November 19, 2010

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2010 NY Slip Op 52022(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-interboro-ins-co-2010-ny-slip-op52022u/

Court: Appellate Term, Second Department
Decided: November 19, 2010
Citation: 2010 NY Slip Op 52022(U) · 29 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Medical necessity Verification requests
Legal questions: Lack of medical necessity · Outstanding verification and premature actions · Proof of mailing (see the maps)

Cite as

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 29 Misc 3d 137(A), 2010 NY Slip Op 52022(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010)

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 provider waived the defect in a chiropractor's affirmed peer review by failing to object in Civil Court. The Appellate Term, Second Department, reversed the judgment, vacated the relevant summary judgment rulings, denied the provider judgment on the first and third causes of action, and granted the insurer's cross motion dismissing both. The first claim was timely denied for lack of medical necessity, and the peer review supplied an unrebutted factual basis and medical rationale. Although affirmed rather than sworn as required under CPLR 2106, its defect was waived. The third claim was premature because timely initial and follow-up verification requests remained unanswered, so the 30-day payment-or-denial period had not begun. The court did not review the uncontested provider prima facie finding.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Interboro Ins. Co. (2010 NY Slip Op 52022(U))

[*1]

Delta Diagnostic Radiology, P.C. v Interboro Ins. Co.

2010 NY Slip Op 52022(U) [29 Misc 3d 137(A)]

Decided on November 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 19, 2010

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : WESTON, J.P., RIOS and STEINHARDT, JJ
2009-2023 K C.

Delta Diagnostic Radiology, P.C. as Assignee of NICOLA DIANA, Respondent,
against
Interboro Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered May 11, 2009, deemed from a judgment of the same court entered June 15, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the order entered May 11, 2009, which, inter alia, granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,790.67.

ORDERED that the judgment is reversed, without costs, so much of the order entered May 11, 2009 as granted the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon the first and third causes of action are denied, and the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action are granted.

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 May 11, 2009 insofar as it granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s first and third causes of action and denied the branches of defendant’s cross motion seeking summary judgment dismissing said causes of action. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Inasmuch as defendant raises no issue on appeal regarding whether plaintiff established its prima facie entitlement to summary judgment, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.

The affidavit of defendant’s claims representative established that defendant timely requested additional verification of the claim at issue in the third cause of action and that plaintiff failed to respond to defendant’s initial and follow-up requests (see St. Vincent’s Hosp. of [*2]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]). 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 third cause of action 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]). Consequently, the branch of defendant’s cross motion seeking to dismiss the third cause of action should have been granted.

Defendant timely denied the claim at issue in the first cause of action on the ground of lack of medical necessity (St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Residential Holding Corp., 286 AD2d 679; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16). In support of its cross motion, defendant also submitted an affirmed peer review report from defendant’s chiropractor, which set forth a factual basis and medical rationale for the conclusion that the services rendered were not medically necessary. The chiropractor’s peer review report was affirmed (cf. CPLR 2106) instead of being sworn to before a notary public. However, inasmuch as plaintiff did not submit papers in opposition to defendant’s cross motion for summary judgment, plaintiff waived such defect by failing to object to it in the Civil Court (see Akamnonu v Rodriguez, 12 AD3d 187 [2005]; Scudera v Mahbubur, 299 AD2d 535 [2002]; Continental Med., P.C. v Mercury Cas. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50234[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As plaintiff failed to rebut the conclusion set forth in the peer review report, the branch of defendant’s cross motion seeking to dismiss the first cause of action should have been granted.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: November 19, 2010

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.

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: Insurer's proof established lack of medical necessity and the provider failed to rebut it

Held the chiropractor's affirmed peer review set forth a factual basis and medical rationale, the provider waived the affirmation defect by not opposing, and its failure to rebut entitled the insurer to dismissal.

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

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.

Outstanding verification and premature actions

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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 ran and the third cause of action was premature.

Premature: verification outstandingNonresponse denial upheldTriable issueInsurer's showing failsProvider compliedThis decisionCites it or cited by itCited or followed

Of the 385 decisions on this question in the Second Department courts and the Court of Appeals, 153 (this one included) are in the same category.

Proof of mailing

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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 claims representative's affidavit established timely verification requests and a timely medical-necessity denial, with results resting on unanswered verification and the unrebutted peer review.

Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followed

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.
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.
Continental Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50234(U)) FollowedThe provider waived its objection to the chiropractor's affirmed IME report by failing to raise the defect in Civil Court.

Cited by

A label shows how the later decision treated this one.

Richmond Radiology, P.C. v State Farm Ins. Co. (2012 NY Slip Op 51293(U)) FollowedThe treating chiropractor's affirmed letter raised a medical-necessity issue, and the insurer waived its objection to the letter's form.

Similar decisions

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U))The insurer's summary judgment award was vacated because medical necessity was not an issue raised by the provider's motion.
Delta Diagnostic Radiology, P.C. v American Mfrs. Mut. Ins. Co. (2006 NY Slip Op 51439(U))The insurer raised a triable issue of medical necessity through detailed peer reviews and timely denials following verification.
Vincent Med. Servs., P.C. v GEICO Ins. Co. (2010 NY Slip Op 52153(U))The insurer established lack of medical necessity for six claims but failed to substantiate fee-schedule reductions or timely denial of another claim.
Ortho-Med Surgical Supply, Inc. v Progressive Cas. Ins. Co. (2012 NY Slip Op 50149(U))An insurer need not attach the records reviewed by its peer reviewer to establish lack of medical necessity on summary judgment.
Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2010 NY Slip Op 50597(U))The insurer justified its appearance default and established an unrebutted medical-necessity defense, supporting vacatur and dismissal.