November 4, 2011

AKS Med., P.C. v Clarendon Ins. Co. (2011 NY Slip Op 52072(U))

https://www.beynensonlaw.com/case-law/aks-med-p-c-v-clarendon-ins-co-2011-ny-slip-op-52072u/

Court: Appellate Term, Second Department
Decided: November 4, 2011
Citation: 2011 NY Slip Op 52072(U) · 33 Misc 3d 138(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

AKS Med., P.C. v Clarendon Ins. Co., 33 Misc 3d 138(A), 2011 NY Slip Op 52072(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 motion for summary judgment based on lack of medical necessity was denied because the provider raised a triable issue. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, relying on the treating physician's opposing affidavit, which it found sufficient despite the insurer's prima facie showing.

Reported in New York Official Reports at AKS Med., P.C. v Clarendon Ins. Co. (2011 NY Slip Op 52072(U))

[*1]

AKS Med., P.C. v Clarendon Ins. Co.

2011 NY Slip Op 52072(U) [33 Misc 3d 138(A)]

Decided on November 4, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 4, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-1142 Q C.

AKS Medical, P.C. as Assignee of JAINER LOWE, Respondent,
against
Clarendon Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered April 14, 2010. The order, insofar as appealed from as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

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.

Although defendant established its prima facie entitlement to summary judgment on the ground of lack of medical necessity (see 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]), the affidavit of plaintiff’s treating physician submitted in opposition to defendant’s motion was sufficient to demonstrate that there is a triable issue of fact as to medical necessity (cf. 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 order, insofar as appealed from, is affirmed. Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: November 04, 2011

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: Provider's evidence rebutted the insurer's showing (triable issue, or necessity found at trial)

Held that although the insurer made a prima facie showing of lack of medical necessity, the treating physician's opposing affidavit raised a triable issue, so the insurer's motion was properly denied.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 94 (this one included) are in the same category.

Cited in this decision

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

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)) Contrasted (cf., but see)The provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.

Similar decisions

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.
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.
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.
Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U))The provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing.
Top Choice Med., P.C. v Clarendon Natl. Ins. Co. (2015 NY Slip Op 50384(U))The parties' conflicting medical opinions raised a triable issue as to the medical necessity of the provider's services.