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April 16, 2010

Speciality Surgical Servs. v Travelers Ins. Co. (2010 NY Slip Op 50715(U))

https://www.beynensonlaw.com/case-law/speciality-surgical-servs-v-travelers-ins-co-2010-ny-slip-op-50715u/

Court
Appellate Term, Second Department
Decided
April 16, 2010
Citation
2010 NY Slip Op 50715(U) · 27 Misc 3d 134(A)
Posture
Trial
Outcome
Insurer prevailed
Later treatment
Followed in 9 later decisions (see Cited by)
Issues
Medical necessity Assignments and standing
Legal questions
Lack of medical necessity · Claimant's prima facie case at trial (see the maps)
Cite as
Speciality Surgical Servs. v Travelers Ins. Co., 27 Misc 3d 134(A), 2010 NY Slip Op 50715(U) (App Term, 2d Dept, 9th & 10th 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 insurer's unrebutted medical testimony and affirmed peer review report established that the services were not medically necessary. The Appellate Term, Second Department, reversed the provider's judgment after a nonjury trial and directed judgment for the insurer dismissing the complaint. The doctor's testimony and report supplied a factual basis and medical rationale for the medical-necessity defense. The insurer's separate standing challenge failed: the assignment named a different entity, but that discrepancy appeared on the assignment accompanying the claim. Because the insurer neither sought verification concerning the assignment nor denied the claim on that ground, it was precluded from litigating the defect under Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co.

Reported in New York Official Reports at Speciality Surgical Servs. v Travelers Ins. Co. (2010 NY Slip Op 50715(U))

[*1]
Speciality Surgical Servs. v Travelers Ins. Co.
2010 NY Slip Op 50715(U) [27 Misc 3d 134(A)]
Decided on April 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 16, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2009-786 S C.
Speciality Surgical Services as assignee of CLARA OCASIO, Respondent,

against

Travelers Insurance Company, Appellant.

Appeal from a judgment of the District Court of Suffolk County, Second District (Patrick J. Barton, J.), entered February 16, 2006. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $11,220.

ORDERED that the judgment is reversed without costs and judgment is directed to be entered in favor of defendant dismissing the complaint.

Plaintiff Specialty Surgical Services commenced this action to recover assigned first-party no-fault benefits for medical services rendered. After a nonjury trial, the District Court awarded judgment in favor of plaintiff in the principal sum of $11,220. The instant appeal by defendant ensued.

Defendant’s contention, that plaintiff lacks standing since the assignment executed by plaintiff’s assignor was in favor of North Jersey Center for Surgery rather than plaintiff, lacks merit. A copy of the assignment accompanied plaintiff’s claim form, and the discrepancy was apparent on its face. Defendant did not seek verification with respect to the assignment, and its denial of claim form did not deny the claim on the ground that the assignment was defective. Consequently, defendant is precluded from litigating this issue (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312 [2007]; Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]).

At trial, defendant’s doctor testified that the services provided were not medically necessary, and defendant also admitted into evidence a copy of the doctor’s affirmed peer review report, which was to the same effect. Both the doctor’s testimony and his report set forth a factual basis and medical rationale for his conclusion that the services rendered were not medical necessary. This evidence was not rebutted by plaintiff. In view of the foregoing, we disagree [*2]with the District Court’s finding that defendant failed to establish that the services provided were not medically necessary. Accordingly, the judgment is reversed and judgment is directed to be entered in favor of defendant dismissing the complaint (see Cohen v Hallmark Cards, Inc., 45 NY2d 493 [1978]; S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co., 20 Misc 3d 137[A]; 2008 NY Slip Op 51537[U] [App Term, 2d & 11th Jud Dists 2008]; see also 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]; 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]).

LaCava and Iannacci, JJ., concur.

Molia, J.P., taking no part.
Decision Date: April 16, 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, reversing a trial judgment, that the insurer's doctor's testimony and affirmed peer review set forth a factual basis and medical rationale for lack of medical necessity and were unrebutted, so judgment was directed for the insurer.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 521
  • Trial courtsTrial 87
2022, Appellate Division: 2 decisions (2 Insurer's proof insufficient)2020, Appellate Division: 1 decision (1 Provider's rebuttal sufficient)2019, Appellate Division: 1 decision (1 Insurer's proof insufficient)2016, Appellate Division: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2008, Appellate Division: 1 decision (1 Insurer's proof insufficient)2007, Appellate Division: 2 decisions (2 Insurer raised triable issue)2023, Appellate Term: 1 decision (1 Provider's rebuttal sufficient)2022, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2020, Appellate Term: 5 decisions (1 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 1 Trial error, new trial)2019, Appellate Term: 15 decisions (8 Unrebutted, insurer prevails, 4 Insurer's proof insufficient, 3 Trial error, new trial)2018, Appellate Term: 13 decisions (7 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 4 Trial error, new trial)2017, Appellate Term: 20 decisions (5 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 7 Trial error, new trial)2016, Appellate Term: 28 decisions (16 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 3 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 22 decisions (9 Unrebutted, insurer prevails, 9 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2014, Appellate Term: 40 decisions (16 Unrebutted, insurer prevails, 22 Provider's rebuttal sufficient, 1 Insurer's proof insufficient, 1 Trial error, new trial)2013, Appellate Term: 57 decisions (40 Unrebutted, insurer prevails, 12 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2012, Appellate Term: 76 decisions (54 Unrebutted, insurer prevails, 10 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 5 Insurer's proof insufficient, 5 Trial error, new trial)2011, Appellate Term: 56 decisions (42 Unrebutted, insurer prevails, 6 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 2 Insurer's proof insufficient, 4 Trial error, new trial)2010, Appellate Term: 66 decisions (50 Unrebutted, insurer prevails, 5 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 2 Insurer's proof insufficient)2009, Appellate Term: 32 decisions (17 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 4 Insurer's proof insufficient)2008, Appellate Term: 29 decisions (14 Unrebutted, insurer prevails, 9 Insurer raised triable issue, 6 Insurer's proof insufficient)2007, Appellate Term: 9 decisions (3 Unrebutted, insurer prevails, 3 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2006, Appellate Term: 20 decisions (1 Unrebutted, insurer prevails, 11 Insurer raised triable issue, 8 Insurer's proof insufficient)2005, Appellate Term: 16 decisions (6 Insurer raised triable issue, 10 Insurer's proof insufficient)2004, Appellate Term: 10 decisions (1 Insurer raised triable issue, 9 Insurer's proof insufficient)2003, Appellate Term: 1 decision (1 Insurer raised triable issue)2022, Trial courts: 6 decisions (4 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2021, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2017, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2015, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2014, Trial courts: 3 decisions (2 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2013, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Trial error, new trial)2012, Trial courts: 7 decisions (4 Unrebutted, insurer prevails, 3 Insurer's proof insufficient)2011, Trial courts: 4 decisions (4 Insurer's proof insufficient)2010, Trial courts: 10 decisions (2 Unrebutted, insurer prevails, 7 Insurer's proof insufficient, 1 Trial error, new trial)2009, Trial courts: 5 decisions (2 Unrebutted, insurer prevails, 2 Insurer raised triable issue, 1 Insurer's proof insufficient)2008, Trial courts: 11 decisions (6 Unrebutted, insurer prevails, 5 Insurer's proof insufficient)2007, Trial courts: 5 decisions (1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2006, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2005, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2004, Trial courts: 8 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 5 Insurer's proof insufficient, 1 Trial error, new trial)2003, Trial courts: 1 decision (1 Insurer's proof insufficient)2026, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2025, Trial courts: 1 decision (1 Unrebutted, insurer prevails)This decision
20052010201520202025
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. One decision in other departments that cites or is cited by this one is on the full map.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Claimant's trial proof held to make out its prima facie case (rules on the question, but another ground decided the case)

Held the provider need not establish a valid assignment at trial because the insurer, though the defect was apparent on the assignment sent with the claim, neither sought verification nor denied the claim on that ground.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 64
  • Trial courtsTrial 36
2008, Appellate Division: 1 decision (1 Other element missing)2006, Appellate Division: 1 decision (1 Other element missing)2010, Appellate Division: 1 decision (1 Business-record foundation lacking)2019, Appellate Term: 12 decisions (1 Proof sufficient, 11 Other element missing)2016, Appellate Term: 6 decisions (2 Proof sufficient, 4 Other element missing)2015, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2014, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Appellate Term: 8 decisions (4 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 2 Other element missing)2012, Appellate Term: 1 decision (1 Mailing/receipt not shown)2011, Appellate Term: 2 decisions (1 Overdue not shown, 1 Other element missing)2010, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Appellate Term: 11 decisions (1 Proof sufficient, 1 Overdue not shown, 9 Business-record foundation lacking)2008, Appellate Term: 1 decision (1 Business-record foundation lacking)2006, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2007, Appellate Term: 1 decision (1 Business-record foundation lacking)2017, Appellate Term: 3 decisions (3 Other element missing)2018, Appellate Term: 3 decisions (3 Other element missing)2020, Appellate Term: 2 decisions (1 Proof sufficient, 1 Other element missing)2022, Appellate Term: 1 decision (1 Other element missing)2025, Appellate Term: 1 decision (1 Other element missing)2017, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Trial courts: 2 decisions (1 Business-record foundation lacking, 1 Other element missing)2011, Trial courts: 1 decision (1 Mailing/receipt not shown)2010, Trial courts: 4 decisions (4 Proof sufficient)2008, Trial courts: 5 decisions (2 Proof sufficient, 1 Overdue not shown, 2 Business-record foundation lacking)2007, Trial courts: 2 decisions (1 Proof sufficient, 1 Business-record foundation lacking)2006, Trial courts: 9 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 1 Other element missing)2004, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2005, Trial courts: 1 decision (1 Proof sufficient)2009, Trial courts: 1 decision (1 Proof sufficient)2021, Trial courts: 1 decision (1 Proof sufficient)2022, Trial courts: 1 decision (1 Other element missing)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 40 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2007 NY Slip Op 09067) FollowedAn insurer that fails to timely seek verification of an assignment cannot later contest its validity when the underlying claim is covered.
  • Davydov v Progressive Ins. Co. (2009 NY Slip Op 29299) FollowedThe insurer's assignment defense was precluded because it neither sought verification of the facial discrepancy nor denied on that ground.
  • S.J. Pahng, M.D., P.C. v Progressive Northeastern Ins. Co. (2008 NY Slip Op 51537(U)) FollowedThe provider's challenge to an allegedly inadequate judgment failed because unrebutted peer-review testimony established lack of medical necessity.
  • Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U))The insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
  • A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))The 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.

  • Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52062(U)) FollowedThe insurer's chiropractor supplied a sufficient medical rationale and factual basis for finding the services medically unnecessary.
  • Amato v State Farm Ins. Co. (2013 NY Slip Op 51113(U)) FollowedThe insurer's IME testimony established lack of medical necessity, and the provider offered no evidence that later treatment was necessary.
  • Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50155(U)) FollowedThe insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing.
  • Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52061(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue.
  • All Is. Med. Care, P.C. v State Farm Mut. Auto. Ins. Co. (2011 NY Slip Op 52227(U)) FollowedThe insurer's doctor's testimony and peer review report established at trial that the services lacked medical necessity.
  • Hilltop Med. Diagnostic & Treatment Ctr. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52388(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable issue.
  • Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U)) FollowedThe provider failed to submit medical evidence raising a triable issue in response to the insurer's sufficient medical-necessity peer review.
  • Elmont Open MRI & Diagnostic Radiology, P.C. v Tri-State Ins. Co. (2012 NY Slip Op 50170(U)) FollowedAn insurer need not annex the medical records reviewed by its peer review doctor to establish lack of medical necessity.
  • Cappello v Global Liberty Ins. Co. of N.Y. (2017 NY Slip Op 51415(U)) FollowedThe insurer's unrebutted peer review testimony established that electromyography and nerve conduction testing lacked medical necessity.
  • Ayoob Khodadadi, M.D.,MRI, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51968(U))The insurer's peer review reports established lack of medical necessity, and the provider submitted no medical evidence raising a triable issue.

Similar decisions

  • SI Med. & Surgical Supply, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50054(U))The insurer's peer reviews established lack of medical necessity for the supplies, and the provider did not rebut that showing.
  • Radiology Today, P.C. v Travelers Ins. Co. (2013 NY Slip Op 50849(U))The insurer's conclusory expert testimony failed to establish lack of medical necessity because it supplied no factual basis or medical rationale.
  • Advanced Med. Diagnostics of Queens, P.C. v GEICO Ins. Co. (2013 NY Slip Op 52004(U))The insurer's unrebutted sworn peer review established that the services lacked medical necessity.
  • Bronx Park Med., P.C. v Clarendon Natl. Ins. Co. (2014 NY Slip Op 51832(U))The insurer's unrebutted peer review established a factual basis and medical rationale for denying the services as medically unnecessary.
  • Bath Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 50189(U))The insurer's peer reviews established lack of medical necessity, and the provider failed to offer a meaningful rebuttal.
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