June 14, 2011
Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))
https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-utica-mut-ins-co-2011-ny-slip-op51119u/
- Decided
- June 14, 2011
- Citation
- 2011 NY Slip Op 51119(U) · 31 Misc 3d 150(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
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 Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. (2011 NY Slip Op 51119(U))
| Five Boro Psychological Servs., P.C. v Utica Mut. Ins. Co. |
| 2011 NY Slip Op 51119(U) [31 Misc 3d 150(A)] |
| Decided on June 14, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and RIOS, JJ
2010-179 K C.
against
Utica Mutual Insurance Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered August 27, 2009. The order denied defendant’s cross motion for summary judgment dismissing the complaint and its motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case, and granted plaintiff’s cross motion for a protective order.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and cross motion for a protective order are denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order which denied defendant’s cross motion for summary judgment dismissing the complaint, denied defendant’s motion to dismiss the complaint based upon plaintiff’s failure to comply with discovery demands, granted plaintiff’s cross motion for a protective order, and granted plaintiff’s motion for summary judgment to the extent of finding that plaintiff had established its prima facie case.
This action involves three claim forms for psychological services provided to plaintiff’s assignor. As to the claim form seeking to recover the sum of $120 dated May 22, 2006, the affidavit of defendant’s no-fault specialist established that defendant had timely requested additional verification of this claim (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff had failed to respond to defendant’s initial and follow-up requests. As a result, the 30-day period within which defendant was required to pay or deny the claim did not commence to run and, therefore, the cause of action relating to this bill is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 27 Misc 3d 131[A], 2010 NY Slip Op 50649[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). [*2]
With respect to the other two claims at issue in this lawsuit ($1,061.63 and $120), defendant established that it had timely denied these claims (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) on the ground that the services provided were not medically necessary. In support of its cross motion for summary judgment, defendant submitted, among other things, sworn peer review reports which set forth a factual basis and medical rationale for the opinion that there was a lack of medical necessity for the services for which payment was sought (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 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]). Plaintiff failed to rebut defendant’s evidence of the lack of medical necessity for these services. Consequently, defendant established its entitlement to summary judgment as to these two bills.
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion for summary judgment and its cross motion for a protective order are denied.
Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011
Legal questions (3)
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 sworn peer review reports set forth a factual basis and medical rationale for lack of medical necessity and the provider failed to rebut them, so the insurer won summary judgment on two bills.
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 unanswered verification requests make the provider’s claim premature, or justify denying it for nonresponse?
This decision: Timely requests went unanswered; the claim is not overdue and the action is premature
Held the provider failed to respond to the insurer's timely initial and follow-up verification requests, so the 30-day period never began and the cause of action on that bill was premature.
Of the 374 decisions on this question in the Second Department courts and the Court of Appeals, 151 (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 no-fault specialist's affidavit established timely verification requests and timely denials of the other two claims, with results resting on unanswered verification and unrebutted peer reviews.
Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 806 (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.
- Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 09484) FollowedAn insurer need not pay or deny a no-fault claim until it receives all relevant verification requested.
- D.S. Chiropractic, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50649(U)) FollowedThe provider's action was premature because requested verification remained outstanding despite follow-up requests mailed on the 30th day.
- 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.
Cited by
- Total Equip., LLC v Praetorian Ins. Co. (2011 NY Slip Op 21398)The provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion.
Similar decisions
- 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.
- Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co. (2012 NY Slip Op 51705(U))The diagnostic-interview claim presented a factual issue, while unrebutted peer review proof established lack of necessity for three other services.
- All Boro Psychological Servs., P.C. v Allstate Ins. Co. (2013 NY Slip Op 50069(U))The insurer's unanswered verification requests left the insurer's time to pay or deny untriggered, warranting dismissal of the action.
- Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co. (2011 NY Slip Op 51528(U))A denial form offered to show that a claim was denied, rather than to prove its contents, needs no CPLR 4518 business-record foundation.
- Quality Psychological Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2013 NY Slip Op 50063(U))The insurer's psychologist's peer review was inadmissible, and the provider failed to establish entitlement to summary judgment.