December 23, 2011
Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U))
https://www.beynensonlaw.com/case-law/biobalance-med-p-c-v-clarendon-natl-ins-co-2011-ny-slip-op52378u/
- Decided
- December 23, 2011
- Citation
- 2011 NY Slip Op 52378(U) · 34 Misc 3d 134(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Issues
- Medical necessity
- Legal questions
- Lack of medical necessity · Proof of mailing (see the maps)
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.
Reported in New York Official Reports at Biobalance Med., P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52378(U))
| Biobalance Med., P.C. v Clarendon Natl. Ins. Co. |
| 2011 NY Slip Op 52378(U) [34 Misc 3d 134(A)] |
| Decided on December 23, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : STEINHARDT, J.P., PESCE and WESTON, JJ
2010-2200 K C.
against
Clarendon National Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 22, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing plaintiff’s third cause of action.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order as denied its motion for summary judgment dismissing plaintiff’s third cause of action.
In support of its motion for summary judgment, defendant established that it timely denied plaintiff’s claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. Cos., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) on the ground of lack of medical necessity. [*2]As the affirmed peer review report annexed to defendant’s motion papers set forth a factual basis and medical rationale for the peer review doctor’s determination that there was a lack of medical necessity for the services at issue, defendant established its prima facie entitlement to summary judgment dismissing plaintiff’s third cause of action (see Delta Diagnostic Radiology, P.C., 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]). In opposition to defendant’s motion, plaintiff failed to raise a triable issue of fact, as it failed to proffer an affidavit from a health-care practitioner which meaningfully referred to, let alone rebutted, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the Civil Court’s order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing plaintiff’s third cause of action is granted.
Steinhardt, J.P., Pesce and Weston JJ., concur.
Decision Date: December 23, 2011
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.
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 peer review established lack of medical necessity, and the provider offered no practitioner's affidavit meaningfully referring to or rebutting it, so the insurer won summary judgment on that cause of action.
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.
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 that it timely denied the claim on the ground of lack of medical necessity.
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.
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.
- Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
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.
- BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.
- 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.
- Baybenson Chiropractic, LLC v Clarendon Natl. Ins. (2013 NY Slip Op 50756(U))The provider's chiropractor failed to rebut the insurer's peer review and IME findings that the chiropractic services were unnecessary.
- Richmond Pain Mgt., P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52015(U))The insurer's sworn peer review established lack of medical necessity for testing, and the practitioner's affidavit did not rebut it.