December 19, 2007

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)

https://www.beynensonlaw.com/case-law/cpt-med-servs-p-c-v-new-york-cent-mut-fire-ins-co-2007-ny-slip-op-27526/

Court: Appellate Term, First Department
Decided: December 19, 2007
Citation: 2007 NY Slip Op 27526 · 18 Misc 3d 87
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 10 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 18 Misc 3d 87 (App Term, 1st Dept 2007)

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 provider's attorney affirmation and unsworn medical report failed to rebut the insurer's evidence of lack of medical necessity. The insurer supported summary judgment with competent medical evidence, including a peer reviewer's affidavit incorporating an earlier report. The provider submitted only an attorney affirmation and an unsworn, undated doctor's report, which did not constitute admissible opposing evidence. Even if considered, the report failed to address a negative diagnostic study performed during the month before the disputed testing. The Appellate Term, First Department, reversed the order, granted the insurer's motion for summary judgment, and dismissed the complaint.

Reported in New York Official Reports at CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 27526)

CPT Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 27526 [18 Misc 3d 87]

Accepted for Miscellaneous Reports Publication

AT1

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, March 19, 2008

[*1]

CPT Medical Services, P.C., as Assignee of Jason King, Respondent,
v
New York Central Mutual Fire Insurance Co., Appellant.

Supreme Court, Appellate Term, First Department, December 19, 2007

APPEARANCES OF COUNSEL

Short & Billy, P.C., New York City (Ioanna Olivia Zevgaras of counsel), for appellant. Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, LLP, Mineola (Michael C. Rosenberger of counsel), for respondent.

{**18 Misc 3d at 228} OPINION OF THE COURT

Per Curiam.

Order, dated June 16, 2006, reversed, with $10 costs, defendant’s motion for summary judgment granted, and complaint dismissed. The clerk is directed to enter judgment accordingly.

Defendant demonstrated prima facie entitlement to judgment by submitting competent medical evidence, including a peer reviewer’s affidavit incorporating by reference the findings set forth in his earlier report, that the diagnostic testing giving rise to plaintiff’s claim for first party no-fault benefits lacked medical necessity. In opposition, plaintiff relied upon an attorney’s affirmation accompanied by a single, unsworn and undated doctor’s report, which was not properly before the court and should not have been considered (see Grasso v Angerami, 79 NY2d 813 [1991]; Black v Regalado, 36 AD3d 437 [2007]; Henkin v Fast Times Taxi, 307 AD2d 814 [2003]). While a physician’s affirmation submitted in opposition to summary judgment may be based on an unsworn medical report (see Pommells v Perez, 4 NY3d 566, 577 n 5 [2005]), an attorney’s affirmation augmented only by an unsworn medical report does not constitute admissible opposing evidence. In any event, even if considered, the unsworn report of plaintiff’s doctor was insufficient to defeat summary judgment, since it failed to mention, much less meaningfully address, the negative diagnostic study separately administered during the month preceding the testing here at issue.

McKeon, J.P., McCooe and Davis, JJ., concur.

Legal questions

A question 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 the peer reviewer's affidavit established lack of necessity for the diagnostic testing, and the provider's attorney affirmation with an unsworn doctor's report was inadmissible and, in any event, failed to address a prior negative study.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 72 decisions on this question in the First Department courts and the Court of Appeals, 28 (this one included) are in the same category. 2 decisions in other departments that cite or are cited by this one are on the full map.

Cited by (18)

A label shows how the later decision treated this one.

AP Diagnostic Med., PC v Chubb Indem. Ins. Co. (2013 NY Slip Op 51647(U)) Contrasted (cf., but see)The provider's medical affidavit raised a triable issue whether a cervical MRI was necessary to rule out disc herniations.
Rummel G. Mendoza, D.C., P.C. v Chubb Indem. Ins. Co. (2015 NY Slip Op 50900(U)) FollowedThe physical therapy provider failed to rebut the insurer's IME findings that the assignor's injuries had resolved and further treatment was unnecessary.
Triangle R Inc. v New York Cent. Mut. Fire Ins. Co. (2011 NY Slip Op 51663(U)) FollowedThe provider's unsworn medical report failed to rebut the insurer's showing that the medical supplies were unnecessary.
V.S. Care Acupuncture PC v MVAIC (2015 NY Slip Op 50350(U)) FollowedMVAIC need not notify a provider of a scheduled IME before relying on the resulting report to deny further treatment.
Bronze Acupuncture, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51219(U)) FollowedThe insurer established lack of medical necessity, and the treating acupuncturist's unsupported disagreement failed to raise a factual issue.
Innovative Chiropractic, P.C. v Travelers Ins. Co. (2009 NY Slip Op 52447(U)) FollowedThe treating chiropractor's conclusory affidavit failed to rebut the insurer's peer review on the provider's fifth cause of action.
Diagnostic Medicine, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 50102(U)) FollowedThe provider's opposition lacked medical evidence or other competent proof to rebut the insurer's medical-necessity showing.
Darlington Med. Diagnostics, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50226(U)) FollowedThe provider's generic medical affidavit and unsigned report failed to rebut the insurer's peer review finding that diagnostic testing was unnecessary.
Synergy Med. v Praetorian Ins. Co. (2013 NY Slip Op 51047(U)) FollowedThe insurer's sworn peer review established lack of medical necessity, and the provider's unsworn, conclusory reports raised no triable issue.
Innovative MR Imaging, P.C. v Praetorian Ins. Co. (2013 NY Slip Op 50264(U)) FollowedThe provider's unsworn, conclusory chiropractor's report failed to rebut the insurer's showing that MRI tests lacked medical necessity.

Show all 18 citing decisions

Similar decisions

Metropolitan Diagnostic Med. Care, P.C. v New York Cent. Mut. Fire Ins. Co. (2015 NY Slip Op 50383(U))The provider's physician affirmation raised a triable issue as to whether the services were medically necessary.
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.
Medical Assoc., P.C. v Clarendon Natl. Ins. Co. (2013 NY Slip Op 50248(U))The provider's medical affirmation raised a triable issue of medical necessity, defeating the insurer's summary judgment motion.
Medical Assoc., P.C. v Interboro Ins. Co. (2012 NY Slip Op 50392(U))The provider's unsworn medical report failed to defeat the insurer's supported motion for summary judgment on lack of medical necessity.