October 27, 2011
Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))
https://www.beynensonlaw.com/case-law/complete-radiology-p-c-v-progressive-ins-co-2011-ny-slip-op52015u/
- Decided
- October 27, 2011
- Citation
- 2011 NY Slip Op 52015(U) · 33 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Legal questions
- Lack of medical necessity (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 Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))
| Complete Radiology, P.C. v Progressive Ins. Co. |
| 2011 NY Slip Op 52015(U) [33 Misc 3d 135(A)] |
| Decided on October 27, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : PESCE, P.J., WESTON and RIOS, JJ
.
against
Progressive Insurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered May 17, 2010. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.
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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court, in effect, denied both motions, holding, pursuant to CPLR 3212 (g), among other things, that the sole issue to be determined at trial was the medical necessity of the services rendered. This appeal by plaintiff ensued.
The Civil Court did not improvidently exercise its discretion when it considered defendant’s untimely cross motion as plaintiff submitted opposition to the cross motion and failed to demonstrate that it had suffered any prejudice as a result of defendant’s delay (see A.M. Med. Servs., P.C. v GEICO Ins. Co., 23 Misc 3d 141[A], 2009 NY Slip Op 51029 [U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Vallorani v Kane, 20 Misc 3d 138[A], 2008 NY Slip Op 51559[U] [App Term, 2d & 11th Jud Dists 2008]).
In papers submitted in support of its cross motion for summary judgment dismissing the complaint, and in opposition to plaintiff’s motion for summary judgment, defendant included an affirmed peer review report which set forth a factual basis and medical rationale for the peer reviewer’s opinion that there was a lack of medical necessity for the services rendered (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d & 11th Jud Dists 2009]). Consequently, the Civil Court properly denied plaintiff’s motion.
We decline defendant’s request that we search the record and grant defendant summary judgment.
Accordingly, the order, insofar as appealed from, is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 27, 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.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win
Held the insurer's affirmed peer review report, setting forth a factual basis and medical rationale, properly defeated the provider's summary judgment motion, while declining to search the record and grant the insurer judgment.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- A.M. Med. Servs., P.C. v GEICO Ins. Co. (2009 NY Slip Op 51029(U)) FollowedThe insurer failed to establish a breached deposition stipulation because it did not show that a deposition had been scheduled.
- 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
- Complete Radiology, P.C. v GEICO Ins. Co. (2010 NY Slip Op 52158(U))The insurer's affirmed peer review established lack of medical necessity, and the provider did not rebut that showing.
- Radiology Imaging of Queens v Progressive Ins. (2011 NY Slip Op 51860(U))The insurer's unopposed peer review and timely denial established entitlement to dismissal for lack of medical necessity.
- Radiology Today, P.C. v Progressive Ins. Co. (2011 NY Slip Op 51724(U))The insurer's expert should have been permitted to testify although that expert did not prepare the peer review underlying the denial.
- Manhattan Med. Imaging, P.C. v Praetorian Ins. Co. (2011 NY Slip Op 51541(U))The insurer's unrebutted peer review supplied a factual basis and medical rationale establishing lack of medical necessity.
- Radiology Today, P.C. v Mercury Ins. Co. (2010 NY Slip Op 52020(U))The provider's doctor's affirmation failed to rebut the peer reviews and did not warrant changing the summary judgment result on reargument.