February 1, 2013

Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 50219(U))

https://www.beynensonlaw.com/case-law/advanced-med-diagnostics-of-queens-p-c-v-geico-ins-co-2013-ny-slipop-50219u/

Court: Appellate Term, Second Department
Decided: February 1, 2013
Citation: 2013 NY Slip Op 50219(U) · 38 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Policy issues Provider's prima facie case Jurisdiction and service
Legal questions: Claimant's prima facie case on motions (see the maps)

Cite as

Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co., 38 Misc 3d 140(A), 2013 NY Slip Op 50219(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.

New Jersey law governed the provider's claim, and its failure to prove medical necessity defeated its summary judgment motion. A New Jersey resident's vehicle carried a New Jersey policy; the accident and treatment occurred in New York. A grouping-of-contacts analysis favored New Jersey, where the provider initially must prove medical necessity and NJSA 39:6A-5 permits that defense at any time. The insurer's jurisdictional dismissal motion failed because the policy allowed dispute resolution on a party's initiative rather than mandating it under NJSA 39:6A-5.1 (a) and NJAC 11:3-5.1 (a). The Appellate Term, Second Department, modified the order to deny the provider's motion and otherwise affirmed; because neither party sought to compel dispute resolution, it left other effects of that provision unresolved.

Reported in New York Official Reports at Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 50219(U))

[*1]

Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co.

2013 NY Slip Op 50219(U) [38 Misc 3d 140(A)]

Decided on February 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2013

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2011-1648 K C.

Advanced Medical Diagnostics of Queens, P.C. as Assignee of LORETTE CAMPBELL, Respondent, —
against
GEICO INS. CO., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered February 23, 2011. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without costs.

Plaintiff’s assignor was injured in a motor vehicle accident in New York while she was a passenger in a vehicle that was being driven by a New Jersey resident who owned the vehicle. The vehicle was insured by a New Jersey automobile insurance policy. Plaintiff, a New York corporation, rendered medical services to its assignor in New York and submitted a claim to defendant. Plaintiff subsequently commenced this action, alleging that the payment of no-fault benefits was overdue and, thereafter, moved for summary judgment. In opposition to plaintiff’s motion, defendant argued that New Jersey law controlled and, under New Jersey law, plaintiff had failed to establish its prima facie entitlement to summary judgment. Defendant also cross-moved for summary judgment dismissing the complaint. In its cross motion, defendant argued that, pursuant to New Jersey law and the New Jersey policy of insurance, the matter was [*2]required to be submitted to dispute resolution and, thus, that the Civil Court lacked jurisdiction. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

With respect to plaintiff’s motion for summary judgment, under New York law, in order to establish its prima facie case, a provider must show submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof either that the defendant had failed to pay or deny the claim within the requisite 30-day period, or that the defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; see also New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]), and the defense of a lack of medical necessity for the rendered services can be precluded (see Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]; Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Under New Jersey law, a provider has the burden, in the first instance, to establish that the provided services were medically reasonable and necessary (see Elkins v New Jersey Mfrs. Ins. Co., 244 NJ Super 695, 583 A2d 409 [1990]), and an insurer can raise a lack of medical necessity defense at any time (see NJSA 39:6A-5; Kowaleski v Allstate Ins. Co., 238 NJ Super 210 [1990]). In view of the foregoing, a conflict clearly exists between the law of New York and the law of New Jersey (see Matter of Allstate Ins. Co. [Stolarz – New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]).

Upon the application of a “center of gravity” or “grouping of contacts” analysis, we find that the dispositive factors weigh in favor of New Jersey and that its law should control (see A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 27 Misc 3d 52 [App Term, 9th & 10th Jud Dists 2010]; Careplus Med. Supply, Inc. v Selective Ins. Co. of Am., 25 Misc 3d 48 [App Term, 9th & 10th Jud Dists 2009]). Inasmuch as, under New Jersey law, plaintiff is required, in the first instance, to establish the medical necessity of the rendered services, and since plaintiff failed to provide such proof, plaintiff’s motion for summary judgment should have been denied.

With respect to defendant’s cross motion for summary judgment dismissing the complaint, defendant argues that, since dispute resolution is mandatory under New Jersey law, the Civil Court lacks jurisdiction and, thus, the action should be dismissed. Contrary to defendant’s contention, dispute resolution is not mandatory in the case at bar pursuant to NJSA 39:6A-5.1 (a), as implemented by NJAC 11:3-5.1 (a) (see also New Jersey Mfrs. Ins. Co. v Bergen Ambulatory Surgery Ctr., 410 NJ Super 270, 272-273 [2009]) since the insurance policy in question does not provide for mandatory dispute resolution; rather, it states that dispute resolution may be taken “on the initiative of any party to the dispute.” Consequently, the Civil Court does not lack jurisdiction and defendant’s cross motion for summary judgment dismissing the complaint on the ground of lack of jurisdiction was properly denied. Inasmuch as, on the record before us, neither party has sought to compel dispute resolution, we do not reach any other issue regarding the dispute resolution provision and its effects.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur. [*3]
Decision Date: February 01, 2013

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.

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: claim forms not shown admissible as business records / merits of claim not proved

Applied New Jersey law under a center-of-gravity analysis, which requires the provider to prove medical necessity in the first instance, and held the provider's summary judgment motion failed because it offered no such proof.

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

Cited in this decision

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

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.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 05602)The insurer proved a timely denial but failed to establish that the provider's treatment was unrelated to the accident.
Fair Price Med. Supply Corp. v Travelers Indem. Co. (2008 NY Slip Op 04946)An insurer's defense that billed supplies were never delivered is subject to preclusion for an untimely denial.
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2010 NY Slip Op 20094) FollowedThe insurer's summary judgment motion failed because New Jersey law governed and factual disputes remained over coverage.
Careplus Med. Supply, Inc. v Selective Ins. Co. of Am. (2009 NY Slip Op 29109) FollowedNew Jersey law governed the claim because the insurance contract and relevant residence and vehicle contacts centered in that state.

Cited by

A label shows how the later decision treated this one.

Natural Therapy Acupuncture, P.C. v Geico Ins. Co. (2015 NY Slip Op 25425) FollowedAn option to arbitrate no-fault disputes supports a stay upon a motion to compel arbitration, rather than dismissal of the action.
Bay Med. P.C. v Geico Ins. Co. (2013 NY Slip Op 52084(U))A policy requiring interpretation under New Jersey law invokes that state's substantive law, rather than its conflict rules.

Similar decisions

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.
Elite Med. NY, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 51738(U))The insurer established lack of medical necessity for two claims and outstanding verification that rendered the third claim premature.
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.
Dassa Orthopedic Med. Servs. PC v Amica Mut. Ins. Co. (2019 NY Slip Op 51664(U))The insurer's missing policy proof prevented summary judgment on coverage and left the choice of governing law unresolved.
We Care Med., P.C. v GEICO Ins. Co. (2010 NY Slip Op 50831(U))The provider's billing proof supported its first claim; an unrebutted peer review defeated its third claim on medical necessity.