granted them summary judgment on all four claims.

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

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Proof of mailing

Open the full map

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)

Relied on the provider's unrebutted proof that it mailed the claims on a specific date to find the insurer's later verification requests untimely.

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

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 103 (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.

Outstanding verification and premature actions

Open the full map

Did unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?

This decision: Defense rejected because the insurer's requests or proof were deficient (rules on the question, but another ground decided the case)

Held verification requests sent about six months after the provider mailed two claims untimely, so summary judgment was granted on them, and that the insurer waived defenses to another claim by not acting after the provider timely responded to verification.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decision

Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.

Cited by (11)

A label shows how the later decision treated this one.

Behavioral Diagnostics v Allstate Ins. Co. (2004 NY Slip Op 24041) FollowedPsychological testing is medically necessary when accepted practice requires it or a reasonable patient-specific judgment supports its diagnostic use.
Harbor Med. & Diagnostic, P.C. v Allstate Ins. Co. (2006 NY Slip Op 50378(U)) FollowedThe insurer failed to prove timely mailing of its denials and was precluded from asserting its medical-necessity defense.
Nir v Allstate Ins. Co. (2005 NY Slip Op 25090)The insurer failed to prove that EMG/NCV testing was medically unnecessary because its peer review lacked an adequate rationale.
King’s Med. Supply Inc. v Country-Wide Ins. Co. (2004 NY Slip Op 24394)A medical supplier need not prove documented cost as part of its prima facie no-fault case.
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.
Healing Hands Chiropractic, P.C. v Nationwide Assur. Co. (2004 NY Slip Op 24472)Prior arbitration decisions rejecting a diagnostic test do not supply the medical evidence needed to establish lack of medical necessity.
A.B. Med. Servs. PLLC v Travelers Prop. Cas. Corp. (2004 NY Slip Op 24289)A provider's substantive challenge to an unsworn peer review permits the insurer to rely on that report in opposition to summary judgment.
Webster Ave. Med., P.C. v Travelers Prop. Cas. (2004 NY Slip Op 51526(U))The insurer's timely denials failed to preserve a medical-necessity defense because they lacked a sufficient factual basis and medical rationale.
Queens Blvd. Med. v Travelers Indem. Co. (2004 NY Slip Op 24101)The insurer failed to disprove medical necessity after its expert was excluded for lacking expertise in biofeedback for back pain.
Citywide Social Work & Psychological Servs., P.L.L.C. v Allstate Ins. Co. (2005 NY Slip Op 51283(U))The provider recovered for record review, but inadequate intake supported denial of the interview, psychological testing, and reporting claims.

Show all 11 citing decisions

Ray Presutto, L.M.T., P.C. v Travelers Ins. Co. (2007 NY Slip Op 52095(U))

Similar decisions

A.B. Med. Servs. PLLC v Country-Wide Ins. Co. (2005 NY Slip Op 50255(U))An investigation-delay letter identifying no verification sought or source does not toll the 30-day claim determination period.
A.B. Med. Servs. v State Farm Mut. Auto. Ins. Co. (2004 NY Slip Op 50387(U))The insurer's EUO request did not toll the denial period under the former regulations, and its fraud evidence raised no triable issue.
A.B. Med. Servs. PLLC v Allstate Ins. Co. (2005 NYSlipOp 51270(U))The insurer failed to prove timely mailing of its denials, entitling the providers to partial summary judgment on the claims they moved upon.
A.B. Med. Servs. PLLC v GEICO Cas. Ins. Co. (2005 NYSlipOp 50650(U))The medical services provider's summary judgment motion was granted because the insurer supplied no admissible medical necessity opposition.
A.B. Med. Servs. PLLC v Utica Mut. Ins. Co. (2006 NY Slip Op 51334(U))The insurer's incomplete denial and inadmissible fraud proof failed to defeat the health care providers' summary judgment motion.