June 11, 2012

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))

https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-geico-gen-ins-co-2012-ny-slip-op51057u/

Court: Appellate Term, Second Department
Decided: June 11, 2012
Citation: 2012 NY Slip Op 51057(U) · 35 Misc 3d 146(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 35 Misc 3d 146(A), 2012 NY Slip Op 51057(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's peer review reports were inadmissible because they used a psychologist's affirmations rather than sworn statements. Although the claims examiner established timely mailing of medical-necessity denials, the provider preserved its objection to the reports' form. The psychologist could not affirm the reports under CPLR 2106. One report bore a notary's stamp and signature but lacked an attestation that the psychologist appeared before the notary and was duly sworn, failing CPLR 2309 (b). Without admissible reports, the insurer failed to make a prima facie showing shifting the burden to the provider. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and denied the insurer's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51057(U))

[*1]

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co.

2012 NY Slip Op 51057(U) [35 Misc 3d 146(A)]

Decided on June 11, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

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

PRESENT: : PESCE, P.J., WESTON and ALIOTTA, JJ
2010-1898 K C.

Five Boro Psychological Services, P.C. as Assignee of IVORY DARQUWAN, HECTOR ESPINAL and TASHEIA BYNES, Appellant, —
against
GEICO General 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 27, 2010. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

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

The affidavit executed by defendant’s claims examiner was sufficient to establish that defendant’s NF-10 forms, which denied plaintiff’s claims on the ground of lack of medical necessity, had been timely mailed (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]). Plaintiff argues on appeal, as it did in the [*2]Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn (see Eagle Surgical Supply, Inc., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U]; New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b).

As defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law sufficient to shift the burden to plaintiff (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment is denied.

Pesce, P.J., Weston and Aliotta, JJ., concur.
Decision Date: June 11, 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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer failed its prima facie showing because its peer review reports were affirmed by a psychologist, not permitted under CPLR 2106, and the notarized report lacked an attestation that the psychologist was sworn.

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, 109 (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)

Held the claims examiner's affidavit sufficient to establish that the NF-10 denials based on lack of medical necessity were timely mailed.

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.
Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50151(U)) FollowedThe insurer's chiropractic peer reviews were not in admissible form and failed to support summary judgment on medical necessity.
High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 51900(U)) FollowedThe provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's IME conclusions.
New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co. (2011 NY Slip Op 21240) FollowedThe provider's psychologist's purported affidavit failed CPLR 2309 (b) because it lacked attestation that an oath had been administered.

Similar decisions

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.
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.
Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
All Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2013 NY Slip Op 50252(U))The provider's medical necessity letter and testimony from an unrelated trial failed to rebut the insurer's psychological peer review.
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))The insurer established that one claim was premature for unanswered verification and two others lacked medical necessity.