October 25, 2012

Quality Psychological Servs., P.C. v Travelers Ins. Co. (2012 NY Slip Op 52080(U))

https://www.beynensonlaw.com/case-law/quality-psychological-servs-p-c-v-travelers-ins-co-2012-ny-slip-op52080u/

Court: Appellate Term, Second Department
Decided: October 25, 2012
Citation: 2012 NY Slip Op 52080(U) · 37 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Proof of mailing · Lack of medical necessity (see the maps)

Cite as

Quality Psychological Servs., P.C. v Travelers Ins. Co., 37 Misc 3d 133(A), 2012 NY Slip Op 52080(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012)

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 established timely denial and lack of medical necessity, while the provider's psychologist failed to rebut the peer reviews. Contrary to the Civil Court's finding, the insurer's affidavit sufficiently established timely mailing of the denial forms. Two sworn peer review reports each supplied a factual basis and medical rationale for finding the psychological services unnecessary. The opposing psychologist's affidavit did not meaningfully address the reports' conclusions and therefore raised no triable issue. The Appellate Term, Second Department, reversed the order, denied the provider's summary judgment motion, and granted the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Quality Psychological Servs., P.C. v Travelers Ins. Co. (2012 NY Slip Op 52080(U))

[*1]

Quality Psychological Servs., P.C. v Travelers Ins. Co.

2012 NY Slip Op 52080(U) [37 Misc 3d 133(A)]

Decided on October 25, 2012

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through December 3, 2012; it will not be published in the printed Official Reports.

Decided on October 25, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-3066 K C.

Quality Psychological Services, P.C. as Assignee of JOHNNY RIVERA, Respondent,
against
Travelers Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered August 6, 2010. 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 reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

Contrary to the finding of the Civil Court, the affidavit submitted by defendant was sufficient to establish 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]), which [*2]denied plaintiff’s claims on the ground of lack of medical necessity. Defendant also submitted two sworn peer review reports, each of which set forth the factual basis and medical rationale for the psychologist’s determination that there was a lack of medical necessity for the services at issue. In opposition, plaintiff submitted an affidavit by a psychologist which failed to meaningfully refer to, let alone rebut, the conclusions set forth in the peer review reports (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant’s cross motion should have been granted (see A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 25, 2012

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.

Proof of mailing

Open the full map

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

Held, contrary to the lower court, that the insurer's affidavit sufficed to establish timely mailing of its denial of claim forms.

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.

Lack of medical necessity

Open the full map

Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held two sworn peer reviews set forth a factual basis and medical rationale for lack of necessity, and the provider's psychologist affidavit failed to meaningfully refer to, let alone rebut, their conclusions.

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, 315 (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)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.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.

Similar decisions

Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U))The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment.
Quality Psychological Servs., P.C. v Mercury Ins. Group (2010 NY Slip Op 50601(U))The insurer's timely denial and peer review report supported its defense, but the provider raised a medical-necessity fact issue.
Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51703(U))The insurer's unrebutted sworn peer review report supported dismissal for lack of medical necessity, and its denial was timely mailed.
Quality Psychological Servs., P.C. v Clarendon Ins. Co. (2012 NY Slip Op 50345(U))The insurer's motion for summary judgment on lack of medical necessity was denied because the provider's psychologist's affidavit raised a factual issue.
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.