September 2, 2008

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U))

https://www.beynensonlaw.com/case-law/delta-diagnostic-radiology-p-c-v-progressive-cas-ins-co-2008-ny-slip-op51852u/

Court: Appellate Term, Second Department
Decided: September 2, 2008
Citation: 2008 NY Slip Op 51852(U) · 20 Misc 3d 144(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Discovery and procedure

Cite as

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co., 20 Misc 3d 144(A), 2008 NY Slip Op 51852(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 summary judgment award was vacated because medical necessity was not an issue raised by the provider's motion. The provider sought summary judgment for assigned no-fault benefits, and the insurer opposed with peer reviews and the reviewer's affidavit. The Appellate Term, Second Department, rejected the provider's assertion that the denials were vague or misleading: the NF-10 forms, accompanying explanations, and peer reviews adequately identified the grounds. Although a court may award summary judgment to a nonmoving party, searching this record on medical necessity was improper. The judgment was reversed and the insurer's award vacated; denial of the provider's motion remained intact. A remaining contention was not reached because it was first raised on appeal.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 51852(U))

[*1]

Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co.

2008 NY Slip Op 51852(U) [20 Misc 3d 144(A)]

Decided on September 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 2, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2006-1987 K C.

Delta Diagnostic Radiology, P.C. a/a/o Bienvenida Martinez, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered August 23, 2006, deemed from a judgment of the same court entered September 11, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 23, 2006 order denying plaintiff’s motion for summary judgment and, upon a search of the record, granting defendant summary judgment dismissing the complaint, dismissed the complaint.

Judgment reversed without costs and so much of the order as granted defendant summary judgment dismissing the complaint vacated.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant argued that it timely denied plaintiff’s claims based upon peer review reports which determined that there was a lack of medical necessity for the services rendered by plaintiff. In addition to the peer review reports, defendant submitted an affidavit executed by the chiropractor who performed the peer reviews. The court denied plaintiff’s motion for summary judgment and, upon a search of the record, granted summary judgment to defendant dismissing the complaint. This appeal by plaintiff ensued. A judgment was subsequently entered.

Contrary to plaintiff’s contention, defendant’s NF-10 denial of claim forms were not “vague” and “misleading” as to the insurer’s basis for denial. Each NF-10 form stated that defendant was paying nothing upon the claim and that the entire sum remained in dispute. In addition, the explanation of benefits forms which accompanied defendant’s NF-10 forms unequivocally stated that each claim was denied based upon a peer review report which also accompanied the applicable NF-10. As a result, the NF-10 forms were sufficient to apprise plaintiff of the reason for the denial of plaintiff’s claims (see A.B. Med. Servs., PLLC v Liberty [*2]Mut. Ins. Co., 39 AD3d 779 [2007]).

While the court has the power to award summary judgment to a nonmoving party predicated upon a motion for that relief by another party (see Dunham v Hilco Constr. Co., 89 NY2d 425 [1996]), here the issue of medical necessity was not the subject of plaintiff’s motion for summary judgment (see Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). As a result, the court improvidently exercised its discretion when it searched the record and awarded defendant summary judgment dismissing the action (see Whitman Realty Group, Inc. v Galano, 52 AD3d 505 [2008]; Ey v Mecca, 41 AD3d 534 [2007]; Jillsunan Corp. v Wallfrin Indus., 79 AD2d 943 [1981]).

Plaintiff’s remaining contention is raised for the first time on appeal and we decline to reach it.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008

Cited in this decision

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

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636) FollowedAn insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.

Cited by

A label shows how the later decision treated this one.

Bay Ls Med. Supplies, Inc. v Allstate Ins. Co. (2015 NY Slip Op 50802(U)) FollowedThe provider failed to establish that its claim was not timely denied or that a timely denial was legally deficient.
Healing Art Acupuncture, P.C. v Allstate Ins. Co. (2015 NY Slip Op 51670(U)) FollowedA court may not search the record to grant an insurer summary judgment on medical necessity when that issue is outside the provider's motion.

Similar decisions

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 Progressive Casualty Insurance Company (2008 NY Slip Op 52450(U))The insurer's peer review reports and chiropractor's affidavit established that two MRIs were not medically necessary.
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 Progressive Cas. Ins. Co (2006 NYSlipOp 50491(U))An insurer's bill-of-particulars demand is improper when it seeks evidentiary material rather than amplification of the pleadings.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 27234)A medical-necessity denial's reference to a negative peer review report sufficiently identifies the basis for denial.