July 6, 2018

Bay Plaza Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 51082(U))

https://www.beynensonlaw.com/case-law/bay-plaza-chiropractic-p-c-v-auto-one-ins-co-2018-ny-slip-op51082u/

Court: Appellate Term, Second Department
Decided: July 6, 2018
Citation: 2018 NY Slip Op 51082(U)
Posture: Summary judgment
Outcome: Split result
Issues: Discovery and procedure Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Bay Plaza Chiropractic, P.C. v Auto One Ins. Co., 2018 NY Slip Op 51082(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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 insurer was entitled to a provider deposition on medical necessity, but a triable factual issue precluded summary judgment. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer's alternative request to compel the provider to appear for an examination before trial. The record presented a triable issue concerning the medical necessity of the services, so the insurer's request for summary judgment dismissing the complaint remained denied. Its moving papers established service of a deposition notice, and the examination was material and necessary to its defense that the services lacked medical necessity under CPLR 3101 (a).

Reported in New York Official Reports at Bay Plaza Chiropractic, P.C. v Auto One Ins. Co. (2018 NY Slip Op 51082(U))

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Bay Plaza Chiropractic, P.C., as Assignee of Lakesha Robinson, Respondent,
against
Auto One Insurance Company, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Lewin & Baglio, LLP (Brendan Kearns of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 14, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted, and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT).

Upon a review of the record, we agree with the Civil Court’s determination that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Consequently, defendant was not entitled to summary judgment dismissing the complaint. However, as defendant’s moving papers established that [*2]defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking to compel plaintiff to appear for an examination before trial is granted.

WESTON, J.P., ELLIOT and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 06, 2018

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Affirmed denial of the insurer's summary judgment motion because a triable issue of fact existed regarding the medical necessity of the services.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Cited in this decision

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

Great Wall Acupuncture, P.C. v General Assur. Co. (2008 NY Slip Op 28350) FollowedA timely motion to vacate a notice of trial should be granted when the certificate of readiness wrongly states discovery is complete.

Similar decisions

S.J. Pahng, M.D., P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51513(U))The insurer established entitlement to a provider deposition material and necessary to its lack of medical necessity defense.
North Bronx Med. Health Care v Auto One Ins. Co. (2016 NY Slip Op 51625(U))The insurer was entitled to depose the treating doctor, but factual issues on medical necessity defeated summary judgment on both claims.
Holtsville Chiropractic, P.C. v AutoOne Ins. Co. (2017 NY Slip Op 51516(U))The insurer's motion to compel a provider deposition and strike the notice of trial was granted on appeal.
Great Health Care Chiropractic, P.C. v Interboro Ins. Co. (2013 NY Slip Op 51737(U))An insurer defending a no-fault action on medical necessity grounds is entitled to depose the provider's treating chiropractor.
Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U))The provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review.