November 19, 2010

Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))

https://www.beynensonlaw.com/case-law/crotona-hgts-med-p-c-v-mercury-ins-co-2010-ny-slip-op-52019u/

Court: Appellate Term, Second Department
Decided: November 19, 2010
Citation: 2010 NY Slip Op 52019(U) · 29 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Split result
Issues: Medical necessity
Legal questions: Lack of medical necessity · Proof of mailing (see the maps)

Cite as

Crotona Hgts. Med., P.C. v Mercury Ins. Co., 29 Misc 3d 137(A), 2010 NY Slip Op 52019(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.

A physician who is a principal of the provider corporation may not submit an affirmation under CPLR 2106 in its action. The Appellate Term, Second Department, modified the order, insofar as appealed from, to grant the insurer summary judgment dismissing the second, third, fifth and eighth causes of action. Timely denials and affirmed peer reviews established lack of medical necessity for those services. Because the insurer objected to the principal's affirmation, its factual assertions should not have been considered, leaving no admissible rebuttal evidence. Denial of the insurer's motion remained in place on the sixth cause of action because neither peer review addressed those services, so the insurer failed to shift the burden on that claim.

Reported in New York Official Reports at Crotona Hgts. Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 52019(U))

[*1]

Crotona Hgts. Med., P.C. v Mercury Ins. Co.

2010 NY Slip Op 52019(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-1873 Q C.

Crotona Heights Medical, P.C. as Assignee of BRENCY PAULINO, Respondent,
against
Mercury Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered June 19, 2009. The order, insofar as appealed from as limited by the brief, denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted; as so modified, the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground,
among others, that the services provided were not medically necessary, and plaintiff cross-moved for summary judgment. Defendant appeals, as limited by its brief, from so much of the Civil Court’s order as denied the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth, sixth and eighth causes of action.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely denied the bills relating to plaintiff’s second, third, fifth, sixth and eighth causes of action on the ground of lack of medical necessity (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]). Moreover, defendant annexed to its motion papers affirmed peer review reports, which set forth a factual basis and medical rationale for the peer reviewers’ determinations that the services at issue in the second, third, fifth and eighth causes of action were not medically necessary. Consequently, defendant established its prima facie entitlement to summary judgment with regard to these causes of action (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 & [*2]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]). However, defendant’s motion papers did not shift the burden with respect to plaintiff’s sixth cause of action since neither of the peer review reports submitted referred to the services set forth in plaintiff’s sixth cause of action.

In opposition to the motion, plaintiff submitted an affirmation executed by its principal, Dr. Cordaro. Defendant objected to that affirmation in its reply papers, citing CPLR 2106. The submission of Dr. Cordaro’s affirmation was improper because Dr. Cordaro is a principal of plaintiff professional corporation, which is a party to the action (see CPLR 2106; St. Vincent Med. Care, P.C. v Mercury Cas. Co., 23 Misc 3d 135[A], 2009 NY Slip Op 50810[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Samuel & Weininger v Belovin & Franzblau, 5 AD3d 466 [2004]; Pisacreta v Minniti, 265 AD2d 540 [1999]; Richard M. Gordon & Assoc., P.C. v Rascio, 12 Misc 3d 131[A], 2006 NY Slip Op 51055[U] [App Term, 2d & 11th Jud Dists 2006]), and the Civil Court should not have considered any facts set forth in that affirmation (see Pisacreta, 265 AD2d 540). Thus, plaintiff failed to proffer any evidence in admissible form which raised an issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s second, third, fifth and eighth causes of action are granted.

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

Legal questions (2)

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 affirmed peer reviews established lack of medical necessity for four causes of action and the provider's principal's affirmation was inadmissible under CPLR 2106, though one claim survived because no report addressed it.

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.

Proof of mailing

Open the full map

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 insurer's affidavit established that it timely denied the bills at issue on medical-necessity grounds, a finding of timely mailing, while the result turned on the peer reviews.

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.
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.
St. Vincent Med. Care, P.C. v Mercury Cas. Co. (2009 NY Slip Op 50810(U)) FollowedThe provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's medical-necessity showing.

Similar decisions

Crotona Hgts. Med., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50473(U))The provider's claims failed because verification remained outstanding and its medical evidence did not rebut the insurer's peer reviews.
Crotona Hgts. Med., P.C. v GEICO Ins. Co. (2009 NY Slip Op 52466(U))The insurer's unrebutted peer review established lack of medical necessity for the provider's third and fourth causes of action.
Crotona Hgts. Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51859(U))The insurer proved lack of medical necessity for seven claims but failed to establish defenses to the remaining two.
High Quality Med., P.C. v Mercury Ins. Co. (2010 NY Slip Op 51900(U))The provider's principal's affirmation was inadmissible under CPLR 2106 and failed to rebut the insurer's IME conclusions.
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.