December 8, 2010
Vincent Med. Servs., P.C. v GEICO Ins. Co. (2010 NY Slip Op 52153(U))
https://www.beynensonlaw.com/case-law/vincent-med-servs-p-c-v-geico-ins-co-2010-ny-slip-op-52153u/
- Decided
- December 8, 2010
- Citation
- 2010 NY Slip Op 52153(U) · 29 Misc 3d 141(A)
- Posture
- Summary judgment
- Outcome
- Split result
- Later treatment
- Followed in 2 later decisions (see Cited by)
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 Vincent Med. Servs., P.C. v GEICO Ins. Co. (2010 NY Slip Op 52153(U))
| Vincent Med. Servs., P.C. v GEICO Ins. Co. |
| 2010 NY Slip Op 52153(U) [29 Misc 3d 141(A)] |
| Decided on December 8, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-1634 Q C.
against
GEICO Ins. Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered June 5, 2009, deemed from a judgment of the same court entered June 19, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the June 5, 2009 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $5,600.38.
ORDERED that the judgment is reversed, without costs, so much of the order entered June 5, 2009 as granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment with respect to these causes of action are denied, defendant’s cross motion for summary judgment dismissing these causes of action is granted and the matter is remitted to the Civil Court for the calculation of statutory interest and an assessment of attorney’s fees with respect to the first, second, third and fifth causes of action and for the entry of judgment thereon.
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. Defendant appeals from an order entered June 5, 2009 granting plaintiff’s motion and
denying defendant’s cross motion. A judgment was subsequently entered, from which the appeal
is deemed to be taken (see CPLR
5501 [c]).
Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]that the documents annexed to plaintiff’s motion were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Since the affidavit of defendant’s claims representative conceded receipt of the claim forms at issue, plaintiff made a prima facie showing of its entitlement to summary judgment (see East Acupuncture, P.C. v Electric Ins. Co., 16 Misc 3d 128[A], 2007 NY Slip Op 51281[U] [App Term, 2d & 11th Jud Dists 2007]; Oleg Barshay, D.C., P.C. v State Farm Ins. Co., 14 Misc 3d 74 [App Term, 2d & 11th Jud Dists 2006]).
The affidavit submitted by defendant, in opposition to plaintiff’s motion and in support of its own cross motion for summary judgment, established that defendant’s denial of claim forms pertaining to the claims at issue in the first, second, third, fourth, sixth, seventh, eighth, ninth and tenth causes of action were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, the affidavit failed to address defendant’s denial of claim form pertaining to the claim at issue in plaintiff’s fifth cause of action. Consequently, defendant did not establish that said denial of claim form was timely mailed and, as a result, defendant is precluded from raising its proffered defenses with respect to plaintiff’s fifth cause of action (see Presbyterian Hosp. in City of NY v Maryland Cas. Co., 90 NY2d 274, 282 [1997]; St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16).
The claims at issue in plaintiff’s first, second and third causes of action were denied on the ground that the fees charged were in excess of the workers’ compensation fee schedule. The claims at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were denied on the ground of lack of medical necessity. Defendant’s cross motion for summary judgment dismissing the complaint and its opposition to plaintiff’s motion for summary judgment were based on the foregoing defenses.
To the extent that defendant asserted that the fees charged were not in conformity with the workers’ compensation fee schedule, defendant did not specify the actual reimbursement rates which formed the basis for its determination that plaintiff had billed in excess of the maximum amount permitted (see generally Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant failed to raise a triable issue of fact, and plaintiff was properly awarded summary judgment, with respect to the first, second and third causes of action.
Defendant submitted an affirmed peer review report and an affirmed independent medical examination (IME) report, each of which set forth a factual basis and medical rationale for the conclusion that the treatments at issue in plaintiff’s fourth, sixth, seventh, eighth, ninth and tenth causes of action were not medically necessary. The affidavit of plaintiff’s treating doctor, submitted in opposition to defendant’s cross motion for summary judgment, was insufficient to demonstrate the existence of a triable issue of fact as to the medical necessity of the services rendered, as it did not meaningfully refer to, let alone rebut, the conclusions set forth in the IME and peer review reports (Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 [*3]NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, the branches of defendant’s cross motion seeking summary judgment dismissing the fourth, sixth, seventh, eighth, ninth and tenth causes of action on the ground of lack of medical necessity should have been granted (see Innovative Chiropractic, P.C. v Mercury Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52321[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).
Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: December 08, 2010
Legal questions (4)
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 a party’s evidence establish that it mailed a no-fault claim, denial, verification request or examination notice?
This decision: Different mailing results for different documents or claims in one decision
Held the insurer's standard-office-practice affidavit proved timely mailing of the denials for most claims, but because it did not address the denial for one claim, mailing of that denial was not shown and defenses to it were precluded.
Of the 1,400 decisions on this question in the Second Department courts and the Court of Appeals, 55 (this one included) are in the same category.
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 and IME reports set out a factual basis and medical rationale, and the treating doctor's affidavit did not meaningfully refer to or rebut them, so the insurer was granted summary judgment on those claims.
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 the insurer prove that the amount billed exceeded the applicable workers’ compensation fee schedule?
This decision: Court finally rejected the fee schedule defense; provider recovers the disputed amount
Held the insurer failed to raise a triable issue on its fee schedule defense because it did not specify the actual reimbursement rates underlying its reduction, so the provider was properly awarded summary judgment on those claims.
Of the 285 decisions on this question in the Second Department courts and the Court of Appeals, 29 (this one included) are in the same category.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Claimant's proof held to make out its prima facie case (rules on the question, but another ground decided the case)
Held the provider made its prima facie showing because its billing manager's affidavit made the annexed documents admissible under CPLR 4518 and the insurer's claims representative conceded receipt of the claim forms.
Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co. (2008 NY Slip Op 07846) FollowedThe providers failed to establish a prima facie case because they did not demonstrate the admissibility of their billing records.
- Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
- East Acupuncture, P.C. v Electric Ins. Co. (2007 NY Slip Op 51281(U)) FollowedThe insurer's late denials did not bar its coverage defense, and its evidence raised a triable issue of a staged incident.
- Oleg Barshay, D.C., P.C. v State Farm Ins. Co. (2006 NY Slip Op 26496) FollowedA provider's deficient proof of claim submission may be cured by an insurer's denial form submitted in opposition to summary judgment.
- 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.
- Rogy Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50732(U))The insurer's peer review report was not competent evidence, and its fee-schedule proof was insufficient.
- 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.
- Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U)) FollowedThe insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
- 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
A label shows how the later decision treated this one.
- Total Equip., LLC v Praetorian Ins. Co. (2011 NY Slip Op 21398) FollowedThe provider established a need for discovery of the no-fault file before opposing the insurer's medical-necessity motion.
- Boulevard Multispec Med., P.C. v Tri-State Consumer Ins. Co. (2014 NY Slip Op 24080) FollowedAn IME nonappearance supports denial only if there is some relationship between the missed IME and the treatment at issue.
Similar decisions
- Vincent Med. Servs., P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50431(U))The insurer's unrebutted IME reports established lack of medical necessity for the first through third and sixth through tenth causes of action.
- Compas Med., P.C. v GEICO Ins. Co. (2014 NY Slip Op 51857(U))The insurer proved lack of medical necessity for one claim but failed to establish its payment, late-submission and fee-schedule defenses.
- St. Vincent Med. Care, P.C. v Country-Wide Ins. Co. (2010 NY Slip Op 50444(U))Unanswered verification requests rendered seven claims premature, while separate-reimbursement denials raised factual issues on two others.
- Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2010 NY Slip Op 52022(U))The provider waived the defect in a chiropractor's affirmed peer review by failing to object in Civil Court.
- St. Vincent Med. Care, P.C. v Country Wide Ins. Co. (2010 NY Slip Op 50488(U))Unanswered verification requests kept eight claims premature despite a follow-up mailed before the full response period expired.