February 19, 2013

Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))

https://www.beynensonlaw.com/case-law/medical-assoc-p-c-v-clarendon-natl-ins-co-2013-ny-slip-op50248u/

Court: Appellate Term, Second Department
Decided: February 19, 2013
Citation: 2013 NY Slip Op 50248(U) · 38 Misc 3d 142(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

Medical Assoc., P.C. v Clarendon Natl. Ins. Co., 38 Misc 3d 142(A), 2013 NY Slip Op 50248(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013)

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 provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion. The provider also sought a finding under CPLR 3212 (g) that its prima facie case was established. Its supporting affidavit, however, did not establish untimely denials or timely denials that were conclusory, vague, or without merit as a matter of law. The Appellate Term, Second Department, modified the order, insofar as appealed from, to deny the insurer's motion dismissing the complaint and otherwise affirmed. The provider obtained denial of the insurer's motion but did not obtain the requested finding establishing its prima facie case.

Reported in New York Official Reports at Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))

[*1]

Medical Assoc., P.C. v Clarendon Natl. Ins. Co.

2013 NY Slip Op 50248(U) [38 Misc 3d 142(A)]

Decided on February 19, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 19, 2013

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

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-74 K C.

Medical Associates, P.C. as Assignee of GRIGORIY MULLOKANDOV, Appellant, —
against
Clarendon National Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered October 18, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find for all purposes in the action that plaintiff had established its prima facie case. ORDERED that the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint and, upon denying plaintiff’s cross motion for summary judgment, failed to find, for all purposes in the action, that plaintiff had established its prima facie case. On appeal, plaintiff contends that it demonstrated the existence of a triable issue of fact as to the medical necessity of the services rendered and that the court should have made a finding, pursuant to CPLR 3212 (g), that plaintiff had established its prima facie case.

In opposition to defendant’s motion for summary judgment dismissing the complaint, [*2]plaintiff submitted an affirmation by a medical doctor which was sufficient to raise a triable issue of fact as to whether the services at issue were medically necessary (see Zuckerman v City of New York, 49 NY2d 557 [1980]). However, contrary to plaintiff’s further contention, plaintiff’s cross motion failed to establish plaintiff’s prima facie case because the affidavit submitted in support of the cross motion failed to establish that the claims at issue had not been timely denied or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).

Accordingly, the order, insofar as appealed from, is modified by providing that defendant’s motion for summary judgment is denied.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: February 19, 2013

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.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Insufficient: claimant did not prove the claim was overdue (not paid or timely denied)

Held the provider's affidavit failed to establish that the claims had not been timely denied or that timely denials were conclusory, vague or without merit, so no CPLR 3212 (g) prima facie finding was warranted.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 247 (this one included) are in the same category.

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 provider's medical doctor's affirmation raised a triable issue of fact as to medical necessity, so the insurer's summary judgment motion should have been denied.

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.

Ave T MPC Corp. v Auto One Ins. Co. (2011 NY Slip Op 51292(U)) FollowedThe provider failed to establish summary judgment entitlement because nonpayment alone did not show an absent or legally insufficient denial.
Westchester Med. Ctr. v Nationwide Mut. Ins. Co. (2010 NY Slip Op 08933)The provider failed to establish entitlement to summary judgment because the insurer partially paid and denied the claim within 30 days.

Similar decisions

Midtown Med. Assoc., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51351(U))The insurer established payment of one claim, untimely submission of three claims, and lack of medical necessity for the remaining services.
AKS Med., P.C. v Clarendon Ins. Co. (2011 NY Slip Op 52072(U))The insurer's motion for summary judgment based on lack of medical necessity was denied because the provider raised a triable issue.
Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U))The insurer's cross motion for summary judgment based on lack of medical necessity was denied for failure to prove timely denials.
Five Boro Psychological Servs., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51858(U))The insurer's unrebutted sworn peer review established lack of medical necessity and warranted dismissal of the provider's claim.