January 28, 2010
B.Y., M.D., P.C. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50144(U))
https://www.beynensonlaw.com/case-law/b-y-m-d-p-c-v-progressive-cas-ins-co-2010-ny-slip-op-50144u/
- Decided
- January 28, 2010
- Citation
- 2010 NY Slip Op 50144(U) · 26 Misc 3d 135(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 8 later decisions (see Cited by)
- Issues
- Medical necessity
- Legal questions
- 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 B.Y., M.D., P.C. v Progressive Cas. Ins. Co. (2010 NY Slip Op 50144(U))
| B.Y., M.D., P.C. v Progressive Cas. Ins. Co. |
| 2010 NY Slip Op 50144(U) [26 Misc 3d 135(A)] |
| Decided on January 28, 2010 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : NICOLAI, P.J., TANENBAUM and LaCAVA, JJ
2009-955 N C.
against
Progressive Casualty Insurance Company, Respondent.
Appeal from an order of the District Court of Nassau County, Third District (Michael A. Ciaffa, J.), dated April 8, 2009. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for partial summary judgment and granted defendant’s cross motion for summary judgment dismissing various claims of plaintiffs on the ground of lack of medical necessity.
ORDERED that the order, insofar as appealed from, is affirmed without costs.
In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved
for “partial summary judgment,” asserting that, pursuant to CPLR 3212
(e) or, in the alternative, CPLR 3212 (g), the District Court should determine that
plaintiffs had established their prima facie case. Insofar as is relevant to this appeal,
defendant cross-moved for summary judgment dismissing various claims of plaintiffs on the
ground of lack of medical necessity. Plaintiffs appeal, as limited by their brief, from so much of
the order as denied their motion for partial summary judgment and granted defendant’s cross
motion for summary judgment dismissing various claims of plaintiffs on the ground of lack of
medical necessity.
In support of defendant’s cross motion for summary judgment, defendant annexed, among other things, an affirmed peer review report by a doctor, an affirmation by a doctor who had performed an independent medical examination and an affidavit by a chiropractor who had performed an independent medical examination. Since the foregoing documents set forth a factual basis and medical rationale for the doctors’ and chiropractor’s opinions that the services, [*2]which are the subject of the claims at issue, were not medically necessary, defendant established, prima facie, a lack of medical necessity for such services (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).
In opposition to the cross motion, plaintiffs submitted an affirmation from the doctor who had treated plaintiffs’ assignor, which affirmation was apparently missing at least one page. The portion of the affirmation which was contained in the record was insufficient to raise a triable issue of fact as it did not meaningfully refer to, or discuss, the determination of defendant’s doctors and chiropractor (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, defendant’s cross motion, insofar as it sought to dismiss various claims of plaintiffs on the ground of lack of medical necessity, was properly granted (see Exclusive Med. Supply, Inc., 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U]; Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Pan Chiropractic, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U]). Accordingly, the order, insofar as appealed from, is affirmed. We reach no other issue.
Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 28, 2010
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.
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 affirmed peer review and IME reports set forth a factual basis and medical rationale, and the treating doctor's incomplete affirmation did not meaningfully refer to them, so the insurer's cross motion was properly granted.
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.
Cited in this decision
A label shows how this decision treated the case it cites.
- Exclusive Med. Supply, Inc. v Mercury Ins. Group (2009 NY Slip Op 52273(U)) FollowedThe insurer's timely denials and unrebutted peer reviews established that the medical equipment lacked medical necessity.
- Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co. (2009 NY Slip Op 51502(U)) FollowedThe insurer's examining physician supplied an unrebutted factual basis and medical rationale that the billed MRI was unnecessary.
- 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.
Cited by
A label shows how the later decision treated this one.
- Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co. (2010 NY Slip Op 50829(U)) FollowedThe insurer's affirmed peer reviews raised a triable issue of medical necessity and defeated the provider's summary judgment motion.
- 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.
- Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50078(U)) FollowedThe insurer's chiropractor's affidavit and IME report established lack of medical necessity for the equipment, and the motion was unopposed.
- Total Equip., LLC v Praetorian Ins. Co. (2012 NY Slip Op 50155(U)) FollowedThe insurer's affirmed IME report established lack of medical necessity for the supplies, and the provider failed to rebut that showing.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Clarendon Natl. Ins. Co. (2010 NY Slip Op 52061(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable medical issue.
- Hilltop Med. Diagnostic & Treatment Ctr. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 52388(U)) FollowedThe insurer's affirmed peer review established lack of medical necessity, and the provider failed to raise a triable issue.
- Elmont Open MRI & Diagnostic Radiology, P.C. v Tri State Consumer Ins. Co. (2012 NY Slip Op 50079(U)) FollowedThe provider failed to submit medical evidence raising a triable issue in response to the insurer's sufficient medical-necessity peer review.
- Brownsville Advance Med., P.C. v Kemper Independence Ins. Co. (2012 NY Slip Op 51629(U)) FollowedThe insurer's IME report established lack of medical necessity, and the provider offered no opposing sworn evidence from a medical professional.
- American Tr. Ins. Co. v Right Choice Supply, Inc. (2023 NY Slip Op 23039)A no-fault arbitrator need not apply summary judgment rules requiring a provider's medical evidence to specifically rebut an insurer's peer review.
- Ayoob Khodadadi, M.D.,MRI, P.C. v Clarendon Natl. Ins. Co. (2012 NY Slip Op 51968(U))The insurer's peer review reports established lack of medical necessity, and the provider submitted no medical evidence raising a triable issue.
Similar decisions
- B.Y., M.D., P.C. v GEICO Cas. Ins. Co. (2010 NY Slip Op 50143(U))The providers' motion for partial summary judgment was denied, and that denial was affirmed.
- Bay Plaza Chiropractic, P.C. v Praetorian Ins. Co. (2012 NY Slip Op 52315(U))The provider's chiropractor affidavit raised a triable issue of medical necessity despite the insurer's supported peer review.
- Innovative Chiropractic, P.C. v New York Cent. Mut. Fire Ins. Co. (2010 NY Slip Op 50884(U))The treating doctor's conclusory reaffirmation of medical necessity failed to rebut the insurer's sworn peer review and IME reports.
- New Life Med., P.C. v Geico Ins. Co. (2012 NY Slip Op 50150(U))The provider's doctor's affirmation failed to meaningfully address or rebut the insurer's peer reviews finding lack of medical necessity.
- BLR Chiropractic, P.C. v American Tr. Ins. Co. (2012 NY Slip Op 50882(U))The insurer's peer review report and reviewing chiropractor's affidavit established lack of medical necessity, which the provider failed to rebut.