October 13, 2016

Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))

https://www.beynensonlaw.com/case-law/al-acupuncture-p-c-v-praetorian-ins-co-2016-ny-slip-op51515u/

Court: Appellate Term, Second Department
Decided: October 13, 2016
Citation: 2016 NY Slip Op 51515(U) · 53 Misc 3d 140(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Medical necessity
Legal questions: Lack of medical necessity (see the maps)

Cite as

Al Acupuncture, P.C. v Praetorian Ins. Co., 53 Misc 3d 140(A), 2016 NY Slip Op 51515(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 sworn IME report established lack of medical necessity, and the provider did not oppose the cross motion. The Civil Court denied summary judgment on the claims at issue and limited trial to medical necessity under CPLR 3212 (g). The report supplied a factual basis and medical rationale for finding the services unnecessary. That prima facie showing remained unrebutted, and the provider did not challenge the finding that the insurer was otherwise entitled to judgment on those claims. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted the branch of the insurer's cross motion dismissing the claims reserved for trial.

Reported in New York Official Reports at Al Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51515(U))

[*1]

AL Acupuncture, P.C. v Praetorian Ins. Co.

2016 NY Slip Op 51515(U) [53 Misc 3d 140(A)]

Decided on October 13, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 13, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2432 K C

AL Acupuncture, P.C., as Assignee of YANA SIMONYAN, Respondent,
against
Praetorian Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered June 21, 2013. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is 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 dismissing the complaint on various grounds, including lack of medical necessity. As to so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009, the Civil Court denied both the motion and the cross motion, but limited the issues for trial to the medical necessity of those claims (see CPLR 3212 [g]). As limited by its brief, defendant appeals from so much of the order as denied the branch of its cross motion seeking summary judgment dismissing those claims.

In support of its cross motion, defendant submitted a sworn report of an independent medical examination, which report set forth a factual basis and medical rationale for the examiner’s determination that there was a lack of medical necessity for the services at issue. Plaintiff failed to oppose defendant’s cross motion. As defendant’s prima facie showing that the services were not medically necessary was unrebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on the claims at issue, the order, insofar as appealed from, is reversed and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered from October 27, 2008 to April 23, 2009 is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 13, 2016

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

Granted the insurer summary judgment because its sworn IME report set out a factual basis and medical rationale for lack of medical necessity, and the provider did not oppose the cross motion.

Unrebutted, insurer prevailsProvider's rebuttal sufficientInsurer raised triable issueInsurer's proof insufficientTrial error, new trialThis decision

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.

Similar decisions

Sal Med., P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51516(U))The insurer's cross motion for summary judgment on the claims reserved for trial on medical necessity was granted on appeal.
Gl Acupuncture, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 51419(U))The insurer proved fee-schedule payment for services billed under CPT codes 97810 and 97811, but not entitlement to dismiss the initial-visit claim.
PLP Acupuncture, P.C. v Progressive Cas. Ins. Co. (2009 NY Slip Op 50491(U))The insurer's peer review report and acupuncturist's affidavit established lack of medical necessity, and the provider failed to rebut that showing.
Health Needles Acupuncture, P.C. v Praetorian Ins. Co. (2014 NY Slip Op 51831(U))A letter merely announcing delay pending an assignor's IME and EUO does not toll the time to pay or deny a no-fault claim.
Raz Acupuncture, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 50305(U))The insurer's unrebutted IME report established lack of medical necessity for acupuncture services from October 30, 2007 through January 30, 2008.