June 29, 2009

Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U))

https://www.beynensonlaw.com/case-law/westchester-neurodiagnostic-p-c-v-allstate-ins-co-2009-ny-slip-op51385u/

Court: Appellate Term, Second Department
Decided: June 29, 2009
Citation: 2009 NY Slip Op 51385(U) · 24 Misc 3d 133(A)
Posture: Summary judgment
Outcome: Provider prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Timeliness and preclusion Provider's prima facie case Assignments and standing
Legal questions: Proof of mailing · Claimant's prima facie case on motions · Challenging the assignment of benefits (see the maps)

Cite as

Westchester Neurodiagnostic, P.C. v Allstate Ins. Co., 24 Misc 3d 133(A), 2009 NY Slip Op 51385(U) (App Term, 2d Dept, 9th & 10th Jud Dists 2009)

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 failed to establish that its medical necessity defense was preserved by timely mailing of the denial. The Appellate Term, Second Department, reversed the order, granted the provider summary judgment, and remitted for statutory interest and attorney's fees under Insurance Law § 5106 (a). The insurer supplied no affidavit from a person with knowledge establishing timely mailing through standard office procedures. Its business records challenge was raised for the first time on appeal and was not reached; the court did not pass on the finding that the provider established its prima facie case. Proof of the assignment of benefits form was not an element of that case.

Reported in New York Official Reports at Westchester Neurodiagnostic, P.C. v Allstate Ins. Co. (2009 NY Slip Op 51385(U))

[*1]

Westchester Neurodiagnostic, P.C. v Allstate Ins. Co.

2009 NY Slip Op 51385(U) [24 Misc 3d 133(A)]

Decided on June 29, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 29, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

PRESENT: : RUDOLPH, P.J., MOLIA and SCHEINKMAN, JJ
2008-1436 N C.

Westchester Neurodiagnostic, P.C. a/a/o MICHELLE COOLEY, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the District Court of Nassau County, Third District (Rhonda E. Fischer, J.), entered June 9, 2008. The order denied plaintiff’s motion for summary judgment.

Order reversed without costs, plaintiff’s motion for summary judgment granted, and matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition to the motion, defendant argued that plaintiff had failed to make out a prima facie case in that plaintiff had failed to prove the admissibility of the assignment of benefits form and that, in any event, defendant had denied plaintiff’s claim on the ground of lack of medical necessity. The District Court denied plaintiff’s motion for summary judgment, finding that the peer review report demonstrated the existence of a triable issue of fact as to medical necessity. This appeal by plaintiff ensued.

Defendant asserts that the affidavit submitted by plaintiff’s billing manager was insufficient to establish that the documents annexed to plaintiff’s motion were admissible as business records. However, this argument is raised for the first time on appeal, and we decline to reach it (see Nyack Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 133[A], 2008 NY Slip Op 52184[U] [App Term, 9th & 10th Jud Dists 2008]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As a result, we do not pass upon the propriety of the District Court’s determination that plaintiff established its prima facie case. We note that, contrary to defendant’s contention, proof of the assignment of benefits form is not an element of plaintiff’s prima facie case (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [*2][2004]).

In opposition to the motion, defendant failed to submit an affidavit, by one with personal knowledge of the facts, establishing that defendant timely mailed its denial of claim form based upon a standard office practice or procedure designed to ensure that items are properly addressed and mailed (e.g. Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co., 22 Misc 3d 133[A], 2009 NY Slip Op 50230[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). As a result, defendant failed to establish that its defense of lack of medical necessity was not precluded (see Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co., 15 Misc 3d 33 [App Term, 2d & 11th Jud Dist 2007]).

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remitted to the District Court for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

The decision and order of this court entered herein on June 2, 2009 are hereby recalled and vacated (see motion decided simultaneously herewith).

Rudolph, P.J., and Molia, J., concur.

Scheinkman, J., taking no part.
Decision Date: June 29, 2009

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.

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 proof did not establish mailing of its denial, verification request or IME/EUO notice

Held the insurer failed to submit an affidavit by one with personal knowledge showing timely mailing of its denial under a standard office practice, so its medical-necessity defense was precluded.

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, 260 (this one included) are in the same category.

Claimant's prima facie case on motions

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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)

Rejected the insurer's argument that proof of the assignment of benefits form is an element of the provider's prima facie case, declining to reach the unpreserved business-records objection.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

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.

Challenging the assignment of benefits

Open the full map

Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: On the merits, the assignment or the claimant's showing is adequate, or the alleged defect is not a defect (rules on the question, but another ground decided the case)

Rejected the insurer's argument that the provider failed to prove the admissibility of the assignment form, holding proof of the assignment is not an element of the provider's prima facie case.

Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followed

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 31 (this one included) are in the same category.

Cited in this decision

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

Nyack Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52184(U)) FollowedAn insurer must accept a completed hospital facility form in place of an application for motor vehicle no-fault benefits.
Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 52046(U)) FollowedThe provider recovered on the first claim, but the second was premature because requested assignment verification remained unanswered.
Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359) FollowedThe hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
Top Choice Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 50230(U)) FollowedThe insurer failed to establish timely mailing of its denial, leaving it unable to show that its medical-necessity defense was not precluded.
New York & Presbyt. Hosp. v Allstate Ins. Co. (2006 NY Slip Op 03558) FollowedThe providers failed to establish mailing and receipt of the hospital bill asserted in their second cause of action.
Delta Diagnostic Radiology, P.C. v Republic W. Ins. Co. (2007 NY Slip Op 27088) FollowedThe insurer failed to prove timely mailing of its denials and was precluded from asserting lack of medical necessity on three claims.

Cited by

A label shows how the later decision treated this one.

Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.

Similar decisions

Delta Diagnostic Radiology, P.C. v Allstate Ins. Co. (2006 NY Slip Op 52034(U))The insurer failed to prove timely mailing of its denial and was precluded from asserting lack of medical necessity.
New York Diagnostic Med. Care, P.C. v Geico Cas. Ins. Co. (2012 NY Slip Op 50681(U))Timeliness under the 45-day claim-submission requirement turns on the provider's submission date, rather than the insurer's receipt date.
Westchester Med. Ctr. v Allstate Ins. Co. (2007 NY Slip Op 08447)The hospital failed to establish that the insurer's timely NF-10 denial was too vague or deficient to constitute a proper response.
NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))The provider's summary judgment cross motion failed because conflicting medical affirmations raised a triable issue of medical necessity.
Neomy Med., P.C. v Auto One Ins. Co. (2010 NY Slip Op 51727(U))The insurer's timely denial and supported peer review raised a medical necessity issue defeating summary judgment on the appealed claim.