April 24, 2007

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)

https://www.beynensonlaw.com/case-law/a-b-med-servs-pllc-v-liberty-mut-ins-co-2007-ny-slip-op-03636/

Court: Appellate Division, Second Department
Decided: April 24, 2007
Citation: 2007 NY Slip Op 03636 · 39 AD3d 779
Posture: Summary judgment
Outcome: Insurer prevailed
Earlier history: Appeal from A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U)) (Reversed)
Later treatment: Contrasted (cf., but see) in 2 and followed in 16 later decisions (see Cited by)
Issues: Medical necessity
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 (2d 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.

An insurer denying no-fault benefits for lack of medical justification need not include a medical rationale in the prescribed denial form. Under 11 NYCRR 65-3.8 (b) (4), an insurer relying on a medical examination or peer review must release the report upon written request; neither that provision nor the prescribed form under 11 NYCRR 65-3.4 (c) (11) requires the rationale in the denial itself. The provider established mailing and receipt of its bills and overdue payment, but the insurer raised a factual issue concerning lack of medical justification. The Appellate Division, Second Department, reversed the Appellate Term's order, insofar as appealed from, and affirmed the appealed portion of the Civil Court, Kings County, order denying the provider summary judgment on the claim.

Reported in New York Official Reports at A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (2007 NY Slip Op 03636)

A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co.

2007 NY Slip Op 03636 [39 AD3d 779]

April 24, 2007

Appellate Division, Second Department

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

As corrected through Wednesday, June 6, 2007

A.B. Medical Services, PLLC, Respondent, et al., Plaintiffs,
v
Liberty Mutual Insurance Company, Appellant.

—[*1] Bee Ready Fishbein Hatter & Donovan LLP, Mineola, N.Y. (Joshua M. Jemal, Robert E. Fekete, and Peter A. Bee of counsel), for appellant.

Marylou A. Paolucci, Smithtown, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated November 21, 2005, as reversed so much of an order of the Civil Court of the City of New York, Kings County (E. Spodek, J.), dated June 30, 2004, as denied that branch of the motion of the plaintiff A.B. Medical Services, PLLC, which was for summary judgment on the cause of action to recover the sum of $1,999.12, and granted that branch of the motion.

Ordered that the order dated November 21, 2005, is reversed insofar as appealed from, on the law, with costs, and the order of the Civil Court of the City of New York, Kings County, dated June 30, 2004, is affirmed insofar as it was appealed from.

To the extent the Appellate Term’s order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. 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 [*2]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 (see A.B. Med. Servs. v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007] [decided herewith]).

While the plaintiff A.B. Medical Services, PLLC (hereinafter A.B. Medical), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]), in response, the defendant raised a triable issue of fact with respect to its argument that the claimed benefits were properly denied on the ground of lack of medical justification (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Civil Court of the City of New York correctly denied that branch of A.B. Medical’s motion which was for summary judgment on the cause of action to recover the sum of $1,999.12. 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.

Claimant's prima facie case on motions

Open the full map

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 made its prima facie showing by evidentiary proof that the statutory billing forms were mailed and received and that payment was overdue, though summary judgment was denied on a triable issue.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limitedDeclined to follow, questioned, overruled or reversed

Of the 1,065 decisions on this question in the Second Department courts and the Court of Appeals, 513 (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.

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 was enough to defeat the provider's motion but not to win (rules on the question, but another ground decided the case)

Held the insurer raised a triable issue that the benefits were properly denied for lack of medical justification, so the provider's motion was correctly denied.

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, 67 (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 in this decision

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

A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635)An insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.
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.
Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235)The insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
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.
A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 51902(U)) ReversedA sufficient peer review report cannot cure a denial that omits the factual basis and medical rationale for lack of medical necessity.

Cited by (37)

A label shows how the later decision treated this one.

New York & Presbyt. Hosp. v American Tr. Ins. Co. (2007 NY Slip Op 09376) Contrasted (cf., but see)The insurer raised a factual issue by showing a timely denial based on bills submitted more than 45 days after the last medical service.
Quality Psychological Servs., P.C. v Avis Rent-A-Car Sys., LLC (2015 NY Slip Op 50378(U)) Contrasted (cf., but see)A denial based on two missed EUOs is not conclusory, vague or meritless as a matter of law merely because it omits the scheduled dates.
Delta Diagnostic Radiology, P.C. v Chubb Group of Ins. (2007 NY Slip Op 27345) FollowedAn insurer may prove mailing by describing its standard procedure for properly addressing and mailing items.
A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co. (2007 NY Slip Op 03635) FollowedAn insurer need not include a medical rationale in a denial form based on a medical examination or peer review report.
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.
Countrywide Ins. Co. v 563 Grand Med., P.C. (2008 NY Slip Op 03059) FollowedAn insurer need not state its medical rationale in the prescribed denial form, and a nurse's medical necessity review is not per se invalid.
Davydov v Progressive Ins. Co. (2009 NY Slip Op 29299) FollowedThe insurer's assignment defense was precluded because it neither sought verification of the facial discrepancy nor denied on that ground.
Sunshine Imaging Assn./WNY MRI v Government Empls. Ins. Co. (2009 NY Slip Op 06984) FollowedThe insurer's medical-necessity denials raised a triable issue, and severance was proper for claims arising from 14 unrelated accidents.
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.
Delta Diagnostic Radiology, P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 50535(U)) FollowedThe insurer's detailed peer reviews established lack of medical necessity for the MRIs, and the provider offered no rebuttal.

Show all 37 citing decisions

Similar decisions

A.B. Med. Servs. v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50507(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
A.B. Med. Servs., Pllc v N. Y. Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 50550(U))An insurer opposing summary judgment on medical necessity must submit admissible proof even if unaffirmed reports supported a timely denial.
A.b. Med. Servs. Pllc v Cna Ins. Co. (2004 NY Slip Op 50061(U))The provider obtained summary judgment on a neurological-testing claim denied after 30 days, but peer reviews raised issues on the remaining claims.
A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.