April 10, 2012

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50678(U))

https://www.beynensonlaw.com/case-law/hong-tao-acupuncture-p-c-v-praetorian-ins-co-2012-ny-slip-op50678u/

Court: Appellate Term, Second Department
Decided: April 10, 2012
Citation: 2012 NY Slip Op 50678(U) · 35 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity Timeliness and preclusion
Legal questions: Lack of medical necessity (see the maps)

Cite as

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co., 35 Misc 3d 131(A), 2012 NY Slip Op 50678(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 lack of medical necessity for the remaining claims, while timely submission of one claim remained disputed. The Appellate Term, Second Department, reversed the provider's judgment on the single claim and denied the corresponding branch of its summary judgment cross motion. A triable issue concerning timely submission under 11 NYCRR 65-1.1 prevented summary judgment for either party on that claim. The court also reversed the order, insofar as appealed from and reviewed on direct appeal, and granted the insurer summary judgment dismissing the remaining claims. Sworn and affirmed peer reviews supplied a factual basis and medical rationale for lack of medical necessity, which the provider failed to rebut. The timely denial of those claims was undisputed.

Reported in New York Official Reports at Hong Tao Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50678(U))

[*1]

Hong Tao Acupuncture, P.C. v Praetorian Ins. Co.

2012 NY Slip Op 50678(U) [35 Misc 3d 131(A)]

Decided on April 10, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 10, 2012

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-585 Q C.

Hong Tao Acupuncture, P.C. as Assignee of JOSE ROSALES, Respondent, —
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 21, 2010. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment on its claim for $150 for services rendered on September 6, 2007. So much of the appeal as is from the portions of the order that denied the branch of defendant’s motion seeking summary judgment dismissing plaintiff’s claim for $150 for services rendered on September 6, 2007 and granted the branch of plaintiff’s cross motion seeking summary judgment with respect to that claim is deemed from a judgment of the same court entered March 9, 2010 awarding plaintiff the principal sum of $150 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order as granted the branch of plaintiff’s cross motion seeking summary judgment with respect to plaintiff’s claim for $150 for services rendered on September 6, 2007 is vacated, and said branch of plaintiff’s cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed on direct appeal, is reversed, without costs, and the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for services rendered from October 5, 2007 through February 21, 2008 are granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment upon its claim for $150 for services rendered on September 6, 2007. A judgment was subsequently entered, from which the appeal, in part, is deemed to have been taken (see CPLR 5501 [c]).

Contrary to the determination of the Civil Court, there is a triable issue of fact with respect to the timeliness of plaintiff’s submission of the claim seeking reimbursement in the sum of $150 for services rendered on September 6, 2007 (see Insurance Department Regulations [11 NYCRR] § 65-1.1; New York & Presbyt. Hosp. v American Tr. Ins. Co., 45 AD3d 822 [2007]). Consequently, neither party was entitled to summary judgment on this claim (see Zuckerman v City of New York, 49 NY2d 557 [1980]). [*2]

With respect to the remaining claims at issue, in support of its motion for summary judgment, defendant submitted, among other things, sworn and affirmed peer review reports, which set forth a factual basis and medical rationale for the opinions that there was a lack of medical necessity for the services set forth in these claims (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[A] [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 failed to rebut defendant’s prima facie showing of a lack of medical necessity.

In light of the foregoing and the Civil Court’s finding that defendant timely denied the claims, a finding which plaintiff does not dispute, the branches of defendant’s motion seeking summary judgment on the claims for services provided from October 5, 2007 through February 21, 2008 should have been granted.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: April 10, 2012

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.

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

Granted the insurer summary judgment on the later claims because its sworn and affirmed peer reviews set forth a factual basis and medical rationale and the provider failed to rebut them.

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.

New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376) FollowedThe insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.
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

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Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
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.