April 24, 2007
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)
https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-geico-cas-ins-co-2007-ny-slip-op-03635/
- Decided
- April 24, 2007
- Citation
- 2007 NY Slip Op 03635 · 39 AD3d 778
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 7 later decisions (see Cited by)
- Legal questions
- Claimant's prima facie case on motions · Lack of medical necessity (see the maps)
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.
Reported in New York Official Reports at A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)
| A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. |
| 2007 NY Slip Op 03635 [39 AD3d 778] |
| April 24, 2007 |
| Appellate Division, Second Department |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| A.B. Medical Services, PLLC, Respondent, v GEICO Casualty Insurance Co., Appellant. |
—[*1] Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant.
Amos Weinberg, Great Neck, N.Y., for respondent.
In an action to recover no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated April 6, 2006, which modified an order of the Civil Court of the City of New York, Kings County (R. Garson, J.), dated May 17, 2004, granting the plaintiff’s motion for summary judgment awarding the sum of $4,061.96, plus interest and an attorney’s fee, to provide that the plaintiff’s motion for summary judgment was granted only to the extent of awarding the plaintiff the sum of $3,971.20, and remitting the matter for the calculation of interest and an assessment of an attorney’s fee.
Ordered that the order of the Appellate Term is reversed, on the law, with costs, the order of the Civil Court of the City of New York, Kings County, is reversed, and the plaintiff’s motion for summary judgment is denied.
Under the circumstances presented, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; cf. Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). Accordingly, the plaintiff’s motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).
Even assuming the plaintiff had made a prima facie showing of entitlement to summary judgment, we conclude that the defendant succeeded in raising a triable issue of fact in [*2]response (see Alvarez v Prospect Hosp., supra). For the reasons set forth in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (39 AD3d 779 [2007] [decided herewith]), and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (39 AD3d 832 [2007] [decided herewith]), we disagree with the Appellate Term’s conclusion that the defendant’s denial of claim forms were insufficient because they failed to set forth with sufficient particularity the factual basis and medical rationale upon which they were based. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided.
In light of the foregoing determination, we need not address the defendant’s remaining contentions. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.
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.
On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?
This decision: Insufficient: claimant did not prove the claim was submitted (mailed to and received by the insurer)
Held the provider failed to make a prima facie showing of entitlement to summary judgment, so its motion had to be denied regardless of the sufficiency of the opposing papers.
Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 78 (this one included) are in the same category.
Did the insurer’s proof establish lack of medical necessity, and did the provider’s evidence rebut it?
This decision: Insurer's proof was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)
Held in the alternative that the insurer raised a triable issue against the provider's motion on its peer-review-based denials, rejecting the view that the denial forms had to state a factual basis and medical rationale.
Of the 617 decisions on this question in the Second Department courts and the Court of Appeals, 67 (this one included) are in the same category.
Cited in this decision
A label shows how this decision treated the case it cites.
- Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (2006 NY Slip Op 08214) Contrasted (cf., but see)An insurer waives claim-form and assignment defenses by failing to timely object to form adequacy or seek assignment verification.
- 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.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671) FollowedAn insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
Cited by (16)
A label shows how the later decision treated this one.
- AVA Acupuncture, P.C. v GEICO Gen. Ins. Co. (2007 NY Slip Op 27371) FollowedAn insurer may use the workers' compensation fee schedule for chiropractors to reimburse acupuncture performed by a licensed acupuncturist.
- Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co. (2014 NY Slip Op 01166) FollowedAn insurer's denial need not include a peer review report or other medical evidence when issued under 11 NYCRR 65-3.8.
- Millennium Radiology, P.C. v New York Cent. Mut. Fire Ins. Co.(2009 NY Slip Op 50877(U)) FollowedThe insurer's peer review raised a medical-necessity issue but did not establish entitlement to summary judgment on the MRI claims.
- Careplus Med. Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2008 NY Slip Op 28341) FollowedAn insurer's failure to supply a requested peer review report does not preclude its medical-necessity defense.
- Aries Chiropractic, P.C. v Ameriprise Ins. Co. (2019 NY Slip Op 52064(U)) FollowedAn EUO nonappearance denial need not list the dates of the EUOs the provider failed to attend.
- Odessa Med. Supply, Inc. (b) v Government Employees Ins. Co. (2007 NY Slip Op 27542) FollowedA timely medical-necessity denial need not state the factual basis or medical rationale supporting it.
- East Coast Med. Care, P.C. v State Farm Mut. Auto Ins.Co. (2008 NY Slip Op 50118(U)) FollowedThe insurer's NF-10 forms sufficiently stated the factual basis for denial by identifying an independent consultant's review.
- A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form.
- New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (2007 NY Slip Op 03671)An insurer need not set forth a medical rationale in a denial form when the denial rests on a medical examination or peer review report.
- A-Quality Med. Supply v GEICO Gen. Ins. Co. (2013 NY Slip Op 23088)An insurer's peer review report is inadmissible at trial to prove lack of medical necessity.
Show all 16 citing decisions
- Forrest Chen Acupuncture Servs., P.C. v GEICO Ins. Co. (2008 NY Slip Op 07211)
- Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)
- New York Univ. Hosp.-Tisch Inst. v Government Empls. Ins. Co. (2014 NY Slip Op 03812)
- Orthotic Surgical & Med. Supply, Inc. v GEICO Ins. Co. (2008 NY Slip Op 51540(U))
- NY Comprehensive Med., P.C. v Maryland Cas. Co. (2008 NY Slip Op 50521(U))
- Andrew Carothers, M.D., P.C. v New York Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51613(U))
Similar decisions
- A.I.D. Med. Supplies v GEICO Gen. Ins. Co. (2007 NY Slip Op 51044(U))An insurer need not set forth the medical rationale for a peer-review denial in the prescribed denial form.
- A.B. Med., PLLC v GEICO (2013 NY Slip Op 50203(U))The provider failed to establish that the insurer's denials were untimely or without merit as a matter of law.
- Park Neurological Servs. P.C. v GEICO Ins. (2004 NY Slip Op 24210)The insurer's denial did not set forth a factual basis and medical rationale for lack of medical necessity, precluding its medical-necessity defense.
- Starrett Med. L.C.P.C. v GEICO Cas. Ins. Co. (2006 NY Slip Op 52493(U))The insurer was precluded from asserting medical necessity because its denials lacked factual grounds and timely delivery of peer reviews was unproved.
- A.B. Med. Servs. PLLC v Clarendon Natl. Ins. Co. (2006 NY Slip Op 51415(U))A peer review submitted on summary judgment cannot cure a medical-necessity denial lacking specific facts and medical rationale.