December 17, 2014

Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U))

https://www.beynensonlaw.com/case-law/cherkin-v-praetorian-ins-co-2014-ny-slip-op-51828u/

Court: Appellate Term, Second Department
Decided: December 17, 2014
Citation: 2014 NY Slip Op 51828(U) · 46 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Cherkin v Praetorian Ins. Co., 46 Misc 3d 131(A), 2014 NY Slip Op 51828(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 summary judgment motion was denied because medical necessity presented a triable issue of fact. The Appellate Term, Second Department, affirmed the order in the provider's action for assigned no-fault benefits. Although the insurer established timely mailing of its denial forms, the court's review of the record disclosed a factual issue concerning the medical necessity of the services.

Reported in New York Official Reports at Cherkin v Praetorian Ins. Co. (2014 NY Slip Op 51828(U))

[*1]

Cherkin v Praetorian Ins. Co.

2014 NY Slip Op 51828(U) [46 Misc 3d 131(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1980 Q C

Dr. Allen Cherkin, D.C. as Assignee of DIANA OTTENWALDER, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 12, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, upon a review of the record, we find 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]).

Accordingly, the order is affirmed.

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

Decision Date: December 17, 2014

Legal questions (2)

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.

Lack of medical necessity

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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)

Found a triable issue of fact on medical necessity on the record, so the insurer's summary judgment motion was properly denied.

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

Proof of mailing

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Did a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?

This decision: The insurer's (or its agent's) proof established mailing of its denial, verification request or IME/EUO notice (rules on the question, but another ground decided the case)

Held the insurer sufficiently established timely mailing of its denials.

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 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 809 (this one included) are in the same category.

Cited in this decision

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072)The insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345)An insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Similar decisions

Northshore Chiropractic Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 51646(U))The provider's doctor's affidavit raised a factual issue on medical necessity despite the insurer's supported peer review reports.
American Chiropractic Care, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 50346(U))The provider's treating chiropractor's sworn letter raised a factual issue on medical necessity despite the insurer's peer review.
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.
North Bronx Med. Health Care v Praetorian Ins. Co. (2015 NY Slip Op 51231(U))The insurer's motion for summary judgment dismissing the provider's claims on medical necessity grounds was denied.
Lynbrook Med. of NY, P.C. v Praetorian Ins. Co. (2015 NY Slip Op 51226(U))The insurer's peer review established lack of medical necessity, and the provider submitted no medical evidence to rebut it.