March 11, 2014

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))

https://www.beynensonlaw.com/case-law/advanced-orthopedics-pllc-v-new-york-cent-mut-fire-ins-co-2014-nyslip-op-50418u/

Court: Appellate Term, Second Department
Decided: March 11, 2014
Citation: 2014 NY Slip Op 50418(U) · 42 Misc 3d 150(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co., 42 Misc 3d 150(A), 2014 NY Slip Op 50418(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 parties' conflicting medical expert opinions raised a triable issue of fact concerning medical necessity. The insurer sought summary judgment dismissing the provider's action to recover assigned first-party no-fault benefits. Although the insurer sufficiently established timely mailing of its denial, the competing expert opinions prevented a determination as a matter of law that the services lacked medical necessity. Applying Zuckerman v City of New York, the Appellate Term, Second Department, affirmed the order denying the insurer's motion, leaving the provider's claims pending.

Reported in New York Official Reports at Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50418(U))

[*1]

Advanced Orthopedics, PLLC v New York Cent. Mut. Fire Ins. Co.

2014 NY Slip Op 50418(U) [42 Misc 3d 150(A)]

Decided on March 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JFJ.

Advanced Orthopedics, PLLC as Assignee of LOUCKENS OLIVIER, Respondent,
against
New York Central Mutual Fire Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered February 6, 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 form (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, the conflicting medical expert opinions proffered by the parties were sufficient to demonstrate the existence of a triable issue of fact as to whether there was a lack of medical necessity for the services provided. Consequently, defendant’s motion for summary judgment was properly denied (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

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

2012-838 Q C., concur.
Decision Date: March 11, 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)

Held the parties' conflicting medical expert opinions raised a triable issue of fact as to lack of medical necessity, 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 denial of claim form, but the motion still failed on medical necessity.

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

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

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe 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) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.

Similar decisions

Comprehensive MRI of N.Y., P.C. v New York Cent. Mut. Fire Ins. Co. (2014 NY Slip Op 50128(U))Conflicting medical expert opinions raised a triable issue of fact concerning the medical necessity of the provider's services.
Advanced Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50454(U))The insurer's unrebutted IME evidence established that the services underlying the provider's third and fifth causes of action were unnecessary.
Queens Integrated Med. Care P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 51400(U))The parties' conflicting medical expert opinions raised a triable issue concerning the necessity of physical therapy and related services.
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.
Top Choice Med., P.C. v Clarendon Natl. Ins. Co. (2015 NY Slip Op 50384(U))The parties' conflicting medical opinions raised a triable issue as to the medical necessity of the provider's services.