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May 3, 2006

Tsai Chao v Country-Wide Ins. Co. (2006 NY Slip Op 50794(U))

https://www.beynensonlaw.com/case-law/tsai-chao-v-country-wide-ins-co-2006-ny-slip-op-50794u/

Court
District Court of Nassau County
Judge
Paradiso, J.
Decided
May 3, 2006
Citation
2006 NY Slip Op 50794(U) · 11 Misc 3d 1090(A)
Posture
Summary judgment
Outcome
Split result
Later treatment
Declined to follow in 1 later decision (see Cited by)
Issues
Interest and attorney fees Medical necessity IME no-show
Legal questions
Proof of mailing · No-show defense: insurer's proof · Lack of medical necessity (see the maps)
Cite as
Tsai Chao v Country-Wide Ins. Co., 11 Misc 3d 1090(A), 2006 NY Slip Op 50794(U) (Dist Ct, Nassau County 2006)

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.

A provider that sues more than 30 days after receiving a timely denial recovers interest from commencement of suit. The District Court, Nassau County, granted the provider summary judgment but limited interest to the commencement date. The insurer failed to submit admissible medical-necessity evidence or establish mailing of the IME notice supporting its nonappearance defense. The provider commenced suit more than four years after timely denials. Rejecting East Acupuncture, the court applied 11 NYCRR 65-3.9 (c) to assignees because they acquire no greater rights than assignors and exempting them would undermine prompt resolution under Insurance Law § 5106 (a). The court awarded interest at two percent monthly under 11 NYCRR 65-3.9 (a) and attorney fees under 11 NYCRR 65-4.6.

Reported in New York Official Reports at Tsai Chao v Country-Wide Ins. Co. (2006 NY Slip Op 50794(U))

[*1]
Tsai Chao v Country-Wide Ins. Co.
2006 NY Slip Op 50794(U) [11 Misc 3d 1090(A)]
Decided on May 3, 2006
Nassau Dist Ct
Paradiso, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2006

Nassau Dist Ct



Tsai Chao, M.D., a/a/o ANDREW CHEN, Plaintiffs,

against

Country-Wide Insurance Company, Defendant.

34030/02

Anthony W. Paradiso, J.

Plaintiff moves for summary judgment to recover no-fault benefits. The defendant opposes the motion. For the reasons that follow, the motion is granted.

The plaintiff rendered medical services to the defendant’s insured from August 15, 1997 through December 20, 1997, allegedly relating to an automobile accident that occurred on July 8, 1997. The plaintiff submitted three claims to the defendant for payment of first-party no-fault benefits. Each claim was timely denied. Defendant denied payment for all services rendered prior to September 17, 1997 on the basis that it conducted a medical audit and “there is no support for the medical necessity of this equipment or test/service.” Defendant denied payment for all services rendered after September 17, 1997 based on the insured’s failure to appear for a physical examination originally scheduled for that date.

“While the timely denials defendant submitted in the claim stage constituted sufficient denials based on the defense of lack of medical necessity, defendant must, nevertheless, submit proof in admissible form to rebut plaintiff’s prima facie showing to oppose a motion for summary judgment” (A.B. Medical Services PLLC v Lumbermens Mutual Casualty Co., 4 Misc 3d 86, 87 [App Term, 2d Dept 2004]). Inasmuch as defendant solely submitted the affirmation of its [*2]attorney in opposition to plaintiff’s motion for summary judgment and did not submit a sworn peer review report to support its allegation of lack of medical necessity for the services rendered, it failed to oppose the motion by proof in admissible form and cannot defeat plaintiff’s entitlement to summary judgment on that basis (see id.).

Likewise, the defendant offered no admissible proof that its denials based upon the insured’s failure to comply with a request for a physical examination were predicated upon a properly mailed verification notice (see Summit Psychological, P.C. v General Assurance Company, 9 Misc 3d 8, 9-10 [App Term, 2d Dept 2005]). The affidavit of Saneela Khan did not establish how or when the IME notice was mailed, and therefore no presumption of mailing can be attributed to her averments (see id.).

While the plaintiff is clearly entitled to judgment in the amount of $924.38 for the medical services provided, the court must determine when interest began to accrue on this amount. The accrual date often urged by medical providers seeking no-fault payments is 30 days after an insurer receives a proper proof of claim. In contrast, insurers often point to 11 NYCRR 65-3.9(c) (and its predecessor, 11 NYCRR 65.15[h][3]) to support the argument that interest should not accrue until the no-fault claimant requests arbitration or institutes a lawsuit when that claimant has not done so within 30 days after receipt of the denial. Here, the plaintiff submitted claims on November 5, 1997, December 8, 1997 and January 14, 1998 which were timely denied on November 12, 1997, December 12, 1997 and January 22, 1998, respectively. However, the plaintiff did not commence suit for the recovery of these payments until September 6, 2002, well over four years later.

Judge Milagros A. Matos of the Civil Court, Kings County, grappled with this very issue in East Acupuncture, P.C. v Allstate Ins. Co., 8 Misc 3d 849 (2005). Judge Matos compared the language of 11 NYCRR 65.15(h)(1) (now 11 NYCRR 65-3.9[a]), dealing with the interest rate to be applied to overdue payments due “an applicant or an assignee,” with the language of 11 NYCRR 65.15(h)(3) (now 11 NYCRR 65-3.9[c]), which limits the interest accrual date on such payments where “an applicant” does not request arbitration or institute a lawsuit within 30 days after receipt of the denial of claim. Judge Matos accepted the argument of the plaintiff therein that the Superintendent of Insurance, when promulgating the regulations at issue, specifically and intentionally distinguished between “an applicant” and “an assignee.” According to Judge Matos, “[u]nder a strict interpretation of the regulation at issue, 11 NYCRR 65.15(h)(3) does not apply to assignees” (East Acupuncture at 852). The court found the omission of the word “assignee” to be “a clear indication that the Superintendent intended to exclude assignees from this section’s application” (id.).

Deferring to the Superintendent’s supposed interpretation, the East Acupuncture court would not, by implication, read into the regulation “a limitation for which no sound reason can be found” (id. at 853). As such, Judge Matos concluded that unlike an insured/assignor, a medical provider/assignee was not limited to interest from the date it commenced a belated suit for the recovery of no-fault benefits, but rather could avail itself of the earliest possible interest accrual date.

This court respectfully disagrees with Judge Matos’ conclusion. Although courts will defer to an agency’s interpretation of a statute it is charged with administering where the [*3]application of the statute involves knowledge and understanding of underlying practices or entails an evaluation of factual data and inferences to be drawn therefrom (see Kurcsics v Merchants Mutual Ins. Co., 49 NY2d 451, 459 [1980]), a court must not blindly accept a statutory interpretation that has no reasonable basis in the law (see id. at 458-59; O’Brien v Spitzer, 24 AD3d 9, 14 [2d Dept 2005]). Here, the interpretation accepted by the court in East Acupuncture runs counter to the stated objectives of the statutory no-fault scheme, i.e., prompt compensation for losses incurred by accident victims, reduced burdens on the courts, and lower premiums for motorists (see Medical Society of the State of NY v Serio, 100 NY2d 854, 860 [2003]). As the Court of Appeals observed in Walton v Lumbermens Mutual Casualty Co., 88 NY2d 211, 214 (1996), the no-fault law’s purposes “were to remove the vast majority of claims arising from vehicular accidents from the sphere of common-law tort litigation, and to establish a quick, sure and efficient system for obtaining compensation for economic loss suffered as a result of such accidents.” The interpretation attributed to the Superintendent in East Acupuncture encourages delayed suits and thrusts an unjustified financial burden on insurance companies who are forced to pay years worth of punitive interest payments that are eventually reflected in higher insurance premiums (see Kuscsics, 49 NY2d at 457). Since this interpretation frustrates a core and essential objective of the regulations, “that is, to provide a tightly timed process of claim, disputation and payment” (Presbyterian Hospital v Maryland Casualty Co., 90 NY2d 274, 281 [1997]), it should not be accepted (see id.; Kuscsics at 458; see e.g. Crump v Unigard Ins. Co., 100 NY2d 12, 17 [2003]).

Moreover, the Superintendent’s purported distinction between an insured/assignor and a medical provider/assignee with regard to the interest accrual date on a belated suit constitutes an unwarranted abrogation of the common law. It is settled law that an assignee stands in the shoes of the assignor and acquires no greater rights than those possessed by the assignor (see International Ribbon Mills, Ltd. v Arjan Ribbons, Inc., 36 NY2d 121, 126 [1975]). This general principle “remains alive and well today in [n]o-[f]ault actions” (CPT Medical Service, P.C. v Utica Mutual Ins., 2006 NY Slip Op 26098 [Civ Ct, Queens County 2006]; see e.g. A.B. Medical Services PLLC v Commercial Mutual Ins. Co., 2006 NY Slip Op 26118 [App Term, 2d Dept 2006] [health care provider deals with an assignor-insured at its own peril in accepting an assignment of no-fault benefits and acquires no greater rights than an assignor-insured whose recovery is precluded due to fraud]). As the Court of Appeals remarked in Gottlieb v Kenneth D. Laub & Co., 82 NY2d 457, 464 [1993]: “The common law is never abrogated by implication, but on the contrary it must be held no further changed than the clear import of the language used in a statute absolutely requires” (see Statutes §301[a]). It simply cannot be said that Insurance Law § 5106(a), which expresses the legislature’s mandate regarding the fair settlement of no-fault claims, “absolutely requires” the irrational interpretation that would reward a dilatory assignee such as the plaintiff herein with an interest windfall permitted under the East Acupuncture rationale. This is especially so in light of the Superintendent’s duty to promulgate rules intended to “better effectuate the legislative purpose of providing prompt compensation as the loss is incurred'” (Medical Society of the State of NY v Serio, 100 NY2d at 862, quoting Ins. Law § 5106[a]).

Accordingly, the plaintiff shall have judgment in the amount of $924.38 with interest at two percent per month from September 6, 2002 (see 11 NYCRR 65-3.9[a], [c]), as well as [*4]attorneys’ fees calculated in accordance with 11 NYCRR 65-4.6.

So Ordered:

District Court Judge

Dated: May 3, 2006

cc:Sanders, Grossman, Fass & Muhlstock, P.C.

Jaffe & Nohavicka

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 no presumption of mailing arose for the IME notice because the insurer's affiant did not establish how or when the notice was mailed.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 37
  • Appellate TermApp Term 1,203
  • Trial courtsTrial 143
2015, Court of Appeals: 1 decision (1 Provider proved mailing)2023, Appellate Division: 1 decision (1 Insurer proved mailing)2020, Appellate Division: 1 decision (1 Insurer proved mailing)2016, Appellate Division: 3 decisions (1 Insurer proved mailing, 2 Insurer failed to prove)2015, Appellate Division: 2 decisions (2 Insurer failed to prove)2014, Appellate Division: 3 decisions (2 Insurer proved mailing, 1 Provider proved mailing)2013, Appellate Division: 1 decision (1 Provider proved mailing)2012, Appellate Division: 1 decision (1 Provider proved mailing)2011, Appellate Division: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2010, Appellate Division: 1 decision (1 Provider proved mailing)2008, Appellate Division: 2 decisions (2 Insurer proved mailing)2007, Appellate Division: 7 decisions (1 Insurer proved mailing, 1 Insurer failed to prove, 3 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2006, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Provider failed to prove)2005, Appellate Division: 2 decisions (2 Insurer failed to prove)2004, Appellate Division: 3 decisions (2 Insurer failed to prove, 1 Triable issue on mailing)2026, Appellate Division: 1 decision (1 Insurer failed to prove)2023, Appellate Term: 5 decisions (5 Insurer proved mailing)2022, Appellate Term: 44 decisions (32 Insurer proved mailing, 3 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 5 Triable issue on mailing)2021, Appellate Term: 21 decisions (13 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing, 1 Mixed rulings)2020, Appellate Term: 31 decisions (24 Insurer proved mailing, 2 Insurer failed to prove, 5 Triable issue on mailing)2019, Appellate Term: 80 decisions (59 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 12 Triable issue on mailing, 1 Mixed rulings)2018, Appellate Term: 73 decisions (46 Insurer proved mailing, 16 Insurer failed to prove, 1 Provider failed to prove, 9 Triable issue on mailing, 1 Mixed rulings)2017, Appellate Term: 115 decisions (60 Insurer proved mailing, 26 Insurer failed to prove, 4 Provider proved mailing, 2 Provider failed to prove, 21 Triable issue on mailing, 2 Mixed rulings)2016, Appellate Term: 102 decisions (44 Insurer proved mailing, 30 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 20 Triable issue on mailing, 3 Mixed rulings)2015, Appellate Term: 97 decisions (66 Insurer proved mailing, 10 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 9 Triable issue on mailing, 8 Mixed rulings)2014, Appellate Term: 67 decisions (55 Insurer proved mailing, 3 Insurer failed to prove, 2 Provider proved mailing, 3 Triable issue on mailing, 4 Mixed rulings)2013, Appellate Term: 73 decisions (62 Insurer proved mailing, 6 Insurer failed to prove, 1 Provider proved mailing, 1 Provider failed to prove, 3 Mixed rulings)2012, Appellate Term: 109 decisions (87 Insurer proved mailing, 13 Insurer failed to prove, 1 Provider proved mailing, 3 Provider failed to prove, 1 Triable issue on mailing, 4 Mixed rulings)2011, Appellate Term: 69 decisions (56 Insurer proved mailing, 8 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing, 2 Mixed rulings)2010, Appellate Term: 77 decisions (67 Insurer proved mailing, 4 Insurer failed to prove, 2 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2009, Appellate Term: 53 decisions (29 Insurer proved mailing, 11 Insurer failed to prove, 6 Provider proved mailing, 3 Provider failed to prove, 4 Mixed rulings)2008, Appellate Term: 27 decisions (12 Insurer proved mailing, 11 Insurer failed to prove, 2 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Appellate Term: 30 decisions (9 Insurer proved mailing, 16 Insurer failed to prove, 3 Provider proved mailing, 2 Mixed rulings)2006, Appellate Term: 74 decisions (6 Insurer proved mailing, 18 Insurer failed to prove, 21 Provider proved mailing, 21 Provider failed to prove, 8 Mixed rulings)2005, Appellate Term: 27 decisions (2 Insurer proved mailing, 14 Insurer failed to prove, 7 Provider proved mailing, 3 Provider failed to prove, 1 Mixed rulings)2004, Appellate Term: 12 decisions (1 Insurer proved mailing, 4 Insurer failed to prove, 3 Provider proved mailing, 2 Provider failed to prove, 1 Triable issue on mailing, 1 Mixed rulings)2003, Appellate Term: 3 decisions (3 Provider proved mailing)2024, Appellate Term: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2025, Appellate Term: 3 decisions (3 Insurer proved mailing)2026, Appellate Term: 7 decisions (2 Insurer proved mailing, 3 Insurer failed to prove, 2 Triable issue on mailing)2023, Trial courts: 4 decisions (2 Insurer proved mailing, 2 Provider proved mailing)2022, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Mixed rulings)2021, Trial courts: 17 decisions (12 Insurer proved mailing, 1 Provider proved mailing, 2 Provider failed to prove, 2 Mixed rulings)2020, Trial courts: 4 decisions (2 Provider proved mailing, 2 Mixed rulings)2019, Trial courts: 4 decisions (3 Insurer failed to prove, 1 Triable issue on mailing)2018, Trial courts: 1 decision (1 Insurer proved mailing)2017, Trial courts: 7 decisions (5 Insurer proved mailing, 2 Insurer failed to prove)2016, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Provider proved mailing, 1 Triable issue on mailing)2015, Trial courts: 3 decisions (3 Provider proved mailing)2013, Trial courts: 4 decisions (3 Insurer proved mailing, 1 Insurer failed to prove)2012, Trial courts: 10 decisions (5 Insurer proved mailing, 2 Insurer failed to prove, 2 Provider proved mailing, 1 Triable issue on mailing)2011, Trial courts: 4 decisions (2 Insurer proved mailing, 1 Insurer failed to prove, 1 Provider failed to prove)2010, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 2 Provider proved mailing)2009, Trial courts: 9 decisions (4 Insurer proved mailing, 2 Insurer failed to prove, 3 Provider proved mailing)2008, Trial courts: 13 decisions (3 Insurer proved mailing, 1 Insurer failed to prove, 7 Provider proved mailing, 1 Provider failed to prove, 1 Mixed rulings)2007, Trial courts: 8 decisions (1 Insurer proved mailing, 5 Insurer failed to prove, 2 Provider proved mailing)2006, Trial courts: 7 decisions (1 Insurer proved mailing, 6 Insurer failed to prove)2005, Trial courts: 14 decisions (2 Insurer proved mailing, 8 Insurer failed to prove, 4 Provider failed to prove)2004, Trial courts: 10 decisions (5 Insurer failed to prove, 2 Provider proved mailing, 3 Provider failed to prove)2024, Trial courts: 2 decisions (1 Insurer failed to prove, 1 Provider failed to prove)2025, Trial courts: 2 decisions (2 Insurer proved mailing)2026, Trial courts: 6 decisions (3 Insurer proved mailing, 1 Provider proved mailing, 1 Provider failed to prove, 1 Triable issue on mailing)This decision
20052010201520202025
Insurer proved mailingInsurer failed to proveProvider proved mailingProvider failed to proveTriable issue on mailingMixed rulingsThis decisionCites it or cited by itCited or followedDeclined to follow, questioned, overruled or reversed

Of the 1,384 decisions on this question in the Second Department courts and the Court of Appeals, 257 (this one included) are in the same category.

No-show defense: insurer's proof

Open the full map

Did the insurer prove its IME/EUO no-show defense: mailed, compliant scheduling requests and the claimant’s nonappearance?

This decision: Insurer failed to prove the scheduling letters were mailed or properly addressed

Held the IME no-show defense failed because the insurer offered no admissible proof that the IME notice was properly mailed; its affidavit did not say how or when it was sent.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 753
  • Trial courtsTrial 89
2023, Appellate Division: 1 decision (1 Defense proved)2020, Appellate Division: 1 decision (1 Defense proved)2016, Appellate Division: 2 decisions (2 Mailing not proved)2015, Appellate Division: 1 decision (1 Mailing not proved)2014, Appellate Division: 2 decisions (2 Defense proved)2006, Appellate Division: 1 decision (1 Mailing not proved)2004, Appellate Division: 1 decision (1 No-show excused)2023, Appellate Term: 5 decisions (5 Defense proved)2022, Appellate Term: 45 decisions (37 Defense proved, 3 Mailing not proved, 3 Nonappearance not proved, 2 Requests not compliant)2021, Appellate Term: 22 decisions (16 Defense proved, 3 Mailing not proved, 1 Requests not compliant, 2 Triable issue)2020, Appellate Term: 30 decisions (26 Defense proved, 2 Mailing not proved, 2 Requests not compliant)2019, Appellate Term: 68 decisions (52 Defense proved, 1 Mailing not proved, 1 Nonappearance not proved, 13 Requests not compliant, 1 Triable issue)2018, Appellate Term: 52 decisions (43 Defense proved, 3 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant)2017, Appellate Term: 86 decisions (52 Defense proved, 14 Mailing not proved, 6 Nonappearance not proved, 11 Requests not compliant, 1 Triable issue, 2 No-show excused)2016, Appellate Term: 74 decisions (34 Defense proved, 14 Mailing not proved, 22 Nonappearance not proved, 3 Requests not compliant, 1 Triable issue)2015, Appellate Term: 77 decisions (48 Defense proved, 6 Mailing not proved, 14 Nonappearance not proved, 5 Requests not compliant, 4 Triable issue)2014, Appellate Term: 46 decisions (35 Defense proved, 5 Mailing not proved, 4 Nonappearance not proved, 2 Requests not compliant)2013, Appellate Term: 44 decisions (29 Defense proved, 6 Mailing not proved, 7 Nonappearance not proved, 1 Requests not compliant, 1 No-show excused)2012, Appellate Term: 51 decisions (37 Defense proved, 5 Mailing not proved, 1 Nonappearance not proved, 5 Requests not compliant, 2 Triable issue, 1 No-show excused)2011, Appellate Term: 33 decisions (27 Defense proved, 3 Mailing not proved, 2 Nonappearance not proved, 1 Triable issue)2010, Appellate Term: 14 decisions (9 Defense proved, 1 Mailing not proved, 2 Nonappearance not proved, 2 Requests not compliant)2009, Appellate Term: 15 decisions (6 Defense proved, 6 Mailing not proved, 2 Nonappearance not proved, 1 Requests not compliant)2008, Appellate Term: 7 decisions (2 Defense proved, 1 Mailing not proved, 4 Nonappearance not proved)2007, Appellate Term: 15 decisions (1 Defense proved, 6 Mailing not proved, 5 Nonappearance not proved, 3 Triable issue)2006, Appellate Term: 19 decisions (1 Defense proved, 8 Mailing not proved, 6 Requests not compliant, 4 Triable issue)2005, Appellate Term: 19 decisions (3 Defense proved, 10 Mailing not proved, 5 Requests not compliant, 1 No-show excused)2004, Appellate Term: 15 decisions (3 Defense proved, 1 Mailing not proved, 10 Requests not compliant, 1 Triable issue)2024, Appellate Term: 6 decisions (6 Defense proved)2025, Appellate Term: 7 decisions (7 Defense proved)2026, Appellate Term: 2 decisions (2 Defense proved)2003, Appellate Term: 1 decision (1 Requests not compliant)2023, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 2 Triable issue)2022, Trial courts: 3 decisions (1 Defense proved, 1 Mailing not proved, 1 Requests not compliant)2021, Trial courts: 10 decisions (8 Defense proved, 2 Requests not compliant)2020, Trial courts: 3 decisions (2 Mailing not proved, 1 Requests not compliant)2019, Trial courts: 5 decisions (3 Mailing not proved, 2 Requests not compliant)2018, Trial courts: 3 decisions (1 Defense proved, 1 Nonappearance not proved, 1 Requests not compliant)2017, Trial courts: 6 decisions (2 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 Triable issue)2016, Trial courts: 4 decisions (3 Defense proved, 1 Requests not compliant)2015, Trial courts: 1 decision (1 Defense proved)2014, Trial courts: 5 decisions (2 Defense proved, 1 Requests not compliant, 1 Triable issue, 1 No-show excused)2013, Trial courts: 7 decisions (3 Defense proved, 1 Nonappearance not proved, 2 Requests not compliant, 1 No-show excused)2012, Trial courts: 5 decisions (2 Defense proved, 3 Requests not compliant)2010, Trial courts: 3 decisions (2 Defense proved, 1 Requests not compliant)2009, Trial courts: 2 decisions (2 Defense proved)2008, Trial courts: 4 decisions (2 Defense proved, 2 Requests not compliant)2007, Trial courts: 1 decision (1 Mailing not proved)2006, Trial courts: 2 decisions (2 Mailing not proved)2005, Trial courts: 2 decisions (1 Defense proved, 1 Requests not compliant)2004, Trial courts: 7 decisions (1 Defense proved, 2 Mailing not proved, 4 Requests not compliant)2024, Trial courts: 2 decisions (1 Mailing not proved, 1 Requests not compliant)2025, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2026, Trial courts: 4 decisions (3 Defense proved, 1 Nonappearance not proved)2011, Trial courts: 1 decision (1 Defense proved)This decision
20052010201520202025
Defense provedMailing not provedNonappearance not provedRequests not compliantTriable issueNo-show excusedThis decisionCites it or cited by itCited or followed

Of the 851 decisions on this question in the Second Department courts and the Court of Appeals, 114 (this one included) are in the same category.

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 medical-necessity proof failed (conclusory, no factual basis or rationale, inadmissible, not credited)

Held the insurer failed to raise a triable issue on lack of medical necessity because it submitted only an attorney's affirmation and no sworn peer review report.

  • Appellate DivisionApp Div 9
  • Appellate TermApp Term 521
  • Trial courtsTrial 87
2022, Appellate Division: 2 decisions (2 Insurer's proof insufficient)2020, Appellate Division: 1 decision (1 Provider's rebuttal sufficient)2019, Appellate Division: 1 decision (1 Insurer's proof insufficient)2016, Appellate Division: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2008, Appellate Division: 1 decision (1 Insurer's proof insufficient)2007, Appellate Division: 2 decisions (2 Insurer raised triable issue)2023, Appellate Term: 1 decision (1 Provider's rebuttal sufficient)2022, Appellate Term: 1 decision (1 Unrebutted, insurer prevails)2021, Appellate Term: 4 decisions (4 Unrebutted, insurer prevails)2020, Appellate Term: 5 decisions (1 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 1 Trial error, new trial)2019, Appellate Term: 15 decisions (8 Unrebutted, insurer prevails, 4 Insurer's proof insufficient, 3 Trial error, new trial)2018, Appellate Term: 13 decisions (7 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 4 Trial error, new trial)2017, Appellate Term: 20 decisions (5 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 7 Trial error, new trial)2016, Appellate Term: 28 decisions (16 Unrebutted, insurer prevails, 7 Provider's rebuttal sufficient, 3 Insurer raised triable issue, 2 Insurer's proof insufficient)2015, Appellate Term: 22 decisions (9 Unrebutted, insurer prevails, 9 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2014, Appellate Term: 40 decisions (16 Unrebutted, insurer prevails, 22 Provider's rebuttal sufficient, 1 Insurer's proof insufficient, 1 Trial error, new trial)2013, Appellate Term: 57 decisions (40 Unrebutted, insurer prevails, 12 Provider's rebuttal sufficient, 1 Insurer raised triable issue, 2 Insurer's proof insufficient, 2 Trial error, new trial)2012, Appellate Term: 76 decisions (54 Unrebutted, insurer prevails, 10 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 5 Insurer's proof insufficient, 5 Trial error, new trial)2011, Appellate Term: 56 decisions (42 Unrebutted, insurer prevails, 6 Provider's rebuttal sufficient, 2 Insurer raised triable issue, 2 Insurer's proof insufficient, 4 Trial error, new trial)2010, Appellate Term: 66 decisions (50 Unrebutted, insurer prevails, 5 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 2 Insurer's proof insufficient)2009, Appellate Term: 32 decisions (17 Unrebutted, insurer prevails, 2 Provider's rebuttal sufficient, 9 Insurer raised triable issue, 4 Insurer's proof insufficient)2008, Appellate Term: 29 decisions (14 Unrebutted, insurer prevails, 9 Insurer raised triable issue, 6 Insurer's proof insufficient)2007, Appellate Term: 9 decisions (3 Unrebutted, insurer prevails, 3 Insurer raised triable issue, 2 Insurer's proof insufficient, 1 Trial error, new trial)2006, Appellate Term: 20 decisions (1 Unrebutted, insurer prevails, 11 Insurer raised triable issue, 8 Insurer's proof insufficient)2005, Appellate Term: 16 decisions (6 Insurer raised triable issue, 10 Insurer's proof insufficient)2004, Appellate Term: 10 decisions (1 Insurer raised triable issue, 9 Insurer's proof insufficient)2003, Appellate Term: 1 decision (1 Insurer raised triable issue)2022, Trial courts: 6 decisions (4 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2021, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Provider's rebuttal sufficient)2017, Trial courts: 2 decisions (1 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2015, Trial courts: 1 decision (1 Unrebutted, insurer prevails)2014, Trial courts: 3 decisions (2 Provider's rebuttal sufficient, 1 Insurer's proof insufficient)2013, Trial courts: 2 decisions (1 Unrebutted, insurer prevails, 1 Trial error, new trial)2012, Trial courts: 7 decisions (4 Unrebutted, insurer prevails, 3 Insurer's proof insufficient)2011, Trial courts: 4 decisions (4 Insurer's proof insufficient)2010, Trial courts: 10 decisions (2 Unrebutted, insurer prevails, 7 Insurer's proof insufficient, 1 Trial error, new trial)2009, Trial courts: 5 decisions (2 Unrebutted, insurer prevails, 2 Insurer raised triable issue, 1 Insurer's proof insufficient)2008, Trial courts: 11 decisions (6 Unrebutted, insurer prevails, 5 Insurer's proof insufficient)2007, Trial courts: 5 decisions (1 Provider's rebuttal sufficient, 4 Insurer's proof insufficient)2006, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2005, Trial courts: 9 decisions (2 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 6 Insurer's proof insufficient)2004, Trial courts: 8 decisions (1 Unrebutted, insurer prevails, 1 Insurer raised triable issue, 5 Insurer's proof insufficient, 1 Trial error, new trial)2003, Trial courts: 1 decision (1 Insurer's proof insufficient)2026, Trial courts: 1 decision (1 Provider's rebuttal sufficient)2025, Trial courts: 1 decision (1 Unrebutted, insurer prevails)This decision
20052010201520202025
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 617 decisions on this question in the Second Department courts and the Court of Appeals, 109 (this one included) are in the same category.

Cited in this decision

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

  • A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194) FollowedAn insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
  • Summit Psychological, P.C. v General Assur. Co. (2005 NY Slip Op 25263) FollowedThe insurer failed to establish timely mailing of its denials or proper mailing of preclaim IME requests.
  • East Acupuncture, P.C. v Allstate Ins. Co. (2005 NY Slip Op 25242) Declined to followThe interest suspension in 11 NYCRR 65.15 (h) (3) does not apply to a provider assignee that delays suit after receiving a denial.
  • CPT Med. Serv., P.C. v Utica Mut. Ins. (2006 NY Slip Op 26098) FollowedThe insurer's post-assignment EUO transcripts were excluded at trial as hearsay against the provider assignee.
  • A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.

Cited by

A label shows how the later decision treated this one.

  • Elmont Open MRI & Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (2007 NY Slip Op 27072) Declined to followInterest on unpaid no-fault benefits runs from 30 days after claim receipt when the insurer issues no valid denial within that period.
  • East Acupuncture, P.C. v Allstate Ins. Co. (2009 NY Slip Op 01191)The interest toll under 11 NYCRR 65-3.9 (c) applies to provider assignees as well as injured claimants.
  • Alpha Chiropractic P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 26498)Statutory interest and attorney's fees on unpaid no-fault bills are calculated separately for each NF-3, even for one assignor.

Similar decisions

  • Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co. (2007 NY Slip Op 27323)No-fault interest is tolled upon receipt of a denial if the claimant does not sue or seek arbitration within 30 days.
  • Vista Surgical Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (2007 NY Slip Op 51127(U))Interest on the provider's claim accrued from filing the summons, despite an untimely or improper denial.
  • Medalliance Med. Health Servs. v Allstate Ins. Co. (2013 NY Slip Op 23156)A provider may recover demanded interest on overdue no-fault payments even when the interest does not exceed five dollars.
  • Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins Co. (2005 NY Slip Op 51058(U))The insurer failed to toll its late denials or submit competent low-impact evidence supporting its lack-of-causation defense.
  • East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
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