July 3, 2007

A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))

https://www.beynensonlaw.com/case-law/a-khodadadi-radiology-p-c-v-ny-cent-mut-fire-ins-co-2007-ny-slip-op-51342u/

Court: Appellate Term, Second Department
Decided: July 3, 2007
Citation: 2007 NY Slip Op 51342(U) · 16 Misc 3d 131(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 2 and followed in 151 later decisions (see Cited by)
Issues: Medical necessity Provider's prima facie case
Legal questions: Claimant's prima facie case on motions · Lack of medical necessity (see the maps)

Cite as

A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131(A), 2007 NY Slip Op 51342(U) (App Term, 2d Dept, 2d & 11th Jud Dists 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 insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity. The provider's owner also failed to establish personal knowledge of business practices sufficient to admit the documents supporting the provider's summary judgment motion. The Appellate Term, Second Department, affirmed the order, insofar as appealed from, denying that motion. Although the insurer had not cross-appealed the denial of its cross motion, the court searched the record under CPLR 3212 (b) and granted the insurer summary judgment dismissing the action. The peer review established lack of medical necessity and was not refuted. A separate concurrence agreed only with the result and expressed disagreement with certain propositions in the cited authorities.

Reported in New York Official Reports at A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co. (2007 NY Slip Op 51342(U))

[*1]

A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co.

2007 NY Slip Op 51342(U) [16 Misc 3d 131(A)]

Decided on July 3, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : GOLIA, J.P., RIOS and BELEN, JJ
2006-498 K C. NO. 2006-498 K C

A Khodadadi Radiology, P.C. a/a/o CARLOS GOMEZ, Appellant,
against
NY Central Mutual Fire Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Eileen Nadelson, J.), entered December 23, 2005. The order, insofar as appealed from, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs and, upon searching the record, defendant’s cross motion for summary judgment dismissing the action granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. The court denied both motions and plaintiff appeals from so much of the order as denied its motion for summary judgment.

On appeal, defendant asserts that the affidavit by plaintiff’s owner, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s owner was insufficient to establish that he possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Bath Med. Supply, [*2]Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Although defendant did not cross-appeal from so much of the order as denied its cross motion for summary judgment dismissing the action, pursuant to this Court’s authority to search the record and grant summary judgment to a non-appealing party, the cross motion for summary judgment should be granted (CPLR 3212 [b]; see e.g. Dunham v Hilco Constr. Co., 89 NY2d 425, 429-230 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]; Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co., 11 Misc 3d 135[A], 2006 NY Slip Op 50477[U] [App Term, 2d & 11th Jud Dists]). Defendant’s peer review report established prima facie that there was no medical necessity for the MRIs performed by plaintiff, which evidence was unrebutted, thereby entitling defendant to the relief it sought below (see Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists] [“(T)he insurer . . . if not precluded, may rebut the inference (of medical necessity) by proof in admissible form establishing that the health benefits were not medically necessary. . . . If not refuted by the no-fault benefits claimant, such proof may entitle the insurer to summary judgment”]).

Rios and Belen, JJ., concur.

Golia, J.P., concurs in a separate memorandum.
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : GOLIA, J.P., RIOS and BELEN, JJ.
A KHODADADI RADIOLOGY, P.C.
a/a/o CARLOS GOMEZ,

Appellant,

-against-
NY CENTRAL MUTUAL FIRE INS. CO.,

Respondent. [*3]

Golia, J.P., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: July 03, 2007

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: Insufficient: claim forms not shown admissible as business records / merits of claim not proved

Held the provider failed its prima facie showing because its owner's affidavit did not establish personal knowledge of its practices and procedures to lay a business-records foundation for the annexed documents.

Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 208 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is 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 established lack of medical necessity and the provider failed to rebut it

Held the insurer's peer review report established prima facie that the MRIs were not medically necessary and, being unrebutted, entitled it to summary judgment granted on a search of the record.

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 617 decisions on this question in the Second Department courts and the Court of Appeals, 315 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

Bath Med. Supply, Inc. v Deerbrook Ins. Co. (2007 NY Slip Op 50179(U)) FollowedThe insurer's challenge to the provider's business-records foundation was considered despite being raised for the first time on appeal.
Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 26483) FollowedThe provider failed to establish its prima facie case because its corporate officer did not lay a business-records foundation for the claim documents.
Ocean Diagnostic Imaging, P.C. v Nationwide Mut. Ins. Co. (2006 NY Slip Op 50477(U))The provider's action was premature because the provider and assignor failed to respond to timely EUO verification requests.
Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U)) FollowedA provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.

Cited by (224)

A label shows how the later decision treated this one.

Alur Med. Supply, Inc. v GEICO Ins. Co. (2011 NY Slip Op 50438(U)) Contrasted (cf., but see)The insurer established a medical necessity defense, but the provider's doctor's affirmation raised a triable issue.
Favorite Health Prods., Inc. v GEICO Ins. Co. (2013 NY Slip Op 50201(U)) Contrasted (cf., but see)The parties' medical submissions raised a triable issue about the equipment's medical necessity, precluding summary judgment for either side.
Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co. (2007 NY Slip Op 52455(U)) FollowedThe insurer's unrebutted peer review established that the provider's MRIs lacked medical necessity.
Pan Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 51495(U)) FollowedThe provider's conclusory disagreement with the insurer's supported peer review failed to raise a medical-necessity issue of fact.
Innovative Chiropractic, P.C. v Mercury Ins. Co. (2009 NY Slip Op 52321(U)) FollowedThe insurer established timely denials and lack of medical necessity, and the provider's chiropractor failed to rebut the insurer's showing.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U)) FollowedThe insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.
Park Slope Med. v Praetorian Ins. Co. (2013 NY Slip Op 50761(U)) FollowedThe provider's medical affirmation failed to rebut the insurer's peer review finding that the supplies were superfluous to existing therapy.
Crossbridge Diagnostic Radiology, P.C. v Progressive Ins. Co. (2008 NY Slip Op 51761(U)) FollowedThe insurer proved two claims medically unnecessary but failed to establish the assignor's EUO nonappearance on the remaining claim.
Continental Med., P.C. v Mercury Cas. Co. (2009 NY Slip Op 50234(U)) FollowedThe provider waived its objection to the chiropractor's affirmed IME report by failing to raise the defect in Civil Court.
Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 52062(U)) FollowedThe insurer's chiropractor supplied a sufficient medical rationale and factual basis for finding the services medically unnecessary.

Show all 224 citing decisions

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 State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 52370(U))The insurer's denial and affirmed peer-review report adequately stated the medical-necessity defense and raised a triable issue.
A Khodadadi Radiology, P.C. v Travelers Prop. Cas. Ins. Co. (2008 NY Slip Op 50910(U))The insurer's proof established timely mailing of its denial and raised a factual issue concerning medical necessity.
Complete Radiology, P.C. v Progressive Ins. Co. (2011 NY Slip Op 52015(U))The insurer's peer review report raised a triable issue of medical necessity and defeated the provider's summary judgment motion.