August 31, 2012

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2012 NY Slip Op 51702(U))

https://www.beynensonlaw.com/case-law/axis-chiropractic-pllc-v-geico-gen-ins-co-2012-ny-slip-op51702u/

Court: Appellate Term, Second Department
Decided: August 31, 2012
Citation: 2012 NY Slip Op 51702(U) · 36 Misc 3d 152(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

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co., 36 Misc 3d 152(A), 2012 NY Slip Op 51702(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 denials and an unrebutted lack of medical necessity for the chiropractic services at issue. The provider sought summary judgment on its assigned no-fault claims, and the insurer cross-moved to dismiss the complaint. The insurer's affidavit established timely mailing of the denial forms, and its sworn IME report supplied a factual basis and medical rationale for the chiropractor's conclusion. The provider did not rebut that showing. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint and upheld the denial of the provider's motion and grant of the insurer's cross motion.

Reported in New York Official Reports at Axis Chiropractic, PLLC v GEICO Gen. Ins. Co. (2012 NY Slip Op 51702(U))

[*1]

Axis Chiropractic, PLLC v GEICO Gen. Ins. Co.

2012 NY Slip Op 51702(U) [36 Misc 3d 152(A)]

Decided on August 31, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2866 K C.

Axis Chiropractic, PLLC as Assignee of NISON PINKHASOV, Appellant, —
against
GEICO General Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered March 9, 2010, deemed from a judgment of the same court entered August 10, 2010 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2010 order denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment, dismissed the complaint.

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

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff’s argument on appeal, the affidavit submitted by defendant 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]), which denied plaintiff’s claims on the ground of lack of medical necessity. In addition, defendant submitted a [*2]sworn independent medical examination report which set forth a factual basis and a medical rationale for the chiropractor’s determination that there was a lack of medical necessity for the services at issue. Since defendant’s prima facie showing was not rebutted by plaintiff, defendant was entitled to summary judgment dismissing the complaint (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]). Plaintiff’s remaining contentions on appeal lack merit.

Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 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

Rejected the provider's appellate argument and held the insurer's affidavit established timely mailing of the 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 the sworn chiropractic IME report set forth a factual basis and medical rationale for lack of necessity, and the unrebutted showing entitled the insurer to summary judgment.

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) 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.
Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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

BLR Chiropractic, P.C. v GEICO (2012 NY Slip Op 51647(U))An insurer moving for summary judgment need not attach the provider's bills to its motion.
Glenn Segal PT, P.C. v GEICO (2014 NY Slip Op 51301(U))The provider's doctor's affidavit failed to rebut two IME reports establishing a lack of medical necessity for further treatment.
Axis Chiropractic, PLLC v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50753(U))The insurer established timely mailing of IME notices and denials and the assignors' failure to appear for the scheduled IMEs. In the provider's action for assigned no-fault benefits, affidavits from the scheduling company's president established timely mailing through standard office practices and procedures.
ABA Chiropractic, P.C. v Geico Gen. Ins. Co. (2013 NY Slip Op 52002(U))The insurer's cross motion for summary judgment on medical necessity was denied on appeal because a triable issue remained.
Atlantic Chiropractic, P.C. v Geico Ins. Co. (2017 NY Slip Op 51253(U))The provider's summary judgment was reversed because the insurer raised factual issues concerning timely denials and medical necessity.