January 25, 2012

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))

https://www.beynensonlaw.com/case-law/diagnostic-medicine-p-c-v-clarendon-natl-ins-co-2012-ny-slip-op50102u/

Court: Appellate Term, First Department
Decided: January 25, 2012
Citation: 2012 NY Slip Op 50102(U) · 34 Misc 3d 143(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co., 34 Misc 3d 143(A), 2012 NY Slip Op 50102(U) (App Term, 1st Dept 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 provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing. In this no-fault benefits action, the insurer established proper and timely mailing of its denials and submitted competent medical evidence, including a sworn peer review report, showing that the diagnostic testing lacked medical necessity. Opposition consisting only of counsel's affirmation did not raise a triable issue. The Appellate Term, First Department, reversed the order denying the insurer's motion, granted summary judgment, and dismissed the complaint.

Reported in New York Official Reports at Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))

[*1]

Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co.

2012 NY Slip Op 50102(U) [34 Misc 3d 143(A)]

Decided on January 25, 2012

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 25, 2012

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: Lowe, III, P.J., Schoenfeld, Hunter, Jr., JJ
11-266.

Diagnostic Medicine, P.C., a/a/o Angelo Kitkas, Plaintiff-Respondent, – –
against
Clarendon National Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered June 8, 2010, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered June 8, 2010, reversed, without costs, defendant’s motion for summary judgment granted, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

In this action to recover first-party no-fault benefits, defendant made a prima facie showing of entitlement to summary judgment dismissing the complaint by establishing its proper and timely mailing of the denial of claim forms at issue herein (see Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 17-18 [2007]), and submitting competent medical evidence, including a sworn peer review report, that the diagnostic testing giving rise to plaintiff’s claims lacked medical necessity (see CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d 87, 88 [2007]). Plaintiff’s opposition consisting of an attorney’s affirmation — unaccompanied by any medical evidence or other competent proof — was insufficient to raise a triable issue (see Munoz v Hollingsworth, 18 AD3d 278, 279 [2005]; CPT Med. Servs., P.C. v NY Cent. Mut. Fire Ins. Co., 18 Misc 3d at 88).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: January 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.

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 sworn peer review showed the diagnostic testing lacked medical necessity, and the provider's attorney's affirmation, unaccompanied by medical evidence, raised no triable issue, so the complaint was dismissed.

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 72 decisions on this question in the First Department courts and the Court of Appeals, 28 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

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 insurer established proper and timely mailing of the denial of claim forms as part of its prima facie showing.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decision

Of the 151 decisions on this question in the First Department courts and the Court of Appeals, 104 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

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.
CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526) FollowedThe provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity.

Cited by

A label shows how the later decision treated this one.

TC Acupuncture, P.C. v Tri-State Consumer Ins. Co. (2016 NY Slip Op 50978(U)) FollowedThe insurer's IME report supported dismissal of later acupuncture claims, but its proof did not justify denying earlier claims outright.

Similar decisions

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.
Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion.
Neomy Med., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51639(U))The insurer's cross motion for summary judgment based on lack of medical necessity was denied for failure to prove timely denials.
AKS Med., P.C. v Clarendon Ins. Co. (2011 NY Slip Op 52072(U))The insurer's motion for summary judgment based on lack of medical necessity was denied because the provider raised a triable issue.
Patchogue Physical Therapy, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51444(U))The insurer's affirmed peer review report established an unrebutted lack of medical necessity for the billed services.