August 27, 2012

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))

https://www.beynensonlaw.com/case-law/ve-med-care-p-c-v-ny-cent-mut-fire-ins-co-2012-ny-slip-op51659u/

Court: Appellate Term, Second Department
Decided: August 27, 2012
Citation: 2012 NY Slip Op 51659(U) · 36 Misc 3d 150(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 150(A), 2012 NY Slip Op 51659(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 proved timely denials and an unrebutted lack of medical necessity through its litigation examiner's affidavit and IME report. The provider appealed an order granting the insurer summary judgment dismissing its action for assigned no-fault benefits. Contrary to the provider's arguments, the litigation examiner's affidavit established timely denial of the claims. The affirmed IME report supplied a factual basis and medical rationale for the doctor's determination that the services lacked medical necessity. The provider failed to rebut the insurer's prima facie showing. The Appellate Term, Second Department, affirmed the order granting the insurer's motion.

Reported in New York Official Reports at VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51659(U))

[*1]

VE Med. Care, P.C. v NY Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 51659(U) [36 Misc 3d 150(A)]

Decided on August 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2010-2590 K C.

VE Medical Care, P.C. as Assignee of JORGE CORTE, Appellant, —
against
NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 29, 2010. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court granting defendant’s motion for summary judgment dismissing the complaint on the ground of lack of medical necessity.

Contrary to plaintiff’s arguments on appeal, the affidavit submitted by defendant’s litigation examiner was sufficient to establish that defendant had timely denied the claims (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]). In addition, defendant submitted an affirmed independent medical examination report which set forth a factual basis and a medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Defendant’s prima facie showing was not rebutted by plaintiff. As plaintiff’s remaining contentions lack merit, defendant was [*2]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]).

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 27, 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.

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

Held the affirmed IME report set forth a factual basis and medical rationale for lack of necessity, and the provider did not rebut that prima facie showing.

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.

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)

Rejected the provider's arguments and held the litigation examiner's affidavit sufficient to establish that the insurer timely denied the claims.

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 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.

Similar decisions

VE Med. Care, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52262(U))The insurer's peer review and IME reports established lack of medical necessity, and the provider failed to rebut their conclusions.
V.S. Med. Servs., P.C. v New York Cent. Mut. Ins. (2007 NY Slip Op 51080(U))The provider's summary judgment motion failed because its officer's affidavit did not establish a business-records foundation.
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.
VE Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2015 NY Slip Op 50603(U))The insurer's summary judgment motion based on the provider's alleged EUO nonappearance was denied on appeal.
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.