April 22, 2009

Mollins v State Farm Gen. Ins. Co. (2009 NY Slip Op 50763(U))

https://www.beynensonlaw.com/case-law/mollins-v-state-farm-gen-ins-co-2009-ny-slip-op-50763u/

Court: Appellate Term, First Department
Decided: April 22, 2009
Citation: 2009 NY Slip Op 50763(U) · 23 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity · Claimant's prima facie case on motions (see the maps)

Cite as

Mollins v State Farm Gen. Ins. Co., 23 Misc 3d 134(A), 2009 NY Slip Op 50763(U) (App Term, 1st Dept 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's unsworn chiropractor's report was inadmissible and failed to raise a triable issue of medical necessity. The provider established entitlement to summary judgment by proving that the prescribed billing forms were mailed and received and that payment was overdue under Insurance Law § 5106 (a). Even assuming a timely denial, the insurer's report had to be excluded because it was not in admissible form under CPLR 2106. The Appellate Term, First Department, reversed the order denying the provider's motion, granted summary judgment to the provider, and directed entry of judgment.

Reported in New York Official Reports at Mollins v State Farm Gen. Ins. Co. (2009 NY Slip Op 50763(U))

[*1]

Mollins v State Farm Gen. Ins. Co.

2009 NY Slip Op 50763(U) [23 Misc 3d 134(A)]

Decided on April 22, 2009

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 22, 2009

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: McKeon, P.J., Schoenfeld, JJ
570231/08.

Jeff Mollins, D.C. a/a/o Peggy Winns, Plaintiff-Appellant, – –
against
State Farm General Insurance Company, Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Joan M. Kenney, J.), entered August 17, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Joan M. Kenney, J.), entered August 17, 2007, reversed, with $10 costs, and plaintiff’s motion for summary judgment in the principal sum of $554.76 is granted. The Clerk is directed to enter judgment accordingly.

Plaintiff established a prima facie entitlement to summary judgment by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). In opposition, defendant failed to raise a triable issue. Even assuming that defendant timely denied plaintiff’s no-fault claims, the unsworn chiropractor’s report submitted by defendant in support of its defense of lack of medical necessity was not in admissible form, a defect which requires its exclusion from consideration (see CPLR 2106; Shinn v Catanzaro, 1 AD3d 195, 197 [2003]; Mollins v Motor Veh. Acc. Indem. Corp., 14 Misc 3d 133[A], 2007 NY Slip Op 50138[U] [2007]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concur
Decision Date: April 22, 2009

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

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Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?

This decision: Insurer's medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer failed to raise a triable issue because the chiropractor's report supporting its lack of medical necessity defense was unsworn and therefore not in admissible form.

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 73 decisions on this question in the First Department courts and the Court of Appeals, 22 (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)

Held the provider established prima facie entitlement by evidentiary proof that the statutory billing forms were mailed and received and that payment was overdue.

Proof sufficientMailing/receipt not shownOverdue not shownOther element missingThis decisionCites it or cited by itCited or followed

Of the 52 decisions on this question in the First Department courts and the Court of Appeals, 45 (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.

Cited in this decision

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

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.
Mollins v Motor Veh. Acc. Indem. Corp. (2007 NY Slip Op 50138(U))MVAIC's unsworn chiropractor's report was inadmissible and failed to raise a triable issue on medical necessity.

Similar decisions

Mollins v Allstate Ins. Co. (2008 NY Slip Op 51616(U))The insurer failed to raise a medical-necessity issue because it submitted neither the IME report underlying its denials nor other supporting proof.
A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51033(U))The insurer's EUO evidence did not establish a founded belief that the claimed injuries arose from a noncovered event.
Bongiorno v State Farm Ins. Co. (2009 NY Slip Op 50860(U))The insurer's unrebutted IME report and claims affidavit established its entitlement to summary judgment for lack of medical necessity.
GPM Chiropractic, P.C. v State Farm Mut. Ins. Co (2005 NYSlipOp 50861(U))The insurer's investigator affidavit raised a triable staged-collision coverage issue despite an untimely denial.
Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U))The physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary.