August 5, 2015

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51213(U))

https://www.beynensonlaw.com/case-law/idf-diagnostic-med-p-c-v-new-york-cent-mut-fire-ins-co-2015-nyslip-op-51213u/

Court: Appellate Term, Second Department
Decided: August 5, 2015
Citation: 2015 NY Slip Op 51213(U) · 48 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Discovery and procedure

Cite as

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co., 48 Misc 3d 138(A), 2015 NY Slip Op 51213(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's medical necessity motion was denied because requested discovery was not supplied in time for the provider to oppose it. The provider sought assigned no-fault benefits and opposed summary judgment on its first cause of action under CPLR 3212 (f), while cross-moving to compel disclosure under CPLR 3124. It demonstrated that it had requested but not timely received the peer review report, the medical documentation received by the insurer, and the documentation supplied to the peer reviewer. The insurer annexed discovery responses to its reply, rendering the cross motion moot but not establishing entitlement to summary judgment. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying dismissal of the first cause of action.

Reported in New York Official Reports at IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51213(U))

[*1]

IDF Diagnostic Med., P.C. v New York Cent. Mut. Fire Ins. Co.

2015 NY Slip Op 51213(U) [48 Misc 3d 138(A)]

Decided on August 5, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 5, 2015

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-158 K C

IDF Diagnostic Medical, P.C. as Assignee of GIZELLE CUSTODIO and VANESSA DIAZ, Respondent, August 5, 2015
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered November 20, 2012. The order, insofar as appealed from, denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.

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

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, defendant moved for summary judgment dismissing plaintiff’s first cause of action on the ground of lack of medical necessity. Plaintiff opposed the motion on the ground that, among other things, defendant had failed to respond to discovery demands and that defendant’s responses were necessary to oppose defendant’s motion (see CPLR 3212 [f]). Plaintiff also cross-moved to, among other things, compel defendant to provide the requested discovery (see CPLR 3124). In an order entered November 20, 2012, insofar as appealed from, the Civil Court denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action. The Civil Court held that, since defendant had annexed its discovery responses to its reply papers, plaintiff’s cross motion to compel disclosure was moot and that there was an issue of fact as to medical necessity because defendant had failed to provide, in a timely manner, the medical records which plaintiff had sought, so that plaintiff could respond to the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s first cause of action.

In opposition to defendant’s motion, and in support of its cross motion to compel discovery, plaintiff demonstrated that it had requested from defendant, but had not received in time to oppose defendant’s motion (see CPLR 3212 [f]), the peer review report, the complete set of medical documentation relating to the assignor received by defendant and the complete set of medical documentation provided to defendant’s peer reviewer. In light of the foregoing, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action (see Metropolitan Diagnostic Med. Care, P.C. v A. Cent. Ins. Co., 42 Misc 3d 133[A], 2013 NY Slip Op 52246[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; see also Alrof, Inc. v Progressive Ins. Co., 34 Misc 3d 29 [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order, insofar as appealed from, is affirmed.

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

Decision Date: August 05, 2015

Cited in this decision

Alrof, Inc. v Progressive Ins. Co. (2011 NY Slip Op 21419)An insurer need not prove medical records reliable when its expert assumes their contents true in disputing medical necessity.

Cited by

A label shows how the later decision treated this one.

GC Chiropractic, P.C. v Integon Natl. Ins. Co. (2019 NY Slip Op 51800(U)) FollowedThe insurer was denied summary judgment because the provider had not received requested medical records needed to oppose the motion.

Similar decisions

Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
New York Diagnostic Med. Care, P.C. v GEICO Gen. Ins. Co. (2013 NY Slip Op 50419(U))The provider's doctor's affidavit raised a factual issue on medical necessity, defeating the insurer's cross motion for summary judgment.
Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50383(U))The provider's physician affirmation raised a triable issue as to whether the services were medically necessary.
Medical Arts Radiological Group, P.C. v NY Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 51035(U))A court may permit discovery during a pending summary judgment motion when a party demonstrates a legitimate need for it.
Clinton Place Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50954(U))An IME nonappearance defense is subject to preclusion if the insurer's denials are untimely.