November 12, 2015

Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))

https://www.beynensonlaw.com/case-law/ap-orthopedic-rehabilitation-p-c-v-allstate-ins-co-2015-ny-slip-op51656u/

Court: Appellate Term, Second Department
Decided: November 12, 2015
Citation: 2015 NY Slip Op 51656(U)
Posture: Trial
Outcome: Provider prevailed
Issues: Medical necessity Trial and evidence
Legal questions: Lack of medical necessity (see the maps)

Cite as

Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co., 2015 NY Slip Op 51656(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015)

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 failed at trial to prove lack of medical necessity, and the record supported the provider's recovery on the third cause of action. The parties stipulated that only that cause of action would be tried and that the insurer's witness was an expert. The nonjury trial proceeded solely on the medical-necessity defense. Although appellate review of a nonjury determination is as broad as the trial court's authority, credibility findings receive substantial deference. The trial proof and assessment of the insurer's witness supported rejection of the defense. The Appellate Term, Second Department, affirmed the judgment, insofar as appealed from, and deemed the notice of appeal from the decision premature under CPLR 5520 (c).

Reported in New York Official Reports at Ap Orthopedic & Rehabilitation, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51656(U))

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

AP Orthopedic & Rehabilitation, P.C. as Assignee of EUGENE COOPER and MYONG KUNG SONG, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered December 18, 2012. The judgment, entered pursuant to a decision of the same court dated September 14, 2012, insofar as appealed from, after a nonjury trial, awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated September 14, 2012 is deemed a premature notice of appeal from so much of the judgment entered December 18, 2012 as awarded plaintiff the principal sum of $8,220.17 on plaintiff’s third cause of action (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment, insofar as appealed from, is affirmed, with $25 costs.

At a nonjury trial of this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, the parties’ attorneys stipulated that the only issue to be tried concerned the third cause of action, for which plaintiff sought to recover the principal sum of $8,220.17. It was further stipulated that defendant’s witness was an expert. The trial proceeded solely upon defendant’s defense of lack of medical necessity. Following the trial, the Civil Court found in favor of plaintiff on the third cause of action.

In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the determination of a trier of fact as to issues of credibility is given substantial deference, as a trial court’s opportunity to observe and evaluate the testimony and demeanor of the witnesses affords it a better perspective from which to assess their credibility (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Hamilton v Blackwood, 85 AD3d 1116 [2011]; Zeltser v Sacerdote, 52 AD3d 824, 826 [2008]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of defendant’s witness and the proof adduced at trial, that defendant failed to demonstrate that the services rendered were not medically necessary. As we find no basis to disturb the Civil Court’s findings, the judgment, insofar as appealed from, is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 12, 2015

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Affirmed judgment for the provider after a nonjury trial because, deferring to the trial court's assessment of the insurer's expert's credibility, the insurer failed to demonstrate that the services were not medically necessary.

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, 109 (this one included) are in the same category.

Similar decisions

Orlin & Cohen Orthopedic Assoc. v Allstate Ins. Co. (2017 NY Slip Op 50937(U))The provider failed to prove that spinal surgery was medically necessary after the insurer rebutted the presumption of necessity.
Greater NY Med. Care, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51849(U))The provider's trial judgment was reversed because it contradicted findings that the insurer proved lack of medical necessity without rebuttal.
James J. Kim, L.A.C., P.C. v Allstate Ins. Co. (2023 NY Slip Op 50587(U))A provider bears the ultimate burden of proving medical necessity by a preponderance of the evidence at a no-fault trial.
Parkway Hosp., Inc. v Integon Natl. Ins. Co. (2019 NY Slip Op 51187(U))An insurer bears the initial burden at trial of rebutting the presumption of medical necessity that attaches to a claim form.
Jcc Med., P.C. v Hereford Ins. Co. (2019 NY Slip Op 51100(U))The insurer rebutted the presumption of medical necessity, and the provider failed to prove the services were medically necessary.