April 2, 2010
Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2010 NY Slip Op 50597(U))
https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-liberty-mut-ins-co-2010-ny-slip-op50597u/
- Decided
- April 2, 2010
- Citation
- 2010 NY Slip Op 50597(U) · 27 Misc 3d 129(A)
- Posture
- Default or vacatur
- Outcome
- Insurer prevailed
- Legal questions
- Lack of medical necessity · Vacating a default: excuse and defense · Proof of mailing (see the maps)
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 Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. (2010 NY Slip Op 50597(U))
| Delta Diagnostic Radiology, P.C. v Liberty Mut. Ins. Co. |
| 2010 NY Slip Op 50597(U) [27 Misc 3d 129(A)] |
| Decided on April 2, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., GOLIA and RIOS, JJ
2009-103 K C.
against
Liberty Mutual Insurance Company, Respondent
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered May 12, 2008. The order granted defendant’s motion to vacate a judgment and the underlying order granting plaintiff’s prior motion for summary judgment on default, and, upon such vacatur, in effect, granted defendant’s prior cross motion for summary judgment.
ORDERED that the order is affirmed without costs.
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 failed to appear on the return date of the motion, and plaintiff’s motion was granted on default. A judgment was subsequently entered pursuant to the order. Thereafter, defendant moved to vacate the default judgment and the underlying order. The Civil Court granted defendant’s motion and, upon vacating the judgment and order, in effect granted defendant’s prior cross motion for summary judgment dismissing the complaint.
In order to vacate the judgment and underlying order pursuant to CPLR 5015 (a) (1), defendant was required to establish both a reasonable excuse for its default and a meritorious defense to the action (see e.g. Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Mora v Scarpitta, 52 AD3d 663 [2008]). Defendant provided a reasonable excuse for its default in appearing by its attorney’s affirmation, which sufficiently justified the default and included a detailed explanation of the oversight (see Incorporated Vil. of Hempstead v Jablonsky, 283 AD2d 553, 554 [2001]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 433 [2004]; cf. A.B. Med. Servs., P.C. v GLI Corp. Risk Solutions, Inc., 25 Misc 3d 137[A], 2009 NY Slip Op 52322[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Defendant [*2]also established a meritorious defense to the action, as the affidavit of its claims specialist showed that defendant had timely and properly mailed the NF-10 denial of claim forms and verification request, by describing, in detail, based on the affiant’s personal knowledge, defendant’s standard office practices and procedures used to ensure that such documents were properly addressed and mailed (see 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]). In addition, affirmed peer review reports were annexed to defendant’s cross motion, which made a prima facie showing that the services provided were not medically necessary. Plaintiff failed to rebut this showing, and its remaining contentions lack merit.
Consequently, the Civil Court did not improvidently exercise its discretion in vacating the default judgment and order, and, upon vacatur, properly, in effect, granted defendant’s prior cross motion for summary judgment dismissing the complaint (see e.g. Vista Surgical Supplies, Inc. v GEICO Ins. Co., 23 Misc 3d 133[A], 2009 NY Slip Op 50739[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]). Accordingly, the order is affirmed.
Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: April 02, 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.
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 made a prima facie showing of no medical necessity that the provider failed to rebut, supporting vacatur of the default and summary judgment for the insurer.
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 defaulting party show a reasonable excuse (or lack of notice) and a potentially meritorious defense or claim?
This decision: Excuse (or lack of actual notice under CPLR 317) and potentially meritorious defense or claim shown; default vacated or late answer allowed
Upheld vacatur because the insurer's attorney's affirmation gave a detailed explanation of the oversight causing its nonappearance, and its claims specialist's affidavit showed timely mailed denials and verification requests, a meritorious defense.
Of the 170 decisions on this question in the Second Department courts and the Court of Appeals, 67 (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 claims specialist's detailed, personal-knowledge description of standard office practices showed timely and proper mailing of the denials and verification request, supporting a meritorious defense.
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.
- Hospital for Joint Diseases v ELRAC, Inc. (2004 NY Slip Op 07140) FollowedAn unanswered verification demand tolls the 30-day payment-or-denial period under 11 NYCRR 65.15 (g) (1) (i).
- 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.
- Vista Surgical Supplies, Inc. v GEICO Ins. Co. (2009 NY Slip Op 50739(U))A denial form is not invalid for omitting irrelevant sections if it is approved and specifically identifies the medical-necessity defense.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U))The insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
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 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.
- 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.
- 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.
- Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2014 NY Slip Op 51240(U))The insurer's examiner affidavit established that it had not issued a policy covering the accident.